ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2817
(By Delegates Fleischauer, Amores, Laird,
Caputo, Capito, Osborne and Mahan)
[Passed March 4, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact sections one, two, three, four, five,
six, nine, ten, ten-a, twelve and fourteen, article two-a,
chapter forty-eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
seven; to amend and reenact sections two, three, four and ten,
article two-c of said chapter; to further amend said article
by adding thereto eleven new sections, designated sections
four-a, four-b, ten-a, thirteen-a, thirteen-b, thirteen-c,
sixteen, seventeen, eighteen, nineteen and twenty, all
relating generally to domestic or family violence and its
treatment and prevention; setting forth legislative findings
and purposes; defining certain terms; establishing the venue
of proceedings; clarifying provisions relating to full faith
and credit; requiring verified petition; authorizing petition
to be filed by person who reported or was a witness to domestic or family violence; issuance of protective order;
describing terms that may be included in a protective order;
prescribing the length of time a protective order may remain
in effect; amendment of a protective order; prohibition
against mutual protective orders; safety of the child as a
factor in determining visitation; prescribing the conditions
for visitation in cases involving domestic or family violence;
law enforcement response to domestic or family violence;
filing of orders with law-enforcement agency; civil contempt
alleging violation of an order; registration of protective
order; conditions under which arrest is made; defining certain
terms used in domestic violence act; establishing the family
protection services board; prescribing the duties of the
family protection services board; establishing local councils
on domestic or family violence; providing for a state public
health plan for reducing domestic or family violence; referral
of victims by law enforcement-officers to available shelters;
notice of victims' rights and remedies and services available;
publishing of model standards, procedure and curricula
concerning domestic or family violence; regulating
intervention programs for perpetrators of domestic or family
violence; licensing providers of intervention programs for
perpetrators of domestic or family violence; providing for training and continuing education in matters involving
domestic or family violence for certain state employees, law- enforcement officers, judicial officers and court personnel,
and school personnel who are required to report child abuse
and neglect; development of curricula for public education.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six, nine, ten,
ten-a, twelve and fourteen, article two-a, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section seven;
that sections two, three, four and ten, article two-c of said
chapter be amended and reenacted; and that said article be further
amended by adding thereto eleven new sections, designated sections
four-a, four-b, ten-a, thirteen-a, thirteen-b, thirteen-c, sixteen,
seventeen, eighteen, nineteen and twenty, all to read as follows:
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY
VIOLENCE.
§48-2A-1. Findings and purposes.
(a) The Legislature of this state finds that:
(1) No one should be a victim of domestic or family violence.
All people have a right to be safe in their homes and in their
families;
(2) Children are often physically assaulted or witness
violence against one of their parents or other family or household
members, violence which too often ultimately results in death.
These children may suffer deep and lasting emotional harm from
victimization and from exposure to domestic or family violence;
(3) Domestic or family violence is a major health and law- enforcement problem in this state with enormous costs to the state
in both dollars and human lives. It affects people of all racial
and ethnic backgrounds and all socioeconomic classes; and
(4) Domestic or family violence can be deterred, prevented or
reduced by legal intervention that treats this problem with the
seriousness that it deserves.
(b) This article shall be liberally construed and applied to
promote the following purposes:
(1) To assure victims of domestic or family violence the
maximum protection from abuse that the law can provide;
(2) To create a speedy remedy to discourage violence against
family or household members with whom the perpetrator of domestic
or family violence has continuing contact;
(3) To expand the ability of law-enforcement officers to
assist victims, to enforce the domestic or family violence law more
effectively, and to prevent further abuse;
(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family and household
members as diligently as violence committed against strangers;
(5) To recognize that domestic or family violence constitutes
serious criminal behavior with potentially tragic results and that
it will no longer be excused or tolerated; and
(6) To recognize that the existence of a former or on-going
familial or other relationship should not serve to excuse, explain
or mitigate acts of domestic or family violence which are otherwise
punishable as crimes under the laws of this state.
§48-2A-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Family violence", "domestic violence", "domestic or
family violence" or "abuse" means the occurrence of one or more of
the following acts between family or household members, as that
term is defined in subsection (b) of this section:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(2) Placing another in reasonable apprehension of physical
harm;
(3) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual abuse as those
terms are defined in articles eight-b and eight-d, chapter sixty- one of this code; and
(5) Holding, confining, detaining or abducting another person
against that person's will.
(b) "Family or household member" means current or former
spouses, persons living as spouses, persons who formerly resided as
spouses, parents, children and stepchildren, current or former
sexual or intimate partners, persons who are dating or who have
dated, persons who are presently residing or cohabiting together or
in the past have resided or cohabited together or a person with
whom the victim has a child in common.
(c) "Program for victims of domestic or family violence" means
a licensed program for victims of domestic or family violence and
their children, which program provides advocacy, shelter, crisis
intervention, social services, treatment, counseling, education or
training.
