WEST VIRGINIA LEGISLATURE

2022 REGULAR SESSION

Introduced

House Bill 4600

By Delegates Mazzocchi, Ellington, Kimble, Bridges, Maynor, Kessinger, Toney, Ferrell, Longanacre, Holstein, and Capito

[Introduced February 09, 2022; Referred to the Committee on the Judiciary]

A BILL to amend and reenact §61-2-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-8D-5a and §61-8D-11 of said code, all relating to penalties for assault, battery, and verbal abuse of a child; creating the offense of assault of a child by a person in a position of trust and specifying penalties; creating the offense of assault of a child by a person in a position of trust and specifying penalties; creating the offense of battery assault of a child by a person in a position of trust and specifying penalties;  and creating the offense of failure of a mandatory reporter to report and specifying penalties.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-9.  Malicious or unlawful assault; assault; assault of a child by a person in a position of trust; battery; battery of a child by a person in a position of trust; penalties.

(a) If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she, except where it is otherwise provided, is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years.  If the act is done unlawfully, but not maliciously, with the intent aforesaid, the offender is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding $500.

(b) Assault. —

(1) Any person who unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act that places another in reasonable apprehension of immediately receiving a violent injury is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months or fined not more than $100, or both fined and confined.

(2) Any “person in a position of trust in relation to a child”, as defined by §61-8D-1 of this code, who unlawfully attempts to commit a violent injury to a child or unlawfully commits an act that places a child in reasonable apprehension of immediately receiving a violent injury is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years and fined not exceeding $500, or both fined and imprisoned.

(c) Battery. — Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature to the person of another or unlawfully and intentionally causes physical harm to another person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than 12 months or fined not more than $500, or both fined and confined.

(2) Any “person in a position of trust in relation to a child”, as defined by §61-8D-1 of this code, who unlawfully and intentionally makes physical contact of an insulting or provoking nature to a child or unlawfully and intentionally causes physical harm to a child is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years.

(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to the conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian or the defendant’s child or ward at the time of the offense or convicted of a violation of §61-2-28 of this code or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or §61-2-28 of this code when the victim has a present or past relationship, upon conviction, is subject to the penalties set forth in §61-2-28 of this code for a second, third or subsequent criminal act of domestic violence offense, as appropriate.

article 6. child abuse.

§61-8D-5a. Verbal abuse of noncommunicative child; penalties.

(a) Any person, 18 years of age or older, who has supervisory responsibility over a noncommunicative minor child, who repeatedly engages in verbal conduct toward the child in an insulting, demeaning or threatening manner, is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not less that than $500 nor more that than $2,500 or confined in jail not more than six months imprisoned in a state correctional facility not less than one nor more than five years, or both fined and confined imprisoned.

(b) As used in section (a) of this section:

(1) “Noncommunicative child” means a child who, due to physical or developmental disabilities is unable to communicate verbally, in writing, or through a recognized sign language “Child” means any person under 18 years of age not otherwise emancipated by law.

(2) “Repeatedly” means on two or more occasions;

(3) “Supervisory responsibility” means any situation where an adult has direct supervisory decision-making, oversight, instructive, academic, evaluative, or advisory responsibilities regarding the child. Supervisory responsibility can occur in a residence, in or out of a school setting, institutional setting, and in curricular, co-curricular, or extra-curricular settings.

§61-8D-11. Failure to report; penalties.

Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a felony and shall be imprisoned in a state correctional facility not less than one nor more than five years and fined not exceeding $500, or both fined and imprisoned.

NOTE: The purpose of this bill is to create greater penalties for adults in a position of trust who assault, batter, or verbally abuse a child or fail to report abuse as a mandatory reporter.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.