COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 294
(By Senators Laird, Tomblin (Mr. President), Jenkins, Green, White
and Kessler)
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[Originating in the Committee on the Judiciary;
reported March 3, 2009.]
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A BILL to amend and reenact §61-2-29 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
three new sections, designated §61-2-29a, §61-2-29b and
§61-2-29c, all relating to protecting incapacitated persons by
providing criminal penalties for the offense of abuse or
neglect of incapacitated adults which result in injury or
death; providing definitions; and creating the offense of
sexual abuse by a caregiver, guardian or custodian.
Be it enacted by the Legislature of West Virginia:
That §61-2-29 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §61-2-29a, §61-2-29b and
§61-2-29c, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions;
penalties.
(a) The following words, when used in this section and sections
twenty -nine-a, twenty-nine-b and twenty nine-c of this article,
have the meaning ascribed, unless the context clearly indicates
otherwise:
(1) "Abuse" means the infliction or threat to inflict physical
pain or bodily injury on an incapacitated adult;
(2)"Bodily injury" means substantial physical pain, illness or
any impairment of physical condition;
(3)"Caregiver" means a person over the age of eighteen years
who has or shares actual physical possession or care of an
incapacitated adult on a full-time or temporary basis regardless of
whether such person has been designated as a guardian of such adult
by any contract, agreement or legal proceeding. Caregiver includes
health care providers, family members and any person who otherwise
voluntarily accepts a supervisory role towards an incapacitated
adult;
(4)"Custodian" means a person over the age of eighteen years
who has or shares actual physical possession of care and custody on
a full-time or temporary basis regardless of whether the person has
been granted custody by any contract, agreement or legal proceeding;
(5) "Guardian" means a person over the age of eighteen years
who has care and custody of an incapacitated adult as the result of
any contract, agreement or legal proceeding;
(6)"Incapacitated adult" means any person who by reason of
advanced age, physical, mental or other infirmity is unable to
physically carry on the daily activities of life necessary to
sustaining life and reasonable health;
(7)"Neglect" means the unreasonable failure by a caregiver
towards an incapacitated adult to exercise a minimum degree of care
to ensure said incapacitated adult's physical safety or health;
(8) "Serious bodily injury" means bodily injury which creates
a substantial risk of death, causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily injury; and
(9) "Sexual exploitation" means an act whereby a caregiver,
guardian or custodian to an incapacitated adult, whether for
financial gain or not, persuades, induces, entices or coerces the
incapacitated adult to engage in sexual intercourse or sexual
intrusion as these terms are defined in section one, article eight-b
of this chapter.
(b) A caregiver, guardian or custodian who neglects an
incapacitated adult or who knowingly permits another person to
neglect an incapacitated adult is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than
one year, or both fined and confined.
(c) A caregiver, guardian or custodian of an incapacitated
adult who abuses or neglects an incapacitated adult and causes the
incapacitated adult bodily injury is guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than
$1,000 and imprisoned in a state correctional facility not less than
one year nor more than three years.
(d) A caregiver, guardian or custodian of an incapacitated
adult who abuses or neglects an incapacitated adult and causes the
incapacitated adult serious bodily injury is guilty of a felony and,
upon conviction thereof, shall be fined not less than $1,000 nor
more than $5,000 and imprisoned in a state correctional facility not
less than two years nor more than fifteen years.
(e) Nothing in this section shall be construed to mean an adult
is abused or neglected for the sole reason that his or her
independent decision is to rely upon treatment by spiritual means in
accordance with the tenets and practices of a recognized church or
religious denomination or organization in lieu of medical treatment.
§61-2-29a. Death of an incapacitated adult or elderly person by a
caregiver, guardian or custodian.
(a) A caregiver, guardian or custodian who neglects and causes
the death of an incapacitated adult under his or her care, custody or control is guilty of a felony.
(b) A caregiver, guardian or custodian of an incapacitated
adult who causes the death of an incapacitated adult under his or
her care, custody or control by knowingly allowing any other person
to neglect the incapacitated adult is guilty of a felony.
(c) A caregiver, guardian or custodian of an incapacitated
adult who willfully inflicts upon an incapacitated adult under his
or her care, custody or control bodily injury by any means other
than accidental thereby causing the death of the incapacitated adult
is guilty of a felony.
(d) A caregiver, guardian or custodian who knowingly allows any
other person to willfully inflict upon an incapacitated adult under
the care, custody or control of the caregiver, guardian or custodian
bodily injury which thereby causes the death of the incapacitated
adult is guilty of a felony.
(e) A person convicted of a felony described in subsection
(a),(b),(c) or (d) of this section shall be punished by a definite
term of imprisonment in a state correctional facility which is not
less than ten years nor more than forty years. A person imprisoned
pursuant to the provisions of this section is not eligible for
parole prior to having served a minimum of ten years of his or her
sentence or the minimum period required by the provisions of section
thirteen, article twelve, chapter sixty-two of this code, whichever
is greater.
(f) The provisions of this section do not apply to any
caregiver, guardian, custodian or health care provider who, without
malice, fails or refuses, or allows another person to, without
malice, fail or refuse, to supply an incapacitated adult with
necessary medical care when the medical care conflicts with the
tenets and practices of a recognized religious denomination or order
of which the incapacitated adult is an adherent member or where the
failure or refusal is pursuant to a properly executed
do-not-resuscitate form.
§61-2-29b. Unlawful expenditure of funds of incapacitated adult;
misuse or misappropriation of funds of incapacitated
adult by deception, intimidation, coercion or
infliction of or threat of infliction of bodily
injury; penalties.
(a) A caregiver, guardian or custodian of an incapacitated
adult who willfully misappropriates or misuses the funds or assets
of an incapacitated adult for the person's personal use, advantage
or wrongful profit or to the advantage or wrongful profit of another
is guilty of a felony and, upon conviction thereof, shall be fined
not more than $5,000 and imprisoned in a state correctional facility
not less than two years nor more than ten years.
(b) A caregiver, guardian or custodian of an incapacitated
adult who by means of deception, intimidation, coercion, infliction of bodily injury or threats of the infliction of bodily injury
willfully misappropriates or misuses the funds or assets of an
incapacitated adult for the personal use, advantage or wrongful
profit or to the advantage or wrongful profit of another is guilty
of a felony and, upon conviction thereof, shall be fined not more
than $5,000 and imprisoned in a state correctional facility not less
than five years nor more than fifteen years.
§61-2-29c. Sexual abuse by a caregiver, guardian or custodian.
A caregiver, guardian or custodian of an incapacitated adult
who knowingly engages in the sexual exploitation of an incapacitated
adult under his or her care who, due to his or her incapacity, is
incapable of giving his or her consent 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 fifteen years.
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(NOTE: The purpose of this bill is to protect incapacitated
persons who, reliant upon the care of others, are extremely
vulnerable members of our society from abuse and neglect by
caregivers, guardians or custodians, by more clearly defining the
offense of abuse or neglect of incapacitated adults which result in
the injury or death of such persons.
§61-2-29 has been completed rewritten; therefore, underscores
and strike-throughs have been omitted.
§§61-2-29a, 29b and 29c are new; therefore, strike-throughs and
underscoring have been omitted.)