(d) "Program of intervention for perpetrators" means a
licensed program, where available, or if no licensed program is
available, a program that:
(1) Accepts perpetrators of domestic or family violence into
educational intervention groups or counseling pursuant to a court
order; or
(2) Offers educational intervention groups to perpetrators of
domestic or family violence.
§48-2A-3. Jurisdiction; venue; effect of petitioner's leaving
residence; priority of petitions filed under this
article; who may file; full faith and credit;
process.
(a)
Jurisdiction. -- Circuit courts and magistrate courts, as
constituted under chapter fifty of this code, have concurrent
jurisdiction over proceedings under this article.
(b)
Venue. -- The action may be heard in the county in which
the domestic or family violence occurred, in the county in which
the respondent is living or in the county in which the petitioner
is living, either temporarily or permanently. If the parties are
married to each other, the action may also be brought in the county
in which an action for divorce between the parties may be brought
as provided by section eight, article two of this chapter.
(c)
Petitioner's rights. -- The petitioner's right to relief
under this article shall not be affected by his or her leaving a
residence or household to avoid further abuse.
(d)
Priority of petitions. -- Any petition filed under the
provisions of this article shall be given priority over any other
civil action before the court, except actions in which trial is in
progress, and shall be docketed immediately upon filing. Any appeal to the circuit court of a magistrate's judgment on a
petition for relief under this article shall be heard within ten
working days of the filing of the appeal.
(e)
Full faith and credit. -- Any temporary or final
protective order issued pursuant to this article shall be effective
throughout the state in every county. Any protective order issued
by any other state, territory or possession of the United States,
Puerto Rico, the District of Columbia or Indian tribe shall be
accorded full faith and credit and enforced as if it were an order
of this state whether or not such relief is available in this
state. A protective order from another jurisdiction is presumed to
be valid if the order appears authentic on its face and shall be
enforced in this state. If the validity of the order is contested,
the court or law enforcement to which the order is presented shall,
prior to the final hearing, determine the existence, validity and
terms of such order in the issuing jurisdiction. A protective order
from another jurisdiction may be enforced even if the order is not
entered into the state law-enforcement information system described
by section twelve of this article.
(f)
Service by publication. -- A protective order may be
served on the respondent by means of a Class I legal advertisement
published notice, with the publication area being the county in
which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of
this code if: (i) The petitioner files an affidavit with the court
stating that an attempt at personal service pursuant to rule four
of the West Virginia rules of civil procedure has been unsuccessful
or evidence is adduced at the hearing for the protective order that
the respondent has left the state of West Virginia; and (ii) a copy
of the order is mailed by certified or registered mail to the
respondent at the respondent's last known residence and returned
undelivered.
§48-2A-4. Commencement of proceeding; forms; counterclaim;
accompanying persons.
(a) No person shall be refused the right to file a petition
under the provisions of this article. No person shall be denied
relief under the provisions of this article if she or he presents
facts sufficient under the provisions of this article for the
relief sought. The petition shall be verified.
A petition for a protective order may be filed by:
(1) A person seeking relief under this article for herself or
himself;
(2) An adult family or household member for the protection of
the victim or for any family or household member who is a minor
child or physically or mentally incapacitated to the extent that he
or she cannot file on his or her own behalf, or
(3) A person who reported or was a witness to domestic or
family violence and who, as a result, has been abused, threatened,
harassed or who has been the subject of other actions intended to
intimidate the person.
(b) The West Virginia supreme court of appeals shall prescribe
forms which are necessary and convenient for proceedings pursuant
to this article, and the court shall distribute such forms to the
clerk of the circuit court and magistrate court of each county
within the state.
(c) The respondent named in any petition alleging domestic or
family violence may file a counterclaim or raise any affirmative
defenses.
(d) No person accompanying a person who is seeking to file a
petition under the provisions of this article is precluded from
being present if his or her presence is desired by the person
seeking a petition unless the person's behavior is disruptive to
the proceeding.
(e) No fees shall be charged for the filing of petitions or
other papers, service of petitions or orders, copies of orders, or
other costs for services provided by, or associated with, any
proceedings under this article until the matter is brought before
the court for final resolution.
§48-2A-5. Temporary orders of court; hearings; persons present.
(a) Upon filing of a verified petition under this article, the
court may enter such temporary orders as it may deem necessary to
protect the petitioner or minor children from domestic or family
violence and, upon good cause shown, may do so ex parte without the
necessity of bond being given by the petitioner. Clear and
convincing evidence of immediate and present danger of abuse to the
petitioner or minor children shall constitute good cause for the
issuance of an ex parte order pursuant to this section. If the
respondent is not present at the proceeding, the petitioner or the
petitioner's legal representative shall certify to the court, in
writing, the efforts which have been made to give notice to the
respondent or just cause why notice should not be required. Copies
of medical reports or records may be admitted into evidence to the
same extent as though the original thereof. The custodian of such
records shall not be required to be present to authenticate such
records for any proceeding held pursuant to this subsection.
