COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 17
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 11, 1994.]
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A BILL to amend and reenact sections six, ten and fourteen,
article two-a, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to amend article two, chapter sixty-one of said code by
adding thereto a new section, designated section twenty-
eight, all relating to the prevention of domestic violence;
extending the period of time for which protective orders may
be effective; changing certain terminology; mandating
law-enforcement officers to make arrests for observed
violations of protective orders; authorizing certain other
individuals to seek a warrant for the arrest of a person
violating a protective order; revising the provisions
governing the arrest of persons alleged to have committed
certain crimes against family or household members; defining
the term "credible corroborative evidence"; creating new
crimes and providing penalties therefor; and prohibiting
actions for false arrest or unlawful detention against
officers affecting arrests in connection with crimes
involving domestic violence.
Be it enacted by the Legislature of West Virginia:
That sections six, ten and fourteen, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that article two, chapter sixty-one of said code be amended by
adding thereto a new section, designated section twenty-eight,
all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§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 temporary visitation rights with regard to
the minor children and 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 custodialparent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household 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:
Provided, That if a party has
filed for divorce, separate maintenance or annulment and no
temporary or final divorce order is entered prior to expiration
of the protective order, upon petitioner's motion, the protective
order shall remain in effect until such temporary or final
divorce order is entered. 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 fullforce 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 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-10. Enforcement procedure for temporary and final
protective orders.
(a) Upon issuance of a temporary order as provided in
section five of this article, and service thereof upon the
respondent, or under relief granted in a protective order as
provided in subsections (a) and (b), section six of this article
of which the respondent has notice, a copy of such order shall,
no later than the close of the next business day, be delivered by
the court or the clerk 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:
Provided, That upon the expiration of any
order issued pursuant to section five or six of this article, any
such law-enforcement agency which has any such order on fileshall immediately expunge its confidential file of any reference
thereto and destroy all copies of such order in its possession,
custody or control. 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.
(b) Any person who observes a violation of such order or the
violated party 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 a law-enforcement officer observes a violation of
a valid order, he or she shall immediately arrest the subject of
the order. In cases of violation of such orders occurring
outside the presence of an officer, any person authorized to file
a petition under the provisions of section four of this article
may apply to a court in session in the county in which the
violation occurred or the county in which the order was issued
for a warrant of arrest. If the court finds probable cause to
believe that a valid order has been violated, the court shall
issue such warrant for the arrest of the subject of the orderwherever he or she may be found.
(d) 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 has taken
place, the court or magistrate shall set a time and place for a
hearing, to take place within five days, and serve forthwith upon
the alleged violator an order to show cause why he or she should
not be held in contempt for violation of the prior order, which
unless waived by the defendant shall be by trial by a jury of six
persons. The remedies provided by this section shall be limited
to violations of a temporary order or protective order entered
pursuant to subsection (a) or (b), section six of this article.
A respondent who shall abuse the petitioner and/or minor children
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 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 nor
more than two thousand dollars.
§48-2A-14. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code, where a
family or household member is alleged to have committed a
violation of the provisions of subsection (a) or (b), section
twenty-eight, article two, chapter sixty-one of this code against
another family or household member, in addition to any other
authority to arrest granted by this code, a law-enforcementofficer has authority to arrest the alleged perpetrator for said
offense when:
(1) The law-enforcement officer has observed credible
corroborative evidence that the offense has occurred; and
(2) The law-enforcement officer has received, from the
victim or a witness, a verbal or written allegation of facts
constituting a violation of section twenty-eight, article two,
chapter sixty-one of this code; or
(3) The law-enforcement officer has observed credible
evidence that the accused committed the offense.
(b) For purposes of this section, "credible corroborative
evidence" shall have the same meaning ascribed to the term by
legislative rule proposed by the governor's committee on crime,
delinquency and correction as the same is authorized by
legislative enactment during the regular session of the
Legislature in the year one thousand nine hundred ninety-four.
(c) Whenever any person is arrested pursuant to subsection
(a) of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the
Magistrate Courts of West Virginia.
(d) Where an arrest for a violation of subsection (c),
section twenty-eight, article two, chapter sixty-one of this code
is authorized pursuant to this section, such shall constitute
prima facie evidence that the person arrested constitutes a
threat or danger to the victim or other family or household
members for the purpose of setting conditions of bail pursuant tosection seventeen-c, article one-c, chapter sixty-two of this
code.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-28. Domestic violence. -- Criminal acts.
(a)
Domestic battery. -- If any family or household member
unlawfully and intentionally makes physical contact of an
insulting or provoking nature with another family or household
member or unlawfully and intentionally causes physical harm to
another family or household member, he or she is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail for not more than twelve months, or fined not more than five
hundred dollars, or both fined and confined.
(b)
Domestic assault. --
If any family or household member
unlawfully attempts to commit a violent injury of another family
or household member or unlawfully commits an act which places
another family or household member in reasonable apprehension of
immediately receiving a violent injury, he or she is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail for not more than six months, or fined not more than one
hundred dollars, or both fined and confined.
(c)
Third offense. -- A family or household member who has
been convicted of a third or subsequent domestic battery and/or
domestic assault as defined in this section, assault and/or
battery as defined in section nine of this article when committed
against a family or household member, or any combination of such
offenses, is guilty of a felony if such offense occurs within ten
years of a prior conviction of any of these offenses, and, uponconviction thereof, shall be confined in the penitentiary not
less than one nor more than five years and fined not exceeding
five hundred dollars.
(d) For the purposes of this section the term "family or
household member" means "family or household member" as defined
in section two, article two-a, chapter forty-eight of this code.
(e) A person charged with violation of this section may not
also be charged with a violation of subsection (b) or (c),
section nine of this article.
(f) No law-enforcement officer shall be subject to any civil
or criminal action for false arrest or unlawful detention for
affecting an arrest pursuant to this section or pursuant to
section fourteen, article two-a, chapter forty-eight of this
code.