H. B. 2135
(By Delegates Amores, Hunt, Thompson,
Seacrist, Tillis, Faircloth and Thomas)
[Introduced February 18, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one and three, article
seven, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to confidentiality of juvenile records and removing the
prohibition against publishing the names of certain juvenile
offenders.
Be it enacted by the Legislature of West Virginia:
That sections one and three, article seven, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
§49-7-1. Confidentiality of records.
All records of the state department, the court and its officials, law-enforcement agencies and other agencies or
facilities concerning a child as defined in this chapter shall be kept confidential and shall not be released: Provided, That such
records, except adoption records, juvenile court records and
records disclosing the identity of a complainant of child abuse
or neglect, shall be made available (1) where authorized by this
chapter; (2) to the child, parent, or the attorney of the child
or parent, whether or not in connection with judicial
proceedings; (3) with the written consent of the child or of
someone authorized to act in the child's behalf; or (4) pursuant
to subpoena or order of a court of record: Provided, however,
That a subpoena for such records may be quashed if the court
determines that disclosure is not for a bona fide purpose and
compromises the confidentiality intended by this section. The
official court file pertaining to the person who is the subject
of a neglect or abuse proceeding shall be open for inspection
only to the child, the child's parent or custodian, their counsel
and other parties to the proceedings before the court. No
record or information shall be transmitted to any federal or
state agency except as specifically provided herein.
Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child shall be kept separate from the records and
files of adults and not included within the court files.
Law enforcement records and files concerning a child shall be
open to inspection pursuant to the provisions of section seventeen, article five of this chapter.
Any person who willfully violates this section shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in jail not
more than six months, or both such fine and imprisonment, and
shall be liable for damages in the amount of three hundred
dollars or actual damages, whichever is greater.
(a) Except as otherwise provided in this chapter, all
records concerning a child or juvenile which are maintained by a
state department, agency, court or law-enforcement agency shall
be kept confidential and shall not be released or disclosed to
anyone. No information regarding a child or juvenile, regardless
of whether such information is contained in a written record,
shall be disclosed to anyone by any state department, agency,
court or law enforcement agency. No juvenile records or
information may be transmitted to any federal or state agency
except as specifically provided in this chapter.
(b) Notwithstanding the provisions of subsection (a) of
this section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
law enforcement and court records, and records related to child
abuse or neglect proceedings, shall be made available:
(1) Where otherwise authorized by this chapter;
(2) To the child, parent, or the attorney of the child or parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to a subpoena or order of a court of record.
However, a subpoena for juvenile records may be quashed by a
court for good cause.
(c) Records related to child abuse or neglect proceedings
shall be made available for inspection only by the child, his or
her parents or custodian, the child's counsel, and other parties
to the proceeding. Adoption records, law enforcement records and
court records shall be made available only as otherwise
authorized by this code.
(d) Notwithstanding the provisions of subsection (a) of
this section or any other provision of this chapter to the
contrary, the name and age of a child or juvenile who has
attained the age of ten years, and the type of offense with which
he or she is charged, may be released to the general public in
cases in which the child or juvenile has been charged with first
or second degree murder, malicious or unlawful assault,
kidnapping, first or second degree arson, first or second degree
sexual assault, incest, child abuse, or any offense which would
be a felony if it was committed by an adult and which involves
the use of a firearm or other deadly weapon. However, the name
of the child or juvenile who has been charged with one or more of these offenses shall not be released until a judge, magistrate,
or juvenile referee has determined that there is probable cause
to believe that the crime occurred, and that it was committed by
the child or juvenile who has been charged. Information
regarding a child or juvenile who has not been charged with one
or more of the crimes specifically included in this subsection,
or a child or juvenile who has not attained the age of ten years,
shall not be released to the general public by any state
department, agency, court or law-enforcement agency.
(e) Any person who willfully violates this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, incarcerated not more
than six months, or be both fined and incarcerated. Furthermore,
a person who willfully violates this section shall also be liable
for damages in the amount of three hundred dollars or the actual
amount of damages, whichever is greater.
§49-7-3. Proceedings under chapter not to be used as evidence
against a child; adjudication not deemed conviction and not bar to civil service eligibility.
(a) No evidence which is received, nor any order, judgment,
or finding which is entered in a proceeding under this chapter
may be used against a child or juvenile who was a party to that
proceeding in any other case except a subsequent case under this chapter which involves the same child or juvenile.
(b) A child or juvenile may not be deemed to be a criminal
by reason of any adjudication regarding the status of the child
or juvenile by any court in West Virginia, and the adjudication
may not impose any of the civil disabilities which are ordinarily
imposed by a criminal conviction. An adjudication shall also not
disqualify a child or juvenile for any future civil service
examination, appointment or application.
NOTE: The purpose of this bill is to permit the general
public to have access to the names of certain juveniles who are
charged with certain serious crimes and to allow the media to
publish the names of those juvenile offenders.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
which would be added.
§49-7-3 has been completely rewritten; therefore,
strike-throughs and underscores are omitted.