Following such proceeding, the court shall order a copy of the
petition to be served immediately upon the respondent, together
with a copy of any temporary order issued pursuant to the
proceedings, notice setting forth the time and place of the full
hearing and a statement of the right of the respondent to be
present and to be represented by counsel. Copies of any order made under the provisions of this section shall also be issued to the
petitioner and any law-enforcement agency having jurisdiction to
enforce the order, including the city police, the county sheriff's
office and local office of the state police within twenty-four
hours of the entry of the order. A temporary protective order
shall remain effective until such time as a hearing is held and
shall be in full force and effect in every county in this state.
(b) Within five days following the issuance of the court's
temporary order, a full hearing shall be held at which the
petitioner must prove the allegation of domestic or family
violence, or that he or she reported or witnessed domestic violence
against another and has, as a result, been abused, threatened,
harassed or has been the subject of other actions to attempt to
intimidate him or her, by a preponderance of the evidence, or such
petition shall be dismissed. If the respondent has not been served
with notice of the temporary order, the hearing may be continued in
order to permit service to be effected. The failure to obtain
service upon the respondent does not constitute a basis for
dismissing the petition. Copies of medical reports may be admitted
into evidence to the same extent as though the original thereof,
upon proper authentication, by the custodian of such records.
(c) No person requested by a party to be present during a
hearing held under the provisions of this article shall be precluded from being present unless such person is to be a witness
in the proceeding and a motion for sequestration has been made and
such motion has been granted. A person found by the court to be
disruptive may be precluded from being present.
(d) If a hearing is continued, the court may make or extend
such temporary orders as it deems necessary.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing, if the petitioner has
proven the allegations of domestic or family violence, or that he
or she reported or witnessed domestic or family violence against
another and has, as a result, been abused, threatened, harassed or
has been the subject of other actions to attempt to intimidate him
or her, by a preponderance of the evidence, the court shall issue
a protective order directing the respondent to refrain from
abusing, harassing, stalking, threatening or otherwise
intimidating the petitioner, the person who reported or witnessed
family or domestic violence or the minor children, or engaging in
other conduct that would place the petitioner, the person who
reported or witnessed family or domestic violence or the minor
children in reasonable fear of bodily injury. Where the respondent
is present at the hearing and elects not to contest the allegations
of domestic or family violence or does not contest the relief
sought, the petitioner is not required to adduce evidence and prove the allegations of domestic or family violence and the court may
directly address the issues of the relief requested.
(b) Where the petitioner is the victim of domestic or family
violence, the terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or
household jointly resided in at the time the abuse occurred;
(2) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children named in the order;
(3) Establishing terms of temporary visitation with regard to
the minor children named in the order including, but not limited
to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household or family members for the purpose of violating the
protective order;
(7) Ordering the respondent to participate in an intervention program for perpetrators;
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner;
(9) Providing for either party to obtain personal property or
other items from a location, including granting temporary
possession of motor vehicles owned by either or both of the
parties, and providing for the safety of the parties while this
occurs, including ordering a law-enforcement officer to accompany
one or both of the parties;
(10) Prohibiting the respondent from using or possessing a
firearm or other weapon, notwithstanding the fact that the
respondent has a valid license to possess such firearm or other
weapon;
(11) Informing the respondent that possession of a firearm
while subject to a protective order is a violation of federal law;
(12) Ordering the respondent to reimburse the petitioner or
other person for any expenses incurred as a result of the domestic
or family violence, including, but not limited to, medical
expenses, transportation and shelter; and
(13) Ordering the petitioner and respondent to refrain from
transferring, conveying, alienating, encumbering, or otherwise
dealing with property which could otherwise be subject to the jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property.
(c) Where the petitioner or other person to be protected
reported or was a witness to the family or domestic violence, the
terms of a protective order may include:
(1) Ordering the respondent to refrain from abusing,
contacting, telephoning, communicating, harassing, verbally abusing
or otherwise intimidating the petitioner or other person to be
protected;
(2) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or other
person to be protected, for the purpose of violating the protective
order.
(d) Except as otherwise provided by subsection (d), section
three-a of this article, a final protective order issued by a
magistrate, family law master or circuit judge pursuant to this
article or subdivision (13), subsection (a), article two of this
chapter, is effective for either ninety days or one hundred eighty
days, in the discretion of the court. If the court enters an
order for a period of ninety days, upon receipt of a written
request from the petitioner prior to the expiration of the ninety-
day period, the court shall extend its order for an additional ninety-day period.
(e) To be effective, a written request to extend an order
from ninety days to one hundred eighty days must be submitted to
the court prior to the expiration of the original ninety-day
period. A notice of the extension shall be sent by the clerk of
the court to the respondent by first class mail, addressed to the
last known address of the respondent as indicated by the court's
case filings. The extension of time is effective upon mailing of
the notice.
