H. B. 4669
(By Delegates Cann, Kominar, Craig, Palumbo,
Mahan, Pino, Varner, Stemple, Perry and Beach)
[Introduced February 21, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-8B-3 and §61-8B-7 of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto two new sections, designated §61-8B-3a and §61-8B-7a;
and to amend and reenact §62-12-2 of said code, all relating
to sexual assault and sexual abuse of minors; providing new
criminal offenses of aggravated sexual assault and aggravated
sexual abuse; clarifying the age of perpetrators of certain
sexual offenses; and eliminating probation for persons found
guilty of aggravated sexual assault and aggravated sexual
abuse.
Be it enacted by the Legislature of West Virginia:
That §61-8B-3 and §61-8B-7 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that said code be amended by
adding thereto two new sections, designated §61-8B-3a and
§61-8B-7a; and that §62-12-2 of said code be amended and reenacted,
all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person and, in so doing:
(I) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being
at least fourteen years old,
or more but
less than eighteen years old engages in sexual intercourse or
sexual intrusion with another person who is eleven years old or
less and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than fifteen
nor more than thirty-five years, or fined not less than one
thousand dollars nor more than ten thousand dollars and imprisoned
in a state correctional facility not less than fifteen nor more
than thirty-five years.
§61-8B-3a. Aggravated sexual assault.
(a) A person is guilty of aggravated sexual assault when the
person, being eighteen years old or more engages in sexual
intercourse or sexual intrusion with another person who is twelve
years old or less and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than twenty-five years nor more than life, or fined not less than one
thousand dollars and imprisoned not less than twenty-five years nor
more than life. Any person convicted under the provisions of this
section is not eligible for probation under the provisions of
section two, article twelve, chapter sixty-two of this code.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree
when:
(1) Such person subjects another person to sexual contact
without their consent, and the lack of consent results from
forcible compulsion; or
(2) Such person subjects another person to sexual contact who
is physically helpless; or
(3) Such person, being
at least fourteen years old,
or more
but less than eighteen years old subjects another person to sexual
contact who is eleven years old or less.
(b) Any person who violates the provisions of this section
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in
the penitentiary a state correctional facility not
less than one year nor more than five years, or fined not more than
ten thousand dollars and imprisoned in
the penitentiary a state
correctional facility not less than one year nor more than five
years.
§61-8B-7a. Aggravated sexual abuse.
(a) A person is guilty of aggravated sexual abuse when the
person, being eighteen years old or more, subjects another person who is twelve years old or less to sexual contact.
(b) Any person who violates the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than five
years nor more than twenty-five years, or fined not more than ten
thousand dollars and imprisoned not less than five years nor more
than twenty-five years. Any person convicted under the provisions
of this section is not eligible for probation under the provisions
of section two, article twelve, chapter sixty-two of this code.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any
felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this section
shall apply to an accessory before the fact or a principal in the
second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm.
(c) (1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be
applicable unless such fact is clearly stated and included in the
indictment or presentment by which such person is charged and is
either: (I) Found by the court upon a plea of guilty or nolo
contendere; or (ii) found by the jury, if the matter be tried
before a jury, upon submitting to such jury a special interrogatory
for such purpose; or (iii) found by the court, if the matter be
tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment
or presentment returned on or after the first day of August of that
year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to such jury on or after the first day of August of
that year or to the requisite findings of the court upon a plea of
guilty or in any case tried without a jury: Provided, That the
state shall give notice in writing of its intent to seek such
finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such finding
shall be sought as fully as such grounds are otherwise required to
be stated in an indictment, unless the grounds therefor are alleged
in the indictment or presentment upon which the matter is being
tried;
(D) Shall not apply with respect to cases not affected by such
amendment and in such cases the prior provisions of this section
shall apply and be construed without reference to such amendment;
and
Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
be proved beyond a reasonable doubt in all cases tried by the jury
or the court.
(d) For the purpose of this section, the term "firearm" shall
mean any instrument which will, or is designed to, or may readily
be converted to, expel a projectile by the action of an explosive,
gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of, or
pleaded guilty to, a felony or misdemeanor under the provisions of
section twelve or twenty-four, article eight, chapter sixty-one of
this code, or under the provisions of article eight-c or eight-b of
said chapter, subject to the limitations included in subsection (h)
of this section such the person shall only be eligible for
probation after undergoing a physical, mental and psychiatric study
and diagnosis which shall include an on-going treatment plan
requiring active participation in sexual abuse counseling at a mental health facility or through some other approved program:
Provided, That nothing disclosed by the person during such study or
diagnosis shall be made available to any law-enforcement agency, or
other party without that person's consent, or admissible in any
court of this state, unless such information disclosed shall
indicate the intention or plans of the probationer to do harm to
any person, animal, institution or property, in which case such
information may be released only to such persons as might be
necessary for protection of the said person, animal, institution or
property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen, article
eight, chapter sixty-one of this code, or of a felony violation
involving a minor of section six or seven, article eight, chapter
sixty-one of this code, or of a similar provision in another
jurisdiction shall be required to be registered upon release on
probation. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this subsection shall also
be registered upon release on probation.
(g) The probation officer shall within three days of release
of the offender, send written notice to the State Police of the
release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was
convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent
predator as defined in section two-a, article twelve, chapter
fifteen of this code, the notice shall also include:
(I) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
(h) Notwithstanding the provisions of subsection (e) of this
section, any person who has been found guilty of, or pleaded guilty
to, a felony under the provisions of section three-a or seven-a,
article eight-b, chapter sixty-one is not eligible for probation.
NOTE: The purpose of this bill is to establish new criminal
sexual offenses committed against minors. Under the bill, persons
convicted of aggravated sexual assault and aggravated sexual abuse
of a minor are not eligible for probation. The bill provides a
felony penalty of not less than twenty-five years for aggravated
sexual assault, a felony penalty of not less than five years for
aggravated sexual abuse to be served in a state correctional
facility and clarifies the age of a perpetrator of sexual assault
and sexual abuse in the first degree.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-8b-3a and §61-8b-7a
are new; therefore, strike-throughs
and underscoring have been omitted.
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