HB 4600 — Making it a felony for a “Person in a Position of Trust” to assault, batter, or verbally abuse a child, or neglect to report abuse they witness

HB4600 SSFAT JUDTRUMP AM #1 3-103-12 Smith  78837883                                              TheSenator CommitteeTrump on the Judiciary moved to amend the bill by striking out everythingthe aftertitle theand enactingsubstituting clausetherefor anda insertingnew intitle, lieuto thereofread theas following:follows:

CHAPTEREng. 61.

CRIMESCom. AND THEIR PUNISHMENT.

ARTICLESub. 8D.

CHILDfor ABUSE.House Bill 4600— A BILL to repeal §61-8D-5a of the Code of West Virginia, 1931, as amended;

§61-8D-5a.and to amend said code by adding thereto a new article, designated §61-8F-1, §61-8F-2, § 61-8F-3, §61-8F-4, §61-8F-5, §61-8F-6, and §61-8F-7, all relating to maltreatment of disabled children by persons in a position of trust to them;

Verbaldefining abuseterms; of noncommunicative child;

penalties. creating misdemeanor and felony offenses and penalties for certain non-physical and physical acts against disabled children;

[Repealed.]creating ARTICLEcriminal 8F. penalty for  persons in a position of trust in relation to a disabled child failing to report abuse as a mandatory reporter;

SPECIALcreating PROTECTIONScriminal FORoffenses  DISABLEDfor CHILDRENobstructing ACTor discriminating against  a mandatory reporter of 2022.abuse;

Thisdirecting articlethe shallSecretary beof knownthe asDepartment Trenton,of Andrew,Health Adri,and OwenHuman Resources and Emma’sthe lawWest §61-8F-1.Virginia Department of Education to create a mandatory program for people working with disabled children and to study the viability and implementation of putting in  place a system that allows parents and guardians the ability to view their children remotely;

Findings.directing educational programs specific to crimes against disabled children for prosecutors and law enforcement;

Theestablishing Legislaturedates findsfor thatcompliance; disabled persons and particularly disabled children are often more vulnerable and in greater need of protection than the nondisabled.  Concomitant with greater vulnerability is the enhanced risk of injury and intimidation, particularly when the child is noncommunicative.

Basedrequiring upon these facts, the Legislaturestate hasdepartment determinedof thateducation it is appropriate that enhanced protections be put in place statutorily to provideestablish a frameworkdatabase of protectionspersons tounder improveactive disabledinvestigation children’sfor educationchild and,abuse qualityrequired ofto lifebe  asreported wellto  asby easecounty theboards concerns of theireducation; loved-ones and caregivers.

§61-8F-2and Definitions.establishing effective dates.

 As  used  in  thisAdopted article:Rejected

(1) “Disabled child” means a child with any physical, intellectual, developmental, communication, or psychological disability or impairment.

A disability includes , but is not limited to one that:

(A) Limits the child’s ability to recognize abuse, unlawful activity, or his or her rights to safety and protection, or that makes the child rely on others to recognize that he or she is being abused;

(B) Limits the child’s ability to recognize unlawful sexual abuse or misconduct;

(C) Causes the child to be dependent on others to assist with any activity of daily living or personal care;

(D) Limits the child’s ability to formulate or execute a response to abuse, to verbally or physically defend himself or herself, or to physically escape from an abusive environment;

or (E) Limits the child’s ability to disclose abuse.

(2) “Noncommunicative child” means a child who, due to physical or developmental disabilities, is unable to functionally articulate verbally, in writing, or through a recognized sign language, (3) “Person in a position of trust in relation to a disabled child” means any adult who is acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a disabled child or someone with supervisory responsibility for a disabled child’s welfare, or any person who by virtue of their occupation or position is charged with any duty or responsibility for the health, education, welfare, or supervision of a disabled child, (4) “Repeatedly” means on two or more occasions, (5) “Supervisory responsibility” means any situation where an adult has direct supervisory decision-making, oversight, instructive, academic, evaluative, or advisory responsibilities regarding the child.  Supervisory responsibility may occur in a residence, in or out of a school setting, institutional setting, and in curricular, co-curricular, or extra-curricular settings.

§61-8f-3.  Maltreatment of a disabled child;

penalties.

(a) Any person in a position of trust in relation to a disabled child, who has supervisory responsibility over a disabled child, and who repeatedly engages in conduct, verbal or otherwise toward the child in an insulting, demeaning, or threatening manner, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $2,500, or confined in jail not more than one year, or both fined and confined.

(b) The conduct prohibited by this section includes, but is not limited to, behavior of any type intended to humiliate, intimidate, shame, degrade, or cause emotional distress.

(c) Each instance of the conduct prohibited by subsection (a) of this section shall constitute a separate and distinct offense whether directed at one disabled child or multiple disabled children.

§61-8F-4 Battery and assault of a disabled child.

(a) Any person in a position of trust to a disabled child, with supervisory responsibility over the child who unlawfully and intentionally makes physical contact of an insulting and provoking nature to the person of the disabled child or unlawfully causes physical harm to the  disabled child is guilty of a felony, and upon conviction thereof, shall be fined not more than $1,000 and imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and imprisoned.

(b) Any person in a position of trust in relation to a disabled child, with supervisory responsibility over the child who unlawfully attempts to commit a violent injury to the person of the disabled child or unlawfully commits an act that places the disabled child in reasonable apprehension of immediately receiving a violent injury is guilty of a felony and upon conviction thereof shall be fined not more than $500 or imprisoned not less than one nor more than three years, or both fined and imprisoned.

§61-8F-5 Failure to report;

obstruction;

retaliation;

penalties.

(a) Any person in a position of trust in relation to a disabled child who is subject to the mandatory reporting requirements in §49-2-803 of this code who fails to make a required report regarding a disabled child is guilty of a misdemeanor, and upon conviction shall be confined in jail for not more than one year.

(b) Any person who willfully impedes or obstructs or attempts to impede or obstruct a person in a position of trust in regard to a disabled child from making a report required by §49-2-803 of this code regarding a disabled child is guilty of a felony, and upon conviction thereof be fined not more than $5,000 or imprisoned in a state correctional facility for not less than one nor more than three years, or both fined and imprisoned.

(c) Any person who discriminates or retaliates against a person in a position of trust in relation to a disabled child for making a report pursuant to § 49-2-803 of this code regarding a disabled child  is guilty of a felony and, upon conviction, shall be fined not more than $5,000 or imprisoned in a state correctional facility for not less than one year nor more than three years or both fined and imprisoned or both fined and imprisoned.

§61-8F-6 Specific directives to enhance the safety of disabled children.