ENGROSSED
Senate Bill No. 1020
(By Senators Wooton, Anderson, Macnaughtan,
Plymale, Claypole, Holliday, Miller, Minard,
Ross, Wagner, Wiedebusch and Dittmar)
__________
[Originating in the Committee on the Judiciary;
reported March 16, 1994.]
__________
A BILL to repeal section seven, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections two, three, five, six, nine and ten, article two-a
of said chapter; to further amend said article by adding
thereto four new sections, designated sections ten-a, ten-b,
ten-c and ten-d; to amend and reenact section fifteen,
article two-c of said chapter; to amend and reenact section
three, article one, chapter forty-nine of said code; to
amend and reenact section eleven, article six of said
chapter; to amend and reenact sections two and five, article
six-a of said chapter; to amend and reenact sections twelve
and thirteen, article eight, chapter sixty-one of said code;
to amend and reenact section eleven-a, article eight-b of
said chapter; to amend and reenact section nine, article
eight-d of said chapter; to amend and reenact section
seventeen-a, article one-c, chapter sixty-two of said code;
to amend and reenact section one, article eleven-a of said
chapter; and to amend and reenact section nine, article
twelve of said chapter, all relating to domestic relations
generally; making certain technical corrections to correct
clerical errors and incorrect references; redefining certain
terms relating to family violence; service of all protective
orders by publication; continuance of hearings on temporary
orders; prior reports of domestic violence to
law-enforcement agencies; purging and sealing of files
containing protective orders; filing of protective orders
with law enforcement; civil and criminal penalties for
violation of protective orders; correcting references to
domestic violence records deemed confidential; defining
serious physical abuse of a child and clarifying references
thereto; defining sibling; deleting requirement that
documentation of certain instances of abuse and neglect be
provided within three days; referencing child abuse and
neglect provisions for parents guilty of incest; further
making technical corrections to section references; and
criminal penalties.
Be it enacted by the Legislature of West Virginia:
That section seven, article two-a of chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,as amended, be repealed; that sections two, three, five, six,
nine and ten of said article be amended and reenacted; that said
article be further amended by adding thereto four new sections,
designated sections ten-a, ten-b, ten-c and ten-d; that section
fifteen, article two-c of said chapter be amended and reenacted;
that section three, article one, chapter forty-nine of said code
be amended and reenacted; that section eleven, article six of
said chapter be amended and reenacted; that sections two and
five, article six-a of said chapter be amended and reenacted;
that sections twelve and thirteen, article eight, chapter
sixty-one of said code be amended and reenacted; that section
eleven-a, article eight-b of said chapter be amended and
reenacted; that section nine, article eight-d of said chapter be
amended and reenacted; that section seventeen-a, article one-c,
chapter sixty-two of said code be amended and reenacted; that
section one, article eleven-a of said chapter be amended and
reenacted; and that section nine, article twelve of said chapter
be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Family violence" or "abuse" means the occurrence of one
or more of the following acts between family or household
members:
(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, other persons related by blood or
marriage, persons who are presently or in the past have resided
or cohabited together or a person with whom the victim has a
child in common.
§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, shall have
concurrent jurisdiction over proceedings under this article.
(b)
Venue.
-- The action may be heard in the county in whichthe abuse occurred or in the county in which the respondent is
living. If the parties are married, 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 the 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 the court of another state shall be accorded full
faith and credit and enforced as if it were an order of this
state if its terms and conditions are substantially similar to
those which may be imposed by a court of this state.
(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 inaccordance 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-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 abuse
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
purposes of 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. Such initial
protective order shall remain effective until such time as a
hearing is held. The order 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 abuse 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 upon whether the petition may be
dismissed. 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 ahearing 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 and if the petitioner
has proven the allegations of abuse by a preponderance of the
evidence, then the court shall issue a protective order which
shall direct the respondent to refrain from abusing the
petitioner and/or the minor children. 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;
(3) Establishing terms of temporary visitation with regard
to the minor children 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 sumfor 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 members or family members for the purpose of violating
the protective order;
(7) Directing the respondent to participate in counseling;
or
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner in any public place.
