WEST virginia legislature

2020 regular session

Introduced

Senate Bill 169

By Senators Rucker and Cline

[Introduced January 9, 2020; referred
to the Committee on the Judiciary]

A BILL to amend and reenact §61-2-9a of the Code of West Virginia, 1931, as amended, relating generally to stalking and harassment; creating the offense of harassment with the intent to cause another to physically injure himself or herself or to take his or her own life; creating the offense of continuing to harass another knowing, or having reason to know, that such harassment is likely to cause another to physically injure himself or herself or take his or her own life due, in whole or part, to the harassment; removing the time limit within which a second or subsequent violation constitutes a felony; and creating criminal penalties.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-9a. Stalking; harassment; penalties; definitions.

(a) Any person who repeatedly follows another knowing or having reason to know that the conduct causes the person followed to reasonably fear for his or her safety or suffer significant emotional distress, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than $1,000, or both.

(b) Any person who repeatedly harasses or repeatedly makes credible threats against another is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than $1,000, or both.

(c) Notwithstanding any provision of this code to the contrary, any person who violates the provisions of subsection (a) or (b) of this section in violation of an order entered by a circuit court, magistrate court or family court judge, in effect and entered pursuant to §48-5-501, et seq., §48-5-601, et seq., or §48-27-403 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county jail for not less than 90 days nor more than one year or fined not less than $2,000 nor more than $5,000, or both.

(d) A second or subsequent conviction for a violation of subsection (a), (b), or (c) of this section occurring within five years of a prior conviction is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than $3,000 nor more than $10,000, or both.

(e) Notwithstanding any provision of this code to the contrary, any person against whom a protective order for injunctive relief is in effect pursuant to the provisions of §48-27-501 of this code who has been served with a copy of said order or §48-5-608 of this code who is convicted of a violation of the provisions of this section shall be guilty of a felony and, punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than $3,000 nor more than $10,000, or both.

(f) Notwithstanding any provisions of subsection (a) or (b) of this section, any person who harasses another with the intent to cause the person to physically injure himself or herself or to take his or her own life or who continues to harass another knowing or having reason to know that the person is likely to physically injure himself or herself or to take his or her own life based, in whole or in part, on such harassment is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for a determinate sentence of not less than two years nor more than 10 years.

(f) (g) For the purposes of this section:

(1) “Bodily injury” means substantial physical pain, illness or any impairment of physical condition;

(2) “Credible threat” means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat could be carried out;

(3) “Harasses” means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress;

(4) “Immediate family” means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household; and

(5) “Repeatedly” means on two or more occasions.

(g) (h) Nothing in this section shall be construed to prevent lawful assembly and petition for the lawful redress of grievances, including, but not limited to: Any labor or employment relations issue; demonstration at the seat of federal, state, county or municipal government; activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.

(h) (i) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended is to have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.

(i) (j) Upon conviction of a violation of subsection (a), (b), or (c) of this section, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed 10 years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.

(j)(k) It is a condition of bond for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical, with the alleged victim.

(k)(l) Nothing in this section may be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring as an alternative sentence.

(l)(m) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor, licensed domestic violence programs and rape crisis centers which meet the standards of the West Virginia Foundation for Rape Information and Services, is authorized to promulgate legislative rules and emergency rules pursuant to §29A-3-1 et seq. of this code, establishing appropriate standards for the enforcement of this section by state, county, and municipal law-enforcement officers and agencies.

NOTE: The purpose of this bill is to create a felony of harassing another with intent to have the person do injury to self or take his or her own life, or of continuing to harass someone with knowledge that the person may injure himself or herself or take his or her own life.

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