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Enrolled Version - Final Version Senate Bill 1020 History

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Key: Green = existing Code. Red = new code to be enacted
ENROLLED

Senate Bill No. 1020

(By Senators Wooton, Anderson, Macnaughtan,

Plymale, Claypole, Holliday, Miller, Minard,

Ross, Wagner, Wiedebusch and Dittmar)

__________

[Passed March 18, 1994; in effect ninety days from passage.]

__________




AN ACT 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 of said article; 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 orrecklessly 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 which the abuse occurred or in the county in which the respondent isliving. 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 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-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 thepetition 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 a hearing held under the provisions of this article shall beprecluded 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 sum for temporary support and maintenance of the petitioner, whereappropriate;
(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 respondent and any law-enforcement agency having jurisdiction to enforce theorder, 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, provide transportation for or facilitate transportation of the victim orvictims, 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 abuse shall 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 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 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 tosection 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 said order. A sworn affidavit may be executed by the party awardedexclusive 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 protective order and post a bond as surety for faithful compliance with suchorder.
§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 shalldirect 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 in providing 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 orintentionally 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 whichcause 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 battered child 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, whensuch 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, any of the following acts which a parent, guardian or custodian shallengage 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 a third person, or to display his or her sex organs undercircumstances 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 reporter shall also immediately report, or cause a report to be made tothe 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 abuseor 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, adoptivemother 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, shall be imprisoned in the penitentiary not less than five years normore 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 victim who is eleven years old or less must submit for law-enforcementor 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, if the victim first makes his or her previous sexual conduct anissue 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 inarticle 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 other circumstances present a danger of exploitation or of interferencein 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 thissection 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 or of 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 deem advisable, 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 findings that other conditions of probation are inadequate and that aperiod of confinement is necessary.
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