(b) Any final protective order shall be for a fixed period
of time not to exceed ninety days except as otherwise provided by
subsection (d), section three-a of this article. The court may
amend its order at any time upon subsequent petition filed by
either party. If the court enters an initial order for a period
of less than ninety days, it shall, after notice and hearing,
extend its initial order for the full ninety-day period if it
finds the petitioner or the minor child or children continue to
need protection from abuse. The order shall be in full force and
effect in every county in this state. The order shall state that
it is in full force and effect in every county in this state.
(c) No order under this article shall in any manner affect
title to any real property.
(d) Certified copies of any order made under the provisions
of this section shall be issued to the petitioner, the respondentand any law-enforcement agency having jurisdiction to enforce the
order, including the city police, the county sheriff's office or
local office of the division of public safety within twenty-four
hours of the entry of the order.
(e) No mutual protective orders shall be granted unless both
parties have filed a petition under section four of this article
and have proven the allegations of abuse by a preponderance of
the evidence.
§48-2A-9. Law-enforcement response to 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 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 family violence shall advise the person subject to
abuse 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 abuse shall, in addition to providing the information
required in subsection (a) of this section, providetransportation 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 family or household abuse reported to it and
shall monthly make and deliver to the department of public safety
a report on a form prescribed by the department, listing all such
incidents of family or household abuse. Such reports shall
include:
(1) The age and sex of the abused and abusing parties;
(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 abused's request
for assistance;
(6) Whether any prior reports have been made, received or
filed regarding family or household abuse 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 abused
party:
Provided,
That no information which will permit the
identification of the parties involved in any incident of abuseshall be included in such report.
(e) The department of public safety 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 the department's 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 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 otherwisereported 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 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 orinternational 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
division of public safety 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 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 such 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 division of public safety, where it
shall be placed in a confidential file, with access provided only
to the law-enforcement agency and the respondent named on saidorder. A sworn affidavit may be executed by the party awarded
exclusive possession of the residence or household, pursuant to
an order entered under subsection (b), section six of this
article, and delivered to such law-enforcement agency
simultaneously with any such order, giving his or her consent for
a law-enforcement officer to enter such residence or household,
without a warrant, to enforce such protective order or temporary
order. Orders shall be promptly served upon the respondent.
Failure to serve shall 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 person authorized to file a petition under the
provisions of section four of this article 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 respondent.
(c) Upon a finding of contempt, the court may order the
respondent to comply with specific provisions of the protectiveorder and post a bond as surety for faithful compliance with such
order.
§48-2A-10b. Violations of protective orders; criminal
complaints.
(a) When a respondent abuses the petitioner and/or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article, any person
authorized to file a petition pursuant to the provisions of
section four of this article or the legal guardian or guardian ad
litem may file a petition for civil contempt as set forth in
section ten-a of this article.
(b) When any such violation of a valid order has occurred,
the petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a
warrant for arrest of the person charged.
§48-2A-10c. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner and/or minor children or the respondent's
physical presence at any location in knowing and willful
violation of the terms of a temporary or final protective order
issued under the provisions of this article, he or she shall
immediately arrest the respondent.
(b) Any person who observes a violation of a protective
order as described in this section, or the victim of such abuse
or unlawful presence, may call a local law-enforcement agency,which shall verify the existence of a current order, and shall
direct a law-enforcement officer to promptly investigate the
alleged violation.
(c) Where there is an arrest, the officer shall take the
arrested person before a court or a magistrate and, upon a
finding of probable cause to believe a violation of an order as
set forth in this section has occurred, the court or magistrate
shall set a time and place for a hearing in accordance with the
West Virginia rules of criminal procedure.
§48-2A-10d. Misdemeanor offense of violation of protective
order.
A respondent who abuses the petitioner and/or minor children
or who is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be confined
in the county or regional jail for a period of not less than one
day nor more than one year, which jail term shall include actual
confinement of not less than twenty-four hours, and shall be
fined not less than two hundred fifty dollars or more than two
thousand dollars.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§48-2C-15. Confidentiality.
