SB 54 — Establishing criminal penalties for abuse or neglect of incapacitated adults

SB54 HHFAT JUDAkers AM3-13Morgan #1Morgan3345 Delegate 3345 TheAkers Committee on the Judiciary moved to amend the bill by striking everythingout after the enactingtitle clauseand substituting therefor a new title, to read as follows:“A BILL to amend and insertingreenact in§61-2-29 lieuand thereof§61-2-29a of the followingCode language:  of ARTICLEWest 2.Virginia, 1931, as amended, relating to abuse, gross neglect, or neglect of incapacitated adults;

crimesadding againstdefinitions; the person.

§61-2-29.expanding the class of individuals who can be charged with crimes relating to abuse, gross neglect, or neglect of incapacitated adults to include all persons;

Abuseestablishing that caregivers who knowingly permit others to abuse, grossly neglect, or neglect ofan incapacitated adult;adult can be charged with certain crimes;

definitions; creating criminal offenses and establishing criminal penalties and fines;

penalties.removing the element of malice in felony charges of certain criminal offenses, and in offenses that result in injury, serious bodily injury, or death, or substantial risk of bodily injury, serious bodily injury, or death of an incapacitated adult;

(a) The following words and phrasesproviding havethat thecriminal meaningsoffenses ascribedresulting to them when used in thisinjury, sectiondeath, andor §61-2-29arisk and §61-2-29b of thisinjury code,or havedeath the meaning ascribed unless the context clearly indicates otherwise.(1) "Abuse" means the intentional infliction of bodily injury on an incapacitated adult.(2)adult "Bodilyas injury"a meansresult substantialof physicalabuse, pain,gross illness,neglect, neglect, or anypermitting impairmentanother of physical condition.(3) "Caregiver" means any person whoto hasdo assumed the legalsame, responsibilityare orseparate aand contractualdistinct obligationoffenses forto theother carestatutory ofoffenses.”;    AdoptedRejected  an incapacitated adult or has voluntarily assumed responsibility for the care of an incapacitated adult.

The term includes a facility operated by any public or private agency, organization, or institution which provides services to, and has assumed responsibility for, the care of an incapacitated adult."Gross neglect" or “grossly neglects” means reckless or intentional conduct, behavior, or inaction by a caregiver that evidences a clear disregard for the health, safety, or welfare of an incapacitated adult.(4) "Incapacitated adult" means any person 18 years of age or older who, by reason because of advanced age, physical, mental, or other infirmity, is unable to carry on out the daily activities of life necessary to sustaining life and reasonable health.(5) "Neglect" means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult.

and(6)"Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. (b) A caregiver Any person who neglects an incapacitated adult or any caregiver who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or confined in jail for not more than one year, or both fined and confined.(c) Any person who grossly neglects an incapacitated adult or any caregiver who knowingly permits another person to grossly neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or confined in jail for not less than 60 days nor more than one year, or both fined and confined.(c)(d) A caregiver Any person who abuses an incapacitated adult or any caregiver who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or confined in jail for not less than 90 days nor more than one year, or both fined and confined.(e) Any person who abuses, grossly neglects, or neglects an incapacitated adult and by that abuse, gross neglect, or neglect creates a substantial risk of serious bodily injury or death to the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000, or imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and imprisoned.(d) (f) A caregiver of an incapacitated adult Any person who intentionally and maliciously abuses, grossly neglects, or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than two years nor more than 10 years.(e) (g) A caregiver of an incapacitated adult Any person who intentionally and maliciously abuses, grossly neglects, or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than three years nor more than 15 years.(f) (h) Nothing in this section or nor in section twenty-nine-a of this article §61-2-29a of this code shall may be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.(g)(i) Nothing in this section or nor in section twenty-nine-a of this article  §61-2-29a of this code shall may be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to §16-30-1 et seq.

of this code.(j) An offense under this section is a separate and distinct offense in addition to any other offenses set forth in this code.  §61-2-29a.

Death of an incapacitated adult by a caregiver.

 (a) A caregiver Any person who intentionally and maliciously neglects an incapacitated adult causing death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than 15 years.(b) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally or maliciously neglect the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than 15 years.(c) Any person who grossly neglects an incapacitated adult causing death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than 25 years.(d) Any caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to grossly neglect the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than 25 years.(c) (e) A caregiver of an incapacitated adult Any person who intentionally and maliciously abuses an the incapacitated adult which causes the death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than 40 years.(d) (f) A caregiver of an incapacitated adult who causes the death of an the incapacitated adult by knowingly allowing any other person to intentionally and maliciously abuse an the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than 40 years.(e) (g) The provisions of this section do not apply to any person, caregiver or health care provider who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse to supply an incapacitated adult with necessary medical care when the medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the incapacitated adult is an adherent member.(h) An offense under this section is a separate and distinct offense in addition to any other offenses set forth in this code.   AdoptedRejected