(f) The court may amend the terms of a protective order at any
time upon subsequent petition filed by either party. The
protective order shall be in full force and effect in every county
of this state and shall so state.
(g) No order under this article shall in any manner affect
title to any real property.
(h) Certified copies of any order or extension notice made
under the provisions of this section shall be issued to the
petitioner, the respondent and any law-enforcement agency having
jurisdiction to enforce the order, including the city police, the
county sheriff's office or local office of the West Virginia state
police within twenty-four hours of the entry of the order.
(i) Mutual protective orders are prohibited unless both
parties have filed a petition under section four of this article and have proven the allegations of domestic or family violence by
a preponderance of the evidence. This shall not prevent other
persons, including the respondent, from filing a separate petition.
The court may consolidate two or more petitions if he or she
determines that consolidation will further the interests of justice
and judicial economy. The court shall enter a separate order for
each petition filed.
(j) Any protective order issued pursuant to this article
shall contain on its face the following statement, printed in bold
faced type or in capital letters:
"
VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A
REGIONAL OR COUNTY JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS
MUCH AS TWO THOUSAND DOLLARS"
§48-2A-7. Conditions of visitation in cases involving domestic or
family violence.
(a) A court may award visitation of a child by a parent who
has committed domestic or family violence only if the court finds
that adequate provision for the safety of the child and the
petitioner can be made.
(b) In a visitation order, a court may:
(1) Order an exchange of a child to occur in a protected
setting;
(2) Order that supervision be provided by another person or agency;
(3) Order the perpetrator of domestic or family violence to
attend and complete, to the satisfaction of the court, a program of
intervention for perpetrators as a condition of the visitation;
(4) Order the perpetrator of domestic or family violence to
abstain from possession or consumption of alcohol or controlled
substances during the visitation and for the twelve hours that
precede the visitation;
(5) Order the perpetrator of domestic or family violence to
pay the costs of supervised visitation, if any;
(6) Prohibit overnight visitation;
(7) Impose any other condition that the court considers
necessary to provide for the safety of the child, the petitioner or
any other family or household member.
(c) Regardless of whether visitation is allowed, the court may
order that the address of the child and the petitioner be kept
confidential.
(d) If a court allows a family or household member to
supervise visitation, the court shall establish conditions to be
followed during visitation.
§48-2A-9. Law enforcement response to domestic or family violence.
(a) Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
shall refuse to serve any pleadings or orders entered pursuant to
this article.
(b) Any law-enforcement officer responding to an alleged
incident of domestic or family violence shall inform the parties
thereto of the availability of the possible remedies provided by
this article and the possible applicability of the criminal laws of
this state. Any law-enforcement officer investigating an alleged
incident of domestic or family violence shall advise the victim of
such violence of the availability of the family protection shelter
to which such person may be admitted.
(c) Any law-enforcement officer responding to an alleged
incident of domestic or family violence shall, in addition to
providing the information required in subsection (a) of this
section, provide transportation for or facilitate transportation of
the victim or victims, upon the request of such victim or victims,
to a shelter or the appropriate court where there is reasonable
cause to believe that such victim or victims have suffered or are
likely to suffer physical injury.
(d) Each law-enforcement agency shall maintain records on all
incidents of domestic or family violence reported to it and shall
monthly make and deliver to the West Virginia state police a report on a form prescribed by the state police, listing all such
incidents of domestic or family violence. Such reports shall
include:
(1) The age and sex of the victim and the perpetrator of
domestic or family violence;
(2) The relationship between the parties;
(3) The type and extent of abuse;
(4) The number and type of weapons involved;
(5) Whether the law-enforcement agency responded to the
complaint and if so, the time involved, the action taken and the
time lapse between the agency's action and the victim's request for
assistance;
(6) Whether any prior reports have been made, received or
filed regarding domestic or family violence on any prior occasion
and if so, the number of such prior reports; and
(7) The effective dates and terms of any protective order
issued prior to or following the incident to protect the victim:
Provided, That no information which will permit the identification
of the parties involved in any incident of domestic or family
violence shall be included in such report.
(e) The West Virginia state police shall tabulate and analyze
any statistical data derived from the reports made by law- enforcement agencies pursuant to this section and publish a statistical compilation in its annual uniform crime report, as
provided for in section twenty-four, article two, chapter fifteen
of this code. The statistical compilation shall include, but is
not limited to, the following:
(1) The number of domestic or family violence complaints
received;
(2) The number of complaints investigated;
(3) The number of complaints received from alleged victims of
each sex;
(4) The average time lapse in responding to such complaints;
(5) The number of complaints received from alleged victims who
have filed such complaints on prior occasions;
(6) The number of aggravated assaults and homicides resulting
from such repeat incidents;
(7) The type of police action taken in disposition of the
cases; and
(8) The number of alleged violations of protective orders.