(a) No program or shelter receiving funds pursuant to this
article shall disclose or be compelled to disclose, release or be
compelled to release any written records created or maintained inproviding services pursuant to this article except:
(1) Upon written consent of the person seeking or who has
sought services from the program or the shelter;
(2) In any proceeding brought under sections four and five,
article six, chapter nine of this code or article six, chapter
forty-nine of this code;
(3) As mandated by article six-a, chapter forty-nine and
article six, chapter nine of this code;
(4) Pursuant to an order of any court based upon a finding
that said information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the
confidentiality established by this section;
(5) To protect against a clear and substantial danger of
imminent injury by a client to him or herself or another;
(6) For treatment or internal review purposes to the staff
of any program or shelter if the client is also being cared for
by other health professionals in the program or shelter.
(b) No consent or authorization for the transmission or
disclosure of confidential information shall be effective unless
it is in writing and signed by the client. Every person signing
an authorization shall be given a copy.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as
alleged in the petition charging child abuse or neglect, has been
adjudged by the court to constitute child abuse or neglect.
(c) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent
treatment or maltreatment of a child by a parent, guardian or
custodian who is responsible for the child's welfare, under
circumstances which harm or threaten the health and welfare of
the child.
(d) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from
their families by identifying family problems and assisting
families in resolving problems which could lead to a removal of
children and a breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so
as to restore such children to their families;
(5) Placing children in suitable adoptive homes when
restoring the children to their families is not possible or
appropriate; and
(6) Assuring the adequate care of children away from their
families when the children have been placed in the custody of the
department or third parties.
(e) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions
threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker; or
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as batteredchild syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(f) "Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, child care and law-enforcement personnel, social
workers, psychologists and psychiatrists. Their goal is to pool
their respective skills in order to formulate accurate diagnoses
and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children.
"Community team" means a multidisciplinary group which addresses
the general problem of child abuse and neglect in a given
community and may consist of several multidisciplinary teams with
different functions.
(g) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened
by a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education
is conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(h) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and
psychological support appropriate to a child's age and state of
development.
(i) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have willingly participated in such conduct or
the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is sixteen years of age or older, anyof the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the
purpose of gratifying the sexual desire of the parent, guardian
or custodian, of the person making such display, or of the child,
or for the purpose of affronting or alarming the child.
(j) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.
(k) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian or athird person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows
such display is likely to be observed by others who would be
affronted or alarmed.
(l) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-
one of this code.
(m) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(n) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited
to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.
(o) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(p) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(q) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by
the same parents or parent.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-11. Conviction for offenses against children.
In any case where a person is convicted of an offense,
described in section twelve, article eight, chapter sixty-one of
this code; and articles eight-b and eight-d of said chapter;
against any child and further has custodial, visitation or other
parental rights to the child, at the time of sentencing, the
court shall make a finding that the person is an abusing parent
within the meaning of this article and the court shall take such
further steps as are required by this article.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-2. Persons mandated to report suspected abuse and
neglect.
When any medical, dental or mental health professional,
Christian Science practitioner, religious healer, school teacher
or other school personnel, social service worker, child care or
foster care worker, emergency medical services personnel, peace
officer or law-enforcement official, member of the clergy,
circuit court judge, family law master or magistrate has
reasonable cause to suspect that a child is neglected or abused
or observes the child being subjected to conditions that are
likely to result in abuse or neglect, such person shall
immediately, and not more than forty-eight hours after suspecting
this abuse, report the circumstances or cause a report to be made
to the state department of human services:
Provided,
That in any
case where the reporter believes that the child suffered serious
physical abuse or sexual abuse or sexual assault, the reportershall also immediately report, or cause a report to be made to
the division of public safety and any law-enforcement agency
having jurisdiction to investigate the complaint:
Provided,
however,
That any person required to report under this article
who is a member of the staff of a public or private institution,
school, facility or agency shall immediately notify the person in
charge of such institution, school, facility or agency or a
designated agent thereof, who shall report or cause a report to
be made. However, nothing in this article is intended to prevent
individuals from reporting on their own behalf.
