COMMITTEE SUBSTITUTE
FOR
H. B. 2932
(By Delegates Webster, Perry, Long, Williams,
Perdue, Amores, Beach, Armstead, Morgan,
Stemple and Caputo)
(Originating in the Committee on the Judiciary)
[February 19, 2007]
"A BILL to amend and reenact º61-2-29 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
four new sections, designated º61-2-29a, º61-2-29b, º61-2-29c
and §61-2-29d, all relating to protecting incapacitated
persons and the elderly; defining terms; increasing the
penalty for abuse or neglect; establishing offenses and
penalties for death by refusal or failure to supply
necessities; establishing the offenses and penalties for
death by abuse or neglect; and establishing offenses and
penalties for sexual assault and abuse."
Be it enacted by the Legislature of West Virginia:
That º61-2-29 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto four new subsections, designated º61-2-29a, º61-2-29b,
º61-2-29c and §61-2-29d, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or
neglect of elder person; misappropriation or misuse
of assets or funds of elder person; misappropriation
or misuse of assets or funds of elder person through
deception, intimidation, coercion, bodily injury or
threats of bodily injury; penalties.
(a) The following words when used in this section have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical
pain or injury on an incapacitated adult or elder person;
(2) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elder
person on a full-time or temporary basis, regardless of whether
such the person has been designated as a guardian of
such the 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 or elder person;
(3) "Neglect" means:
the unreasonable failure by a caregiver,
guardian or custodian, or any person voluntarily accepting a
supervisory role towards an incapacitated adult or elder person to
exercise a minimum degree of care to assure that incapacitated
adult's or elder person's physical safety or health. "Neglect"
includes, but is not limited to, : (i) the failure to provide the necessities of life to an incapacitated adult or elder person; or
(ii) the unlawful expenditure or willful dissipation of the funds
or other assets owned or paid to or for the benefit of an
incapacitated adult or elder person;
(4) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to physically carry
on the daily activities of life necessary to sustaining life and
reasonable health;
(5) "Elder" means a person age sixty-five years or older;
(6) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(7) "Custodian" means a person over the age of eighteen years
who has or shares actual physical possession of care and custody of
an elder person on a full-time or temporary basis, regardless of
whether the person has been granted custody of the elder person by
any contract, agreement or legal proceeding.
(8) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(9) "Sexual exploitation" means an act whereby:
(A) A person, caregiver, guardian or custodian , whether for
financial gain or not, persuades, induces, entices, coerces, or
otherwise forces an incapacitated adult or elder person to engage
in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code; or
(B) A person, caregiver, guardian or custodian persuades,
induces, entices, coerces, or otherwise forces an incapacitated
adult or elder person to display his or her sex organs for the
sexual gratification of the person, caregiver, guardian or
custodian or a third person, or to display his or her sex organs
under circumstances in which the person, caregiver, guardian or
custodian knows such display is likely to be observed by others who
would be affronted or alarmed;
(10) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code;
(11) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(12) "Guardian" means any person who has care and custody of
an incapacitated adult or elder person as the result of any
contract, power of attorney, agreement or legal proceeding.
(b)
Any A person, caregiver, guardian or custodian who
neglects an incapacitated adult or elder person, or who knowingly
permits another person to neglect
said the adult, is guilty of a
misdemeanor felony and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than
fifteen hundred five
thousand dollars, or imprisoned in
the county or regional jail a state correctional facility for not less than
ninety days one
years
year nor more than
one year five years, or both fined and
imprisoned.
(c)
Any A person, caregiver, guardian or custodian who
intentionally abuses or neglects an incapacitated adult or elder
person is guilty of a felony and, upon conviction thereof, shall,
in the discretion of the court, be confined in a state correctional
facility for not less than two nor more than ten years.
(d)
If any person, A caregiver, guardian or custodian of an
elder person or incapacitated adult,
who willfully misappropriates,
or misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver's, guardian's, or custodian's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another,
he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand
dollars and incarcerated in a
state correctional facility not less
than two nor more than ten years.
(e)
If any person, A caregiver, guardian or custodian of an
elder person or 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 or elder
person for the person's, caregiver's, guardian's, or custodian's
personal use, advantage or wrongful profit or to the advantage or wrongful profit of another,
he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand
dollars and incarcerated in a
state correctional facility not less
than five nor more than fifteen years.
(f) Nothing in this article 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.
º61-2-29a. Murder of an incapacitated adult or elderly person by
a caregiver, guardian or custodian by refusal
or failure to supply necessities; criminal penalties.
(a) A caregiver, guardian or custodian of an incapacitated
adult or elder person who maliciously and intentionally causes the
death of an incapacitated adult or elder person under his or her
care, custody or control by his or her failure or refusal to supply
the incapacitated adult or elder person with necessary food,
clothing, shelter or medical care, is guilty of murder in the first
degree.