(f) As used in this section, the terms "abuse", "family
violence" and "family or household members" shall have the meanings
given them in section two of this article; and the term "law- enforcement agency" shall include the West Virginia department of
health and human resources in those instances of child abuse
reported to the department which are not otherwise reported to any other law-enforcement agency.
(g) The governor's committee on crime, delinquency and
correction shall develop and promulgate rules for state, county and
municipal law-enforcement officers and law-enforcement agencies
with regard to domestic violence. The notice of the public hearing
on the rules shall be published before the first day of July, one
thousand nine hundred ninety-one. Prior to the publication of the
proposed rules, the governor's committee on crime, delinquency and
correction shall convene a meeting or meetings of an advisory
committee to assist in the development of the rules. The advisory
committee shall be composed of persons invited by the committee to
represent state, county and local law-enforcement agencies and
officers, to represent magistrates and court officials, to
represent victims of domestic or family violence, to represent
shelters receiving funding pursuant to article two-c of this
chapter and to represent other persons or organizations who, in the
discretion of the committee, have an interest in the rules. The
rules and the revisions thereof as provided in this section shall
be promulgated as legislative rules in accordance with chapter
twenty-nine-a of this code. Following the promulgation of said
rules, the committee shall meet at least annually to review the
rules and to propose revisions as a result of changes in law or
policy.
(h) Nothing in this section shall be construed to authorize
the inclusion of information contained in a report of an incident
of abuse in any local, state, interstate, national or international
systems of criminal identification pursuant to section twenty-four,
article two, chapter fifteen of this code:
Provided, That nothing
in this section shall prohibit the West Virginia state police from
processing information through its criminal identification bureau
with respect to any actual charge or conviction of a crime.
(i) All law-enforcement officers shall receive training
relating to response to calls involving domestic or family violence
by the first day of October, one thousand nine hundred ninety- three.
(j) Two years after the entry of a final protective order, the
circuit court, may, upon motion, order that the protective order
and references to the order be purged from the file maintained by
any law-enforcement agency and may further order that the file
maintained by the court be sealed and not opened except upon order
of the court when such is in the interest of justice.
§48-2A-10. Filing of orders with law-enforcement agency.
Upon entry of an order pursuant to section five or six of this
article, or an order entered pursuant to section thirteen, article
two of this chapter granting relief provided for by this article,
a copy of the order shall, no later than the close of the next business day, be transmitted by the court or the clerk of the court
to a local office of the city police, the county sheriff and the
West Virginia state police, where it shall be placed in a
confidential file, with access provided only to the law-enforcement
agency and the respondent named on the order. A sworn affidavit
may be executed by a party who has been awarded exclusive
possession of the residence or household, pursuant to an order
entered under subsection (b), section six of this article, and
shall be delivered to such law-enforcement agencies simultaneously
with any order, giving his or her consent for a law-enforcement
officer to enter the residence or household, without a warrant, to
enforce the protective order or temporary order. Orders shall be
promptly served upon the respondent. Failure to serve a protective
order does not stay the effect of a valid order if the respondent
has actual notice of the existence and contents of the order.
§48-2A-10a. Civil contempt; violation of protective orders; order
to show cause.
(a) Any party to a protective order or a legal guardian or
guardian ad litem may file a petition for civil contempt alleging
a violation of an order issued pursuant to the provisions of this
article. Such petition shall be filed in a court in the county in
which the violation occurred or the county in which the order was
issued.
(b) When a petition for an order to show cause is filed, a
hearing on the petition shall be held within five days from the
filing of the petition. Any order to show cause which is issued
shall be served upon the alleged violator.
(c) Upon a finding of contempt, the court may order the
violator to comply with specific provisions of the protective order
and post a bond as surety for faithful compliance with such order.
§48-2A-12. Registration of order.
(a) The West Virginia state police shall maintain a registry
in which it shall enter certified copies of orders entered by
courts from every county in this state pursuant to the provisions
of this article, or from other jurisdictions pursuant to their
laws:
Provided, That the provisions of this subsection are not
effective until a central automated record system is developed.
(b) A petitioner who obtains a protective order pursuant to
this article, or from another jurisdiction pursuant to its law, may
register that order in any county within this state where the
petitioner believes enforcement may be necessary.
(c) A protective order may be registered by the petitioner in
a county other than the issuing county by obtaining a copy of the
order of the issuing court, certified by the clerk of that court,
and presenting that certified order to the local office of the West
Virginia state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the
local office of the state police shall provide certified copies to
any law-enforcement agency within its jurisdiction, including the
city police and the county sheriff's office.
(e) Nothing in this section precludes the enforcement of an
order in a county other than the county or jurisdiction in which
the order was issued, if the petitioner has not registered the
order in the county in which an alleged violation of the order
occurs.
