H. B. 4585
(By Delegates Susman, Mahan, Houston, Leach and Poling)
[Introduced February 16, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-5-13 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-8B-9 of said
code, all relating to sexual abuse by a juvenile between the
ages of twelve and fourteen; providing a criminal penalty for
violations; and, requiring treatment to address responsibility
for the act.
Be it enacted by the Legislature of West Virginia:
That §49-5-13 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-8B-9 be amended and
reenacted, all to read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the juvenile and the alternative dispositions possible. The court, upon its own motion, or upon request of counsel, may order a
psychological examination of the juvenile. The report of such
examination and other investigative and social reports shall not be
made available to the court until after the adjudicatory hearing.
Unless waived, copies of the report shall be provided to counsel
for the petitioner and counsel for the juvenile no later than
seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the relief
sought in the petition and shall, in electing from the following
alternatives, consider the best interests of the juvenile and the
welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or custodian
to a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the juvenile is in need of
extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court of
the county where the juvenile has his or her usual place of abode
or other person while leaving the juvenile in custody of his or her
parent or custodian; and (B) prescribe a program of treatment or
therapy or limit the juvenile's activities under terms which are
reasonable and within the child's ability to perform, including
participation in the litter control program established pursuant to section three, article fifteen-a, chapter twenty-two of this code
or other appropriate programs of community service;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the juvenile, that a juvenile is not
willing to reside in the custody of his parent or custodian or that
a parent or custodian cannot provide the necessary supervision and
care of the juvenile, the court may place the juvenile in temporary
foster care or temporarily commit the juvenile to the department or
a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
juvenile and why; and whether or not the department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. Whenever
the court transfers custody of a youth to the department, an
appropriate order of financial support by the parents or guardians
shall be entered in accordance with section five, article seven of
this chapter and guidelines promulgated by the Supreme Court of
Appeals;
(5) Upon a finding that the best interests of the juvenile or
the welfare of the public require it, and upon an adjudication of
delinquency pursuant to subdivision (1), section four, article one
of this chapter, the court may commit the juvenile to the custody
of the Director of the Division of Juvenile Services for placement
in a juvenile services facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements. Notwithstanding any provision of this code to the contrary, in the
event that the court determines that it is in the juvenile's best
interests or required by the public welfare to place the juvenile
in the custody of the Division of Juvenile Services, the court
shall provide the Division of Juvenile Services with access to all
relevant court orders and records involving the underlying offense
or offenses for which the juvenile was adjudicated delinquent,
including sentencing and presentencing reports and evaluations, and
provide the division with access to school records, psychological
reports and evaluations, medical reports and evaluations or any
other such records as may be in the court's possession as would
enable the Division of Juvenile Services to better assess and
determine the appropriate counseling, education and placement needs
for the juvenile offender. Commitments shall not exceed the
maximum term for which an adult could have been sentenced for the
same offense and any such maximum allowable sentence to be served
in a juvenile correctional facility may take into account any time
served by the juvenile in a detention center pending adjudication,
disposition or transfer. The order shall state that continuation
in the home is contrary to the best interests of the juvenile and
why; and whether or not the state department made a reasonable
effort to prevent the placement or that the emergency situation
made such efforts unreasonable or impossible; or
(6) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the juvenile to a mental health facility in accordance with the juvenile's treatment plan; the
director of the mental health facility may release a juvenile and
return him or her to the court for further disposition. The order
shall state that continuation in the home is contrary to the best
interests of the juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible.
(c) The disposition of the juvenile shall not be affected by
the fact that the juvenile demanded a trial by jury or made a plea
of denial. Any dispositional order is subject to appeal to the
Supreme Court of Appeals.
(d) Following disposition, the court shall inquire whether the
juvenile wishes to appeal and the response shall be transcribed; a
negative response shall not be construed as a waiver. The evidence
shall be transcribed as soon as practicable and made available to
the juvenile or his or her counsel, if the same is requested for
purposes of further proceedings. A judge may grant a stay of
execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a juvenile charged with delinquency under this chapter
is transferred to adult jurisdiction and there tried and convicted,
the court may make its disposition in accordance with this section
in lieu of sentencing such person as an adult.
(f) Notwithstanding any other provision of this code to the
contrary, if a juvenile is taken into custody for violation of the provisions of section nine, article eight-b, chapter sixty-one of
this code, and the court makes a finding that the juvenile did
violate the provisions of section nine, article eight-b, chapter
sixty-one, in addition to any other disposition in the case, the
court shall order a medical and psychological examination of the
juvenile within thirty days of the finding. The court shall review
the results of the examinations and based upon the recommendations
of the examining physician and psychologist, shall order the
juvenile to receive treatment and counseling for not less than two
years aimed at addressing the juvenile's responsibility for the
act.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree
when he or she subjects another person to sexual contact without
the latter's consent, when such the lack of consent is due to the
victim's incapacity to consent by reason of being less than sixteen
years old.
(b) In any prosecution under this section it is a defense
that:
(1) The defendant was less than sixteen twelve years old; or
(2) The defendant was less than four years one year older than
the victim.
(c) Any person who violates the provisions of this section
shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in
the county jail not more than ninety days, or
fined not more than five hundred dollars and confined in
the county
jail not more than ninety days.
NOTE: The purpose of this bill is to include a juvenile aged
twelve years or older within the offense of sexual abuse in the
third degree and to provide that the juvenile court may order
treatment of the juvenile found to have committed the offense for
not less than two years as a part of any disposition of the case.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.