ENGROSSED
Senate Bill No. 192
(By Senators Hunter, Fanning, Minard, Mitchell, Oliverio, Redd,
Facemyer, McKenzie, Kessler, Unger, Rowe, Snyder, Edgell and
Sprouse)
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[Introduced February 21, 2001;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section nine-a, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to stalking and
harassment generally; penalties; and enhanced penalties for
violations of protective order.
Be it enacted by the Legislature of West Virginia:
That section nine-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who knowingly, willfully, and repeatedly
follows and harasses, or knowingly, willfully, and repeatedly
follows and makes a credible threat or knowingly, willfully and
repeatedly harasses and makes a credible threat against a person
with whom he or she has, or in the past has had or with whom he or
she seeks to establish a personal or social relationship, whether
or not such intention is reciprocated, or against a member of that
person's immediate family, with the intent to place that person in
reasonable apprehension that he or she or a member of his or her
immediate family will suffer death, bodily injury, sexual assault,
battery or kidnaping, is guilty of a misdemeanor and, upon
conviction thereof, shall be incarcerated in the county or regional
jail for not more than six months or fined not more than one
thousand dollars, or both.
(a) Any person who willfully and repeatedly follows and
harasses a person with whom he or she has, or in the past has had
or with whom he or she seeks to establish a personal or social
relationship, whether or not such intention is reciprocated, a
member of that person's immediate family, his or her current social
companion, his or her professional counselor or attorney is guilty
of a misdemeanor and, upon conviction thereof, shall be
incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and makes
a credible threat against a person with whom he or she has, or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not such intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney with the intent to place or
placing him or her in reasonable apprehension that he or she or a
member of his or her immediate family will suffer death, sexual
assault, kidnaping, bodily injury or battery is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated in
the county or regional jail for not more than six months or fined
not more than one thousand dollars, or both.
(c) Any person who repeatedly harasses or repeatedly makes
credible threats against a person with whom he or she has, or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not such intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than
one thousand dollars. or both.
(b) (d) Notwithstanding the provisions of section ten, article
two-a, chapter forty-eight of this code any provision of this code
to the contrary, any person who violates the provisions of
subsection (a), (b) or (c) of this section in violation of an order
entered by a circuit court, magistrate court or family law master,
in effect and entered pursuant to section thirteen or fifteen,
article two, chapter forty-eight of this code or section five or
six, article two-a of said chapter, is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county jail
for not less than ninety days nor more than one year or fined not
less than two thousand dollars nor more than five thousand dollars,
or both.
(c) A second conviction for a violation of this section
occurring within five years of a prior conviction is punishable by
incarceration in the county jail for not less than ninety days nor
more than one year or fined not less than two thousand dollars nor
more than five thousand dollars, or both.
(d)(e) A third second or subsequent conviction for a violation
of this section occurring within five years of a prior conviction
is a felony punishable by incarceration in the penitentiary a state correctional facility for not less than one year nor more than five
years or fined not less than three thousand dollars nor more than
ten thousand dollars, or both.
(e)(f) Notwithstanding any provision of this code to the
contrary, any person against whom a permanent restraining order
issued pursuant to subsection (i) of this section final protective
order is in effect pursuant to the provisions of section six,
article two-a, chapter forty-eight of this code who is convicted of
a second or subsequent violation of the provisions of this section
shall be incarcerated in the county jail for not less than six
months nor more than one year, or fined not less than two thousand
dollars nor more than five thousand dollars, or both guilty of a
felony and punishable by incarceration in a state correctional
facility for not less than one year nor more than five years or
fined not less than three thousand dollars nor more than ten
thousand dollars, or both.
(f)(g) For the purposes of this section:
(1) "Harasses" means knowing and willful conduct directed at
a specific person or persons which is done with the intent to would
cause a reasonable person mental injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat would
be carried out;
(3) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(4) "Immediate family" means a spouse, parent, child, sibling,
or any person who regularly resides in the household or within the
prior six months regularly resided in the household.
(g)(h) Nothing in this section shall be construed to prevent
lawful assembly and petition for the redress of grievances,
including, but not limited to: Any labor dispute; demonstration at
the seat of federal, state, county or municipal government;
activities protected by the West Virginia constitution or the
United States Constitution or any statute of this state or the
United States.
(h)(i) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended shall have
as a condition of probation or suspension of sentence that he or
she participate in counseling or medical treatment as directed by
the court.
(i)(j) Upon conviction, the court may issue an order
restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining
order shall be based upon the seriousness of the violation before
the court, the probability of future violations and the safety of
the victim or his or her immediate family. The duration of the
restraining order may be longer than five years only in such cases
when a longer duration is necessary to protect the safety of the
victim or his or her immediate family.
(j)(k) It shall be a condition of bond for any person accused
of the offense described in this section that the person shall have
no contact, direct or indirect, verbal or physical, with the
alleged victim.
(k)(l) Nothing in this section shall be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative sentence.
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(NOTE: The purpose of this bill is to strengthen the law
relating to stalking. The proposed bill eliminates knowledge as an
element as it is cumulative; eliminates the enhanced second offense
misdemeanor penalty which is made a felony; and makes violation of
permanent restraining orders by stalking a felony.
It also creates three offenses:
(A) Willfully and repeatedly following and harassment;
(B) Willfully and repeatedly following and making a credible
threat; and
(C) Repeated harassing or threatening.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.)
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