§48-2A-14. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the
contrary, if a person is alleged to have committed a violation of
the provisions of subsection (a) or (b), section twenty-eight,
article two, chapter sixty-one of this code against a family or
household member, in addition to any other authority to arrest
granted by this code, a law-enforcement officer has authority to
arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible
corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim
or a witness, an oral or written allegation of facts constituting
a violation of section twenty-eight, article two, chapter sixty-one
of this code; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds to
the allegations of one or more elements of the offense and may
include, but is not limited to, the following:
(1)
Condition of the alleged victim. -- One or more
contusions, scratches, cuts, abrasions, or swellings; missing hair;
torn clothing or clothing in disarray consistent with a struggle;
observable difficulty in breathing or breathlessness consistent
with the effects of choking or a body blow; observable difficulty
in movement consistent with the effects of a body blow or other
unlawful physical contact.
(2)
Condition of the accused. -- Physical injury or other
conditions similar to those set out for the condition of the victim
which are consistent with the alleged offense or alleged acts of
self-defense by the victim.
(3)
Condition of the scene. -- Damaged premises or
furnishings; disarray or misplaced objects consistent with the
effects of a struggle.
(4)
Other conditions. -- Statements by the accused admitting
one or more elements of the offense; threats made by the accused in
the presence of an officer; audible evidence of a disturbance heard by the dispatcher or other agent receiving the request for police
assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a)
of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the Magistrate
Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section
twenty-eight, article two, chapter sixty-one of this code is
authorized pursuant to this section, that fact constitutes prima
facie evidence that the accused constitutes a threat or danger to
the victim or other family or household members for the purpose of
setting conditions of bail pursuant to section seventeen-c, article
one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions
of this article or for a violation of an order issued pursuant to
subdivision (12), subsection (a), section thirteen, article two of
this chapter, the arresting officer:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of domestic or
family violence; and
(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for
the protection of the officer or other persons.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§48-2C-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Board" means the family protection services board created
pursuant to section three of this article;
(b) "Department" means the department of health and human
resources or any successor agency however so named;
(c) "Shelter" or "family protection shelter" means a licensed
domestic or family violence shelter created for the purpose of
receiving, on a temporary basis, persons who are victims of
domestic violence, abuse or rape as well as the children of such
victims;
(d) "Secretary" means the secretary of the department of
health and human resources; and
(e) "Family protection program" or "program" means a licensed
domestic or family violence program offered by a locally controlled
organization primarily for the purpose of providing services to
victims of domestic or family violence or abuse and their children.
§48-2C-3. Family protection services board; members; purposes.
(a) There is hereby created a family protection services board to consist of five persons. The governor, with the advice and
consent of the Senate, shall appoint three members of the board.
One such member shall be a director of a shelter. One member shall
be a member of a major trade association which represents shelters
across the state. The final gubernatorial appointee shall be a
member of the public. The other two members shall be the secretary
of the department of health and human resources, or his or her
designee, and the chair of the governor's committee on crime,
delinquency and correction, or his or her designee.
(b) The terms of the three members appointed by the governor
shall be staggered terms of three years. In the case of the
initial appointments, the director of the shelter shall serve a
one-year term, the representative of the trade association shall
serve a two-year term and the appointed member of the public shall
serve a three-year term.
(c) In the event that a member of the board ceases to be
qualified for appointment, then his or her appointment shall
terminate.
§48-2C-4. Duties of board.
It is the duty of the board to:
(a) Regulate its procedural practice;
(b) Receive and consider applications for the development of
shelters;
(c) Facilitate the formation and operation of shelters;
(d) Promulgate rules to implement the provisions of this
article and any applicable federal guidelines;
(e) Advise the secretary on matters of concern relative to his
or her responsibilities under this article;
(f) Study issues pertinent to family protection shelters,
programs for domestic violence victims, and report the results to
the governor and the Legislature;
(g) Conduct hearings as necessary under this article;
(h) Delegate to the secretary such powers and duties of the
board as the board may deem appropriate to delegate, including, but
not limited to, the authority to approve, disapprove, revoke or
suspend licenses;
(i) Deliver funds to shelters within forty-five days of the
approval of a proposal for such shelters;
(j) Establish a system of peer review which will ensure the
safety, well-being and health of the clients of all shelters
operating in the state;
(k) Evaluate annually each funded shelter to determine its
compliance with the goals and objectives set out in its original
application for funding or subsequent revisions;
(l) To award to shelters, for each fiscal year, ninety-five
percent of the total funds collected and paid over during the fiscal year to the special revenue account established pursuant to
section twenty-four, article one of this chapter and to expend,
during said period a sum not in excess of five percent of said
funds for cost of administering provisions of this article;
(m) Establish and enforce system of standards for annual
licensure for all shelters and programs in the state;
(n) Enforce standards; and
(o) Review its rules biannually.
