WEST virginia legislature
2019 regular session
ENGROSSED
Committee Substitute
for
House Bill 2933
By Delegates Shott and Lovejoy
[Introduced February 8, 2019; Referred to the Committee on the Judiciary]
A BILL to amend and reenact §61-8D-3 of the Code of West Virginia, 1931, as amended, relating to modifying the criminal penalties imposed on a parent, guardian or custodian for child abuse resulting in injury and child abuse or neglect creating risk of injury.
Be it enacted by the Legislature of West Virginia:
ARTICLE 8D. CHILD ABUSE.
§61-8D-3. Child abuse resulting in injury; child abuse creating risk of injury; criminal penalties.
(a) If any a
parent, guardian or custodian shall abuse abuses a child and by such
the abuse cause such causes the child bodily injury as such
the term is defined in §61-8B-1 of this code, then such the
parent, guardian or custodian shall be 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 for not less than one two
nor more than five 10 years, or in the discretion of the court,
be confined in jail for not more than one year.
(b) If any a
parent, guardian or custodian shall abuse abuses a child and by such
the abuse cause said causes the child serious bodily
injury as such the term is defined in §61-8B-1 of this code, then
such the parent, guardian or custodian shall be is
guilty of a felony and, upon conviction thereof, shall be fined not less than
$1,000 nor more than $5,000 and committed to the custody of the Division of
Corrections and Rehabilitation not less than two five nor
more than ten 15 years.
(c) Any A
parent, guardian or custodian who abuses a child and by the abuse creates a
substantial risk of death or serious bodily injury, as serious bodily injury is
defined in §61-8B-1 of this code, to the child is guilty of a felony and, upon
conviction thereof, shall be fined not more than $3,000 or imprisoned in a
state correctional facility for not less than one two nor more
than five ten years, or both.
(d)(1) If a parent,
guardian or custodian who has not previously been convicted under this section,
section four of this article or a law of another state or the federal
government with the same essential elements abuses a child and by the abuse
creates a substantial risk of bodily injury, as bodily injury is defined in
section one, article eight-b of this chapter, to the child is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor
more than $1,000 or confined in jail not more than six months, or both.
(2) For a second offense
under this subsection or for a person with one prior conviction under this
section, section four of this article or a law of another state or the federal
government with the same essential elements, the parent, guardian or custodian
is guilty of a misdemeanor and, upon conviction thereof, shall be fined not
more than $1,500 and confined in jail not less than thirty days nor more than
one year, or both.
(3) For a third or
subsequent offense under this subsection or for a person with two or more prior
convictions under this section, section four of this article or a law of
another state or the federal government with the same essential elements, the
parent, guardian or custodian is guilty of a felony and, upon conviction
thereof, shall be fined not more than $3,000 and imprisoned in a state correctional
facility not less than one year nor more than three years, or both
(d) A person convicted of any offense under this section with any prior conviction under this section, §61-8D-4 of this code or a law of another state or the federal government with the same essential elements is subject to the following increased penalties:
(1) A person with one prior conviction shall be fined not more than $3,000 or imprisoned in a state correctional facility for not less than three nor more than 15 years, or both. Provided, however, That a person convicted of a crime under subsection (b) is subject to the higher penalty therein.
(2) A person with two or more prior convictions is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 and imprisoned in a state correctional facility not less than five years nor more than 15 years, or both.
(e) (d) Any person convicted of a misdemeanor
an offense under this section:
(1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;
(2) Shall not be Is
not required to register pursuant to §15-13-1 et seq. of this code;
and
(3) Shall May
not, solely by virtue of the conviction, have their custody, visitation or
parental rights automatically restricted.
(f) (e) Nothing in This section shall
does not preclude a parent, guardian or custodian from providing
reasonable discipline to a child.
§61-8D-4. Child neglect resulting in injury; child neglect creating risk of injury; criminal penalties.
(a) If a parent, guardian or custodian neglects a child and by such neglect causes the child bodily injury, as bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 dollars or imprisoned in a state correctional facility for not less than one nor more than three years, or in the discretion of the court, be confined in jail for not more than one year, or both.
(b) If a parent, guardian or custodian neglects a child and by such neglect cause the child serious bodily injury, as serious bodily injury is defined in section one, article eight-b of this chapter, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $300 nor more than $3,000 dollars or imprisoned in a state correctional facility for not less than one nor more than ten years, or both.
(c) If a parent, guardian or custodian grossly
neglects a child and by that gross neglect creates a substantial risk of
death or serious bodily injury, as serious bodily injury is defined in section
one, article eight-b of this chapter, of the child then the parent, guardian or
custodian is guilty of a felony and, upon conviction thereof, shall be fined
not less than $1,000 nor more than $3,000 dollars or imprisoned in a state
correctional facility for not less than one nor more than five years, or both. shall be fined not less than $100 nor more than $1,000
or confined in jail not more than two years, or both.
(d)(1) If a parent, guardian or custodian who has not been
previously convicted under this section, section three of this article or a law
of another state or the federal government with the same essential elements
neglects a child and by that neglect creates a substantial risk of bodily
injury, as defined in section one, article eight-b of this chapter, to the
child, then the parent, guardian or custodian, is guilty of a misdemeanor and,
upon conviction thereof, for a first offense, shall be fined not less than $100
nor more than $1,000 or confined in jail not more than six months, or both
fined and confined.
(2) For a second offense under this subsection or for a
person with one prior conviction under this section, section three of this
article or a law of another state or the federal government with the same
essential elements, the parent, guardian or custodian is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than $1,000
and confined in jail not less than thirty days nor more than one year, or both.
(3) For a third or subsequent offense under this subsection
or for a person with two or more prior convictions under this section, section
three of this article or a law of another state or the federal government with
the same essential elements, the parent, guardian or custodian is guilty of a
felony and, upon conviction thereof, shall be fined not more than $2,000 and
imprisoned in a state correctional facility not less than one year nor more
than three years, or both fined and imprisoned.
(d) A person convicted of any offense under this section with any prior conviction is subject to the following increased penalties. A prior conviction includes any offense under this section, §61-8D-3 of this code or a law of another state or the federal government with the same essential elements:
(1) A person with one prior conviction shall be fined not more than $3,000 or imprisoned in a state correctional facility for not less than three nor more than 15 years, or both.
(2) A person with two or more prior convictions is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 and imprisoned in a state correctional facility not less than five years nor more than 15 years, or both.
(e) The provisions of this section shall not apply if the neglect by the parent, guardian or custodian is due primarily to a lack of financial means on the part of such parent, guardian or custodian.
(f) Any person convicted of a misdemeanor offense under this section:
(1) May be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined by Department of Health and Human Resources, Bureau for Children and Families through its services assessment evaluation, which shall be submitted to the court of conviction upon written request;
(2) Shall not be required to register pursuant to the requirements of article thirteen, chapter fifteen of this code; and
(3) Shall not, solely by virtue of the conviction, have their custody, visitation or parental rights automatically restricted.
NOTE: The purpose of this bill is to modify the criminal penalties imposed on a parent, guardian or custodian for child abuse resulting in injury and child abuse or neglect creating risk of injury.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.