(b) A caregiver, guardian or custodian of an incapacitated
adult or elder person who causes the death of an incapacitated
adult or elder person under his or her care, custody or control by
knowingly allowing any other person to maliciously and intentionally fail or refuse to supply the incapacitated adult or
elder person with necessary food, clothing, shelter or medical
care, is guilty, like the other person, of murder in the first
degree.
(c) The penalty for offenses defined in this section shall be
that which is prescribed for murder in the first degree under the
provisions of section two, article two of this chapter.
(d) The provisions of this section do not apply to any
caregiver, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply an incapacitated adult
or elder person 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 or elder
person is an adherent or member.
º61-2-29b. Death of an incapacitated adult or elder person from
abuse by a caregiver, guardian, or custodian;
criminal penalties.
(a) A caregiver, guardian or custodian of an incapacitated
adult or elder person who maliciously and intentionally inflicts
upon an incapacitated adult or elder person under his or her care,
custody or control substantial physical pain, illness or any
impairment of physical condition by any means other than accidental
means, thereby causing the death of the incapacitated adult or
elder person, is guilty of murder in the second degree.
(b) A caregiver, guardian or custodian of an incapacitated
adult or elder person who knowingly allows any other person to
maliciously and intentionally inflict upon an incapacitated adult
or elder person under the care, custody or control of the
caregiver, guardian or custodian substantial physical pain, illness
or any impairment of physical condition by other than accidental
means, which thereby causes the death of the incapacitated adult or
elder person, is guilty, like the other person, of murder in the
second degree.
(c) A person convicted of a felony an offense described in
subsection (a) or (b) of this section shall be punished by a
definite term of imprisonment in a state correctional facility
which is not less than ten 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.
(d) The provisions of this section do not apply to:
(1) Any caregiver, guardian or custodian or other person who,
without malice fails or refuses, or allows another person to,
without malice, fail or refuse, to supply an incapacitated adult
or elder person 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 or elder
person is an adherent or member; or
(2) Any health care provider who fails or refuses, or allows
another person to fail or refuse, to supply an incapacitated adult
or elder person 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 or elder
person is an adherent or member, or where the failure or refusal is
pursuant to a properly executed do-not-resuscitate form.
º61-2-29c. Neglect of an incapacitated adult or elder person
resulting in death; criminal penalties.
(a) A caregiver, guardian or custodian who neglects an
incapacitated adult or elder person under his or her care, custody
or control and by that neglect causes the death of the
incapacitated adult or elder person, is guilty of a felony and,
upon conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars and committed to the
custody of a state correctional facility the Division of
Corrections for not less than three nor more than fifteen years.
(b) No incapacitated adult or elder person who, in lieu of
medical treatment, has competently agreed to treatment, either
personally or by medical power of attorney, solely by spiritual
means through prayer in accordance with a recognized method of
religious healing with a reasonable proven record of success shall, for that reason alone, be considered to have been neglected within
the provisions of this section. A method of religious healing
shall be presumed to be a recognized method of religious healing
if fees and expenses incurred in connection with the treatment are
permitted to be deducted from taxable income as "medical expenses"
pursuant to regulations or rules promulgated by the United States
Internal Revenue Service.
(c) A caregiver, guardian or custodian of an incapacitated
adult or elder person who inhibits or interferes with the court
ordered provision of medical treatment of an incapacitated adult or
elder person may be considered neglectful for the purposes of this
section.
º61-2-29d. Caregiver, guardian or custodian procuring or allowing
sexual abuse of an incapacitated adult or elder
person; criminal penalties.
(a) In addition to, and notwithstanding, any other offenses
set forth in this code, the Legislature hereby declares a separate
and distinct offense under this section as follows: If a person,
caregiver, guardian or custodian of an incapacitated adult or elder
person knowingly procures another person to engage in or attempt to
engage in the sexual exploitation of, or in sexual intercourse
with, sexual intrusion of, or sexual contact with an incapacitated
adult or elder person under the care, custody or control of the
caregiver, guardian or custodian, then such person, caregiver, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be be imprisoned in a state correctional
facility not less than five years nor more than fifteen years.
(b) If a person, caregiver, guardian or custodian of an
incapacitated adult or elder person knowingly allows another person
to engage in the sexual exploitation of, or in sexual intercourse
with, sexual intrusion of, or sexual contact with an incapacitated
adult or elder person under their care, custody or control, despite
the fact that the incapacitated adult or elder person may have
suffered no apparent physical injury or mental or emotional injury
as a result of the conduct, then such person, caregiver, guardian
or custodian shall be guilty of a felony and, upon conviction
shall be imprisoned in a state correctional facility not less than
five years nor more than fifteen years.
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