§48-2C-4a. Establishment of local councils authorized.
(a) A local government, a county or a combination thereof may
establish an advisory council on domestic or family violence.
(b) The purpose of a local advisory council is to increase the
awareness and understanding of domestic or family violence and its
consequences and to reduce the incidence of domestic or family
violence within the locality by:
(1) Promoting effective strategies for identification of the
existence of domestic or family violence and intervention by public
and private agencies serving persons who are victims of domestic or
family violence;
(2) Providing for public education;
(3) Facilitating communication among public and private
agencies that provide programs to assist victims and programs of
intervention for perpetrators;
(4) Providing assistance to public and private agencies and
providers of services to develop statewide procedures and community
and staff education, including procedures to review fatalities; and
(5) Developing a comprehensive plan of data collection
concerning domestic or family violence in cooperation with courts,
prosecutors, law-enforcement officers, health care practitioners
and other local agencies, in a manner that protects the identity of
victims of domestic or family violence. Nothing contained in this
subdivision shall be construed to modify or diminish any existing
law relating to the confidentiality of records.
§48-2C-4b. State public health plan for reducing domestic or
family violence.
(a) The bureau for public health of the department of health
and human resources, in consultation with the family protection
services board, shall:
(1) Assess the impact of domestic or family violence on public
health; and
(2) Write a state public health plan for reducing the
incidence of domestic or family violence in this state.
(b) The state public health plan shall:
(1) Include, but not be limited to, public education,
including the use of the various communication media to set forth
the public health perspective on domestic or family violence;
(2) Be developed in consultation with public and private
agencies that provide programs for victims of domestic or family
violence, advocates for victims, organizations representing the
interests of shelters, and persons who have demonstrated expertise
and experience in providing health care to victims of domestic or
family violence and their children; and
(3) Be completed on or before the first day of January, two
thousand.
(c) The bureau for public health of the department of health
and human resources shall:
(1) Transmit a copy of the state public health plan to the
governor and the Legislature; and
(2) Review and update the state public health plan annually.
§48-2C-10. Referral to shelters by officers.
Where shelters are available, the law-enforcement officer or
other public authority investigating an alleged incident of
domestic or family violence shall advise the victim of the
availability of the family protection shelter to which that person
may be admitted.
§48-2C-10a. Notice of victims' rights, remedies and available
services; required information.
(a) The bureau for public health of the department of health
and human resources shall make available to health care facilities and practitioners a written form notice of the rights of victims
and the remedies and services available to victims of domestic or
family violence.
(b) A health care practitioner whose patient has injuries or
conditions consistent with domestic violence shall provide to the
patient, and every health care facility shall make available to all
patients, a written form notice of the rights of victims and the
remedies and services available to victims of domestic or family
violence.
§48-2C-13a. Standards, procedures and curricula.
(a) The bureau for public health of the department of health
and human resources shall publish model standards, including
specialized procedures and curricula, concerning domestic or family
violence for health care facilities, practitioners and personnel.
(b) The procedures and curricula shall be developed in
consultation with public and private agencies that provide programs
for victims of domestic or family violence, advocates for victims,
organizations representing the interests of shelters and personnel
who have demonstrated expertise and experience in providing health
care to victims of domestic or family violence and their children.
§48-2C-13b. Regulation of intervention programs for perpetrators;
required provisions; duties of providers.
(a) The family protection services board shall propose legislative rules governing the minimum level of responsibility,
service and accountability expected from providers of programs of
intervention for perpetrators of domestic and family violence.
These rules shall be proposed for promulgation in accordance with
the provisions of article three, chapter twenty-nine-a of this
code. These rules shall be developed in consultation with public
and private agencies that provide programs for victims of domestic
or family violence and programs of intervention for perpetrators,
with advocates for victims, with organizations that represent the
interests of shelters, and with persons who have demonstrated
expertise and experience in providing services to victims and
perpetrators of domestic and family violence and their children.
If a program of intervention for perpetrators receives funds from
the state or is licensed by the state, the board shall review the
program's compliance with the rules promulgated pursuant to this
subsection.
(b) The rules for programs for intervention for perpetrators
of domestic or family violence shall include:
(1) Criteria concerning a perpetrator's appropriateness for
the program;
(2) Systems for communication and evaluation among the
referring court, the public and private agencies that provide
programs for victims of domestic or family violence and the programs of intervention for perpetrators; and
(3) Required qualifications concerning education, training and
experience for providers of intervention programs.
(c) The standards shall be based upon and incorporate the
following principles:
(1) The focus of a program is to end the acts of violence and
ensure the safety of the victim and any children or other family or
household members;
(2) Domestic or family violence constitutes behavior for which
the perpetrator is accountable; and
(3) Although alcohol and substance abuse often exacerbate
domestic or family violence, it is a separate problem which
requires specialized intervention or treatment.
