HB 5101 — The Joanna Phillips Domestic Violence Prevention Act

HB5101 HFATHFA McGeehan 3-14Morgan3-14 #1Morgan 3345 Delegate McGeehan moved to amend the bill by striking outeverything after the titleenacting clause and substitutinginserting thereforin alieu newthereof title,the tofollowing readlanguage:   asCHAPTER follows:H.61.

B.CRIMES AND THEIR PUNISHMENT.

5101ARTICLE --2. “A BILL to amend and reenact §61-2-9d, and  §61-2-28 of the Code of West Virginia, 1931, as amended, relating to clarifying the definition of "domestic violence";

andCRIMES creatingAGAINST andTHE increasingPERSON. criminal penalties for certain acts.

     AdoptedRejected §61-2-9d.

Strangulation;

suffocation and asphyxiation;

definitions;

penalties.

 (a) As used in this section:"Bodily injury" means substantial physical pain, illness or any impairment of physical condition;"Strangle" means knowingly and willfully restricting another person’s air intake or blood flow by the application of pressure on the neck or throat;"Suffocate" means knowingly and willfully restricting the normal breathing or circulation of blood by blocking the nose or mouth of another;

and"Asphyxiate" means knowingly and willfully restricting the normal breathing or circulation of blood by the application of pressure on the chest or torso.(b) Any person who strangles, suffocates or asphyxiates another without that person’s consent and thereby causes the other person bodily injury or loss of consciousness is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,500 or imprisoned in a state correctional facility not less than one year or more than five years, or both fined and imprisoned.(c) Notwithstanding subsection (b) of this section, any person who, without the consent of the other person, strangles, suffocates, or asphyxiates:

(1) A family or household member, as defined in §48-27-204 of this code;

or (2) any other person during the commission of conduct that constitutes, or could reasonably be charged as, a violation of §61-8-12 of this code, or any felony violation of the provisions of §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq.

of this code, and thereby causes bodily injury or loss of consciousness, is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than two nor more than 10 years.(d) Any person who violates the provisions of this section and has been previously convicted under this section, or under a law of another jurisdiction which requires proof of substantially similar elements, shall, upon conviction, be imprisoned in a state correctional facility for not less than three nor more than 15 years.

§61-2-28.

 Domestic violence — criminal acts.

(a) Domestic battery.

— Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member, or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve 12 months or fined not more than $500 $2,000, or both fined and confined.(b) Domestic assault.

— Any person who unlawfully attempts to commit a violent injury against his or her family or household member, or unlawfully commits an act that places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, 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 $100 $500, or both fined and confined.(c) Second offense.

— Domestic assault or domestic battery.

A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section or after having been convicted of a violation of subsection (b), or (c) section nine §61-2-9 (a) (b) or (c) of this code, of of this article §61-2-9d (b) or (c) of this code;

or of subsection (a) of section fourteen-g of this article §61-2-14g (a) of this code, where the victim was his or her current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter §61-11-22 of this code for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c) of section nine §61-2-9 (a) (b) or (c) of this code;

§61-2-9d (b) or (c) of this article code;

or subsection (a), section fourteen-g §61-2-14g (a) of this article code where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than sixty 60 days nor more than one year or fined not more than $1,000 $4,000, or both fined and confined.A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section or after having been convicted of a violation of subsection  (b), or (c), section nine §61-2-9 (a) (b) or (c) of this code;

61-2-9d (b) or (c) of this code of this article;

or subsection (a), section fourteen-g §61-2-14g (a) of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or having who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter §61-11-22 of this code for a violation of subsection (a) or (b) of this section;

or subsection  (b), or (c) section nine of this article §61-2-9 (a) (b) or (c) of this code;

§61-2-9d (b) or (c) of this code;

or subsection (a), section fourteen-g §61-2-14g(a) of this code of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense shall be confined in jail for not less than thirty 30 days nor more than six months or fined not more than $500 $1,000, or both fined and confined.(d) Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section or a third or subsequent violation of the provisions of section nine §61-2-9 of this code, §61-2-9d of this code, of this article or subsection (a), or section fourteen-g §61-2-14g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter §61-11-22 of this code for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine, §61-2-9 of this code, §61-2-9d of this code,, of this article or subsection (a), or section fourteen-g §61-2-14g of this article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten 20 years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one two nor more than five 10 years or fined not more than $2,500 $5,000, or both fined and confined.(e) As used in this section, "family or household member" means "family or household member" as defined in section two hundred four, article twenty-seven, chapter forty-eight §48-27-204 of this code.(f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article §61-2-9 (b) or (c) of this code for the same act.(h) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to section one thousand two, article twenty-seven, chapter forty-eight §48-27-1002 of this code.     AdoptedRejected