Senate Bill No. 533
(By Senators Kessler, Unger, Minard, Chafin and Plymale)
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[Introduced February 10, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §61-8D-5 of the Code of West Virginia,
1931, as amended, relating to conforming the statutory
language of subsection (b) of the statute to the title of the
statute by embodying in subsection (b) that the offense may be
committed by "allowing" the described sexual abuse; and
preserving prior law.
Be it enacted by the Legislature of West Virginia:
That §61-8D-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person
in a position of trust to a child; parent, guardian,
custodian or person in a position of trust allowing
sexual abuse to be inflicted upon a child; displaying
of sex organs by a parent, guardian, or custodian; penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such conduct, or the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in
the penitentiary a correctional facility not less
than ten nor more than twenty years, or fined not less than $500
nor more than $5,000 and imprisoned in
the penitentiary a
correctional facility not less than ten years nor more than twenty
years.
(b) If any parent, guardian, custodian or other person in a
position of trust in relation to the child shall knowingly procure
or allow another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when
such child is less than sixteen years of age, notwithstanding the
fact that the child may have willingly participated in such conduct
or the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct,
such parent, guardian, custodian or person in a position of trust
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than five years nor more
than fifteen years, or fined not less than $1,000 nor more than
$10,000 and imprisoned in
the penitentiary a correctional facility
not less than five years nor more than fifteen years.
(c) If any parent, guardian, custodian or other person in a
position of trust in relation to the child shall knowingly procure
another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, custodian or person in a position of trust when
such child is sixteen years of age or older, notwithstanding the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in
the penitentiary a correctional facility not less
than one year nor more than five years.
(d) The provisions of this section shall not apply to a
custodian or person in a position of trust whose age exceeds the
age of the child by less than four years.
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(NOTE: The purpose of this bill is to conform the statutory
language of subsection (b) to the title of the state by embodying
in subsection (b) that the offense may be committed by "allowing"
the described sexual abuse.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
)