(d) Providers of perpetrator intervention programs:
(1) Shall require participants to sign the following releases:
(A) Allowing the provider to inform the victim and the
victim's advocates that the perpetrator is participating in a
batterers' intervention prevention program with the provider and to
provide information to the victim and the victim's advocates, if
necessary, for the victim's safety;
(B) Allowing prior and current treating agencies to provide
information about the perpetrator to the provider; and
(C) Allowing the provider, for good cause, to provide information about the perpetrator to relevant legal entities,
including courts, parole officers, probation officers and child
protective services;
(2) Shall report to the court, if the participation was court
ordered, and to the victim, if the victim requests and provides a
method of notification, any assault, failure to comply with program
requirements, failure to attend the program and threat of harm by
the perpetrator;
(3) Shall report to the victim, without the participant's
authorization, all threats of harm;
(4) May report to the victim, without the participant's
authorization, the participant's failure to attend.
§48-2C-13c. Licensing providers of intervention programs for
perpetrators.
(a) The board shall establish an application for licensure for
all providers of programs of intervention for perpetrators in
accordance with section thirteen-b of this article.
(b) Licenses may be renewed on an annual basis with all such
licenses having a term of one year commencing on the first day of
July and terminating on the thirtieth day of June on the next year.
(c) The board shall grant or deny any license within forty- five days of the receipt of the application.
(d) The license granted by the board shall be conspicuously displayed by the licensees.
(e) The board may grant a provisional license or grant a
waiver of licensure if the board deems such waiver or provisional
license necessary for the operation of a program. All such waivers
or provisional licenses shall be reviewed semiannually.
§48-2C-16. Continuing education for certain state employees.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the department of health and human resources shall
provide or require continuing education concerning domestic or
family violence for child protective services workers, adult
protective services workers, social services workers, family
support workers and workers in the child support enforcement
division.
(2) Funding for the continuing education provided or required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The courses or requirements shall be prepared and
presented in consultation with public and private agencies that
provide programs for victims of domestic or family violence or
programs of intervention for perpetrators, advocates for victims,
organizations representing the interests of shelters and the family protection services board.
§48-2C-17. Continuing education for law-enforcement officers
concerning domestic or family violence.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, as a part of the initial law-enforcement officer
training required before a person may be employed as a law-
enforcement officer pursuant to article twenty-nine, chapter thirty
of this code, all law-enforcement officers shall receive training
concerning domestic or family violence.
(2) Funding for the training required under subdivision (1) of
this section may not exceed the amounts allocated by the spending
unit for that purpose from existing appropriations. No provision
of this section may be construed to require the Legislature to make
any appropriation.
(b) The course of instruction and the objectives in learning
and performance for the education of law-enforcement officers
required pursuant to this section shall be developed and presented
in consultation with public and private providers of programs for
victims of domestic or family violence and programs of intervention
for perpetrators, persons who have demonstrated expertise in
training and education concerning domestic or family violence and
organizations representing the interests of shelters.
§48-2C-18. Judicial education on domestic or family violence.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, as a part of existing training for court personnel, the
supreme court of appeals shall develop and present courses of
continuing education concerning domestic or family violence for
magistrates assistants, and juvenile and adult probation officers.
(2) Funding for the continuing education required under
subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the supreme court of appeals from
existing appropriations. No provision of this section may be
construed to require the Legislature to make any appropriation.
(b) The course of instruction shall be prepared and may be
presented in consultation with public and private agencies that
provide programs for victims of domestic or family violence and
programs of intervention for perpetrators, advocates for victims,
persons who have demonstrated expertise in training and education
concerning domestic or family violence, organizations representing
the interests of shelters and the family protection services board.
§48-2C-19. Required curricula for public education system.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the state board of education shall select or develop:
(A) Curricula that are appropriate for various ages for
pupils concerning the dynamics of violence, prevention of violence,
including domestic or family violence; and
(B) Curricula for school counselors, health care personnel,
administrators and teachers concerning domestic or family violence.
(2) Funding for selecting or developing the curricula required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The curricula shall be selected or developed by the state
board of education in consultation with public and private agencies
that provide programs for conflict resolution, violence prevention,
victims of domestic or family violence and programs of intervention
for perpetrators of domestic or family violence, advocates for
victims, organizations representing the interests of shelters,
persons who have demonstrated expertise and experience in education
and domestic or family violence and the family protection services
board.
§48-2C-20. Continuing education for school personnel who are
required to report child abuse and neglect.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the state department of education shall provide or
require courses of continuing education concerning domestic or
family violence for employees who are required by law to report
child abuse or neglect.
(2) Funding for the continuing education provided or required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The courses or requirements shall be prepared and
presented in consultation with public and private agencies that
provide programs for victims of domestic or family violence,
persons who have demonstrated expertise in education and domestic
or family violence, advocates for victims, organizations
representing the interests of shelters and the family protection
services board.