In addition to those persons and officials specifically
required to report situations involving suspected abuse or
neglect of children, any other person may make a report if such
person has reasonable cause to suspect that a child has been
abused or neglected in a home or institution or observes the
child being subjected to conditions or circumstances that would
reasonably result in abuse or neglect.
§49-6A-5. Reporting procedures.
Reports of child abuse and neglect pursuant to this article
shall be made immediately by telephone to the local state
department child protective service agency and shall be followed
by a written report within forty-eight hours if so requested by
the receiving agency. The state department shall establish and
maintain a twenty-four hour, seven-day-a-week telephone number to
receive such calls reporting suspected or known child abuse or
neglect.
A copy of any report of serious physical abuse, sexual abuse
or assault shall be forwarded by the department to the
appropriate law-enforcement agency, the prosecuting attorney or
the coroner or medical examiner's office. All reports under this
article shall be confidential and unless there are pending
proceedings with regard thereto shall be destroyed six years
following their preparation. Reports of known or suspected
institutional child abuse or neglect shall be made and received
as all other reports made pursuant to this article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive
daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive
father or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or
daughter;
(6) "Grandfather" means the father of a person's father or
mother;
(7) "Grandmother" means the mother of a person's father or
mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive
mother or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or
sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons
involving penetration, however slight, of the female sex organ by
the male sex organ or involving contact between the sex organs of
one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between persons
involving penetration, however slight, of the female sex organ or
of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for
gratifying the sexual desire of either party;
(14) "Sister" means the daughter of a person's father or
mother;
(15) "Son" means a person's natural son, adoptive son or the
son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or
mother.
(b) A person is guilty of incest when such person engages in
sexual intercourse or sexual intrusion with his or her father,
mother, brother, sister, daughter, son, grandfather, grandmother,
grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section
shall be guilty of a felony, and, upon conviction thereof, shallbe imprisoned in the penitentiary not less than five years nor
more than fifteen years, or fined not less than five hundred
dollars nor more than five thousand dollars and imprisoned in the
penitentiary not less than five years nor more than fifteen
years.
(d) In addition to any penalty provided under this section
and any restitution which may be ordered by the court under
article eleven-a of this chapter, the court may order any person
convicted under the provisions of this section where the victim
is a minor to pay all or any portion of the cost of medical,
psychological or psychiatric treatment of the victim, the need
for which results from the act or acts for which the person is
convicted, whether or not the victim is considered to have
sustained bodily injury.
(e) In any case where a person is convicted of an offense
described herein against a child and further has or may have
custodial, visitation or other parental rights to the child, the
court shall find that the person is an abusing parent within the
meaning of article six, chapter forty-nine of this code, and
shall take such further action in accord with the provisions of
said article.
§61-8-13. Incest; limits on interviews of children eleven years
old or less; evidence.
(a) In any prosecution under the provisions of section
twelve of this article, the court may provide by rule for
reasonable limits on the number of interviews to which a victimwho is eleven years old or less must submit for law-enforcement
or discovery purposes. To the extent possible the rule shall
protect the mental and emotional health of the child from the
psychological damage of repeated interrogation and at the same
time preserve the rights of the public and the defendant.
(b) At any stage of the proceedings, in any prosecution
under this article, the court may permit a child who is eleven
years old or less to use anatomically correct dolls, mannequins
or drawings to assist such child in testifying.
(c) In any prosecution under this article in which the
victim's lack of consent is based solely on the incapacity to
consent because such victim was below a critical age, evidence of
specific instances of the victim's sexual conduct, opinion
evidence of the victim's sexual conduct and reputation evidence
of the victim's sexual conduct shall not be admissible. In any
other prosecution under this article, evidence of specific
instances of the victim's prior sexual conduct with the defendant
shall be admissible on the issue of consent:
Provided,
That such
evidence heard first out of the presence of the jury is found by
the judge to be relevant.
