Bill Text: WV SB697 | 2022 | Regular Session | Comm Sub

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Bill Title: Modifying and clarifying elements of kidnapping and unlawful restraint

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Engrossed - Dead) 2022-03-02 - To House Judiciary [SB697 Detail]

Download: West_Virginia-2022-SB697-Comm_Sub.html

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WEST virginia legislature

2022 regular session

Committee Substitute

for

Senate Bill 697

By Senators Trump, Woelfel, and Phillips

[Originating in the Committee on the Judiciary; reported on February 28, 2022]

 

 

A BILL to amend and reenact §61-2-14a and §61-2-14g of the Code of West Virginia, 1931, as amended, all relating generally to the offenses of kidnapping and unlawful restraint; clarifying the distinct elements of the separate offenses; removing redundant language; and making grammatical corrections.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14a. Kidnapping; penalty.

(a) Any person who unlawfully takes custody of, conceals, confines, transports, or restrains another person against his or her will by means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation, or enticement with the intent to:

(1) Hold another person for ransom, reward, or concession;

(2) Inflict bodily injury; or

(3) Terrorize the victim or another person; or

(4) Use another person as a shield or hostage,

(a) Any person who unlawfully:

(1) Takes custody of, conceals, confines, or restrains another person against his or her will by means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation, or enticement with the intent to:

(A) Hold another person for ransom, reward, or concession; or

(B) Uses another as a shield or hostage; or

(2) Transports another person against his or her  will in order obtain a ransom, reward, or  concession from any person or to terrorize him or her or another person, is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment by the Division of Corrections and Rehabilitation for life and, notwithstanding the provisions of §62-12-1 et seq. of this code, is not eligible for parole.

(b) The following exceptions apply to the penalty contained in subsection (a) of this section:

(1) A jury may, in its discretion, recommend mercy, and if the recommendation is added to its verdict, the person is eligible for parole in accordance with the