Senate Bill No. 236
(By Senators Buckalew, Dugan, Kimble, Minear and Grubb)
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[Introduced February 1, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section nine-a, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to stalking;
penalties; and definitions.
Be it enacted by the Legislature of West Virginia:
That section nine-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; penalties; definitions.
(a) Any person who knowingly, willfully, and repeatedly
follows and harasses, or knowingly, willfully, and repeatedly
follows and makes a credible threat or knowingly, willfully and
repeatedly harasses and makes a credible threat against a person
with whom he or she has, or in the past has had or with whom he
or she seeks to establish a personal or social relationship, whether or not such intention is reciprocated, or against a
member of that person's immediate family, with the intent to
place that person in reasonable apprehension that he or she or a
member of his or her immediate family will suffer death, bodily
injury, sexual assault, battery or kidnapping, is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated
in the county or regional jail for not more than six months or
fined not more than one thousand dollars, or both.
(b) Notwithstanding the provisions of section ten, article
two-a, chapter forty-eight of this code, any person who violates
the provisions of subsection (a) of this section in violation of
an order entered by a circuit court, magistrate court or family
law master, in effect and entered pursuant to section thirteen or
fifteen, article two, chapter forty-eight of this code or section
five or six, article two-a, chapter forty-eight is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated
in the county jail for not less than ninety days nor more than
one year or fined not less than two thousand dollars nor more
than five thousand dollars, or both.
(c) A second conviction for a violation of this section
occurring within five years of a prior conviction is punishable
by incarceration in the county jail for not less than ninety days
nor more than one year or fined not less than two thousand
dollars nor more than five thousand dollars, or both.
(d) A third or subsequent conviction for a violation of this section occurring within five years of a prior conviction is a
felony punishable by incarceration in the penitentiary for not
less than one year nor more than five years or fined not less
than three thousand dollars nor more than ten thousand dollars,
or both.
(e) Notwithstanding any provision of this code, any person
against whom a permanent restraining order issued pursuant to
subsection (i) of this section who is convicted of a second or
subsequent violation of the provisions of this section shall be
incarcerated in the county jail for not less than six months nor
more than one year, or fined not less than two thousand dollars
nor more than five thousand dollars, or both.
(f) For the purposes of this section:
(1) "Harasses" means knowing and willful conduct directed at
a specific person which is done with the intent to cause mental
injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the
result that a reasonable person would believe that the threat
would be carried out;
(3) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition;
(4) "Immediate family" means a spouse, parent, child,
sibling, or any person who regularly resides in the household or
within the prior six months regularly resided in the household.
(g) Nothing in this section shall be construed to prevent
lawful assembly and petition for the redress of grievances,
including, but not limited to: Any labor dispute; demonstration
at the seat of federal, state, county or municipal government;
activities protected by the West Virginia Constitution or the
United States Constitution or any statute of this state or the
United States.
(h) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended shall have
as a condition of probation or suspension of sentence that he or
she participate in counseling or medical treatment as directed by
the court.
(i) Upon conviction, the court may issue an order
restraining the defendant from any contact with the victim for a
period not to exceed ten years. The length of any restraining
order shall be based upon the seriousness of the violation before
the court, the probability of future violations, and the safety
of the victim or his or her immediate family. The duration of
the restraining order may be longer than five years only in such
cases when a longer duration is necessary to protect the safety
of the victim or his or her immediate family.
(j) It shall be a condition of bond for any person accused
of the offense described in this section that the person shall
have no contact, direct or indirect, verbal or physical, with the alleged victim.
(k) Nothing in this section shall be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative
sentence.
NOTE: The purpose of this bill is to expand the
applicability of the stalking provisions to all persons who
engage in the proscribed conduct, and not just to individuals who
have had a prior sexual relationship with the victim or who are
seeking a personal or social relationship.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.