(d) In any prosecution under this article evidence of
specific instances of the victim's sexual conduct with persons
other than the defendant, opinion evidence of the victim's sexual
conduct and reputation evidence of the victim's sexual conduct
shall not be admissible:
Provided,
That such evidence shall be
admissible solely for the purpose of impeaching credibility, ifthe victim first makes his or her previous sexual conduct an
issue in the trial by introducing evidence with respect thereto.
(e) In any prosecution under this article, neither age nor
mental capacity of the victim shall preclude the victim from
testifying.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-11a. Convictions for offenses against children.
In any case where a person is convicted of an offense
described in this article against a child and further has or may
have custodial, visitation or other parental rights to the child,
the court shall find that the person is an abusing parent within
the meaning of article six, chapter forty-nine of this code, and
shall take such further action in accord with the provisions of
said article.
ARTICLE 8D. CHILD ABUSE.
§61-8D-9. Convictions for offenses against children.
In any case where a person is convicted of an offense
described in this article against a child and further has or may
have custodial, visitation or other parental rights to the child,
the court shall find that such person is an abusing parent within
the meaning of article six, chapter forty-nine of this code and
shall take such further action in accord with the provisions of
said article.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§62-1C-17a. Bail in situations of alleged child abuse.
(a) When the offense charged is an offense defined in
article eight-d, chapter sixty-one of this code, it shall be a
condition of bond that the defendant shall not live in the same
residence as and shall have no contact with the victim of the
alleged offense and the court may make such other conditions of
bond with respect to contact with the victim as it deems
necessary under the circumstances to protect the child:
Provided,
That the requirement of no contact with the victim of
the alleged offense and all other conditions of bond may be
reviewed by summary petition from the magistrate court to the
circuit court or from the circuit court to the supreme court of
appeals or any justice thereof.
(b) In cases where the charge is a sexual offense, as
defined in chapter sixty-one of this code, against any person,
the court, upon a showing of cause, may make such conditions of
bond on the defendant or on any witness bond issued under section
fifteen of this article as it deems necessary with respect to
contact with the victim.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1. Release for work and other purposes by courts of
record with criminal jurisdiction.
(1) When a defendant is sentenced or committed for a term of
one year or less by a court of record having criminal
jurisdiction, such court may in its order grant to such defendant
the privilege of leaving the jail during necessary and reasonable
hours for any of the following purposes:
(a) To work at his employment;
(b) To seek employment;
(c) To conduct his own business or to engage in other self-
employment, including, in the case of a woman, housekeeping and
attending to the needs of her family;
(d) To attend an educational institution;
(e) To obtain medical treatment;
(f) To devote time to any other purpose approved of or
ordered by the court, including participation in the litter
control program of the county unless the court specifically finds
that this alternative service would be inappropriate.
(2) Whenever an inmate who has been granted the privilege of
leaving the jail under this section is not engaged in the
activity for which such leave is granted, he shall be confined in
jail.
(3) An inmate sentenced to ordinary confinement may petition
the court at any time after sentence for the privilege of leaving
jail under this section and may renew his petition in the
discretion of the court. The court may withdraw the privilege at
any time by order entered with or without notice.
(4) If the inmate has been granted permission to leave the
jail to seek or take employment, the court's probation officers,
or if none, the state's division of corrections shall assist him
in obtaining suitable employment and in making certain that
employment already obtained is suitable. Employment shall not be
deemed suitable if the wages or working conditions or othercircumstances present a danger of exploitation or of interference
in a labor dispute in the establishment in which the inmate would
be employed.
(5) If an inmate is employed for wages or salary, the clerk
of the court shall collect the same or shall require the inmate
to turn over his wages or salary in full when received, and shall
deposit the same in a trust account and shall keep a ledger
showing the status of the account of each inmate. Earnings
levied upon pursuant to writ of attachment or execution or in
other lawful manner shall be collected from the employer and
shall not be collected hereunder, but when the clerk has
requested transmittal of earnings prior to levy, such request
shall have priority. When an employer transmits such earnings to
the clerk pursuant to this subsection he shall have no liability
to the inmate for such earnings. From such earnings the clerk
shall pay the inmate's board and personal expenses both inside
and outside the jail and shall deduct installments on fines, if
any, and, to the extent directed by the court, shall pay the
support of the inmate's dependents:
Provided,
That at least
twenty-five percent of the earnings collected by the clerk on
behalf of an inmate shall be paid for the support of such
inmate's dependents, if any. If sufficient funds are available
after making the foregoing payments, the clerk may, with the
consent of the inmate, pay, in whole or in part, any unpaid debts
of the inmate. Any balance shall be retained and shall be paid
to the inmate at the time of his discharge.
(6) An inmate who is serving his sentence pursuant to this
section shall be eligible for a reduction of his term for good
behavior and faithful performance of duties in the same manner as
if he had served his term in ordinary confinement.
(7) The court shall not make an order granting the privilege
of leaving the institution under this section unless it is
satisfied that there are adequate facilities for the
administration of such privilege in the jail or other institution
in which the defendant will be confined.
(8) In every case wherein the defendant has been convicted
of an offense, defined in section twelve, article eight, chapter
sixty-one, or in article eight-b or eight-d of said chapter
against a child, the defendant shall not live in the same
residence as any minor child, nor exercise visitation with any
minor child and shall have no contact with the victim of the
offense:
Provided,
That the defendant may petition the court of
the circuit wherein he was so convicted for a modification of
this term and condition of this probation and the burden shall
rest upon the defendant to demonstrate that a modification is in
the best interest of the child.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-9. Conditions of release on probation.
(a) Release on probation shall be upon the following
conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this or any other state orof the United States.
(2) That he shall not, during the term of his probation,
leave the state without the consent of the court which placed him
on probation.
(3) That he shall comply with the rules and regulations
prescribed by the court or by the board of probation and parole,
as the case may be, for his supervision by the probation officer.
(4) That in every case wherein the probationer has been
convicted of an offense defined in section twelve, article eight,
chapter sixty-one of this code or article eight-b or eight-d of
said chapter, against a child, the probationer shall not live in
the same residence as any minor child, nor exercise visitation
with any minor child and shall have no contact with the victim of
the offense:
Provided,
That the probationer may petition the
court of the circuit wherein he was so convicted for a
modification of this term and condition of his probation and the
burden shall rest upon the probationer to demonstrate that a
modification is in the best interest of the child.
(5) That the probationer be required to pay a fee, based
upon his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision. All moneys collected as
fees from probationers shall be deposited with the circuit clerk
who shall, on a monthly basis, remit said moneys collected to the
state treasurer for deposit in the state general revenue fund.
(b) In addition the court may impose, subject to
modification at any time, any other conditions which it may deemadvisable, including, but not limited to, any of the following:
(1) That he shall make restitution or reparation, in whole
or in part, immediately or within the period of probation, to any
party injured by the crime for which he has been convicted.
(2) That he shall pay any fine assessed and the costs of the
proceeding in such installments as the court may direct.
(3) That he shall make contribution from his earnings, in
such sums as the court may direct, for the support of his
dependents.
(4) That he shall, in the discretion of the court, be
required to serve a period of confinement in the county jail of
the county in which he was convicted for a period not to exceed
one third of the minimum sentence established by law or one third
of the least possible period of confinement in an indeterminate
sentence, but in no case shall such period of confinement exceed
six consecutive months. The court shall have authority to
sentence the defendant within such six-month period to
intermittent periods of confinement including, but not limited
to, weekends or holidays and may grant unto the defendant
intermittent periods of release in order that he may work at his
employment or for such other reasons or purposes as the court may
deem appropriate:
Provided,
That the provisions of article
eleven-a of this chapter shall not apply to such intermittent
periods of confinement and release except to the extent that the
court may direct. If a period of confinement is required as a
condition of probation, the court shall make special findingsthat other conditions of probation are inadequate and that a
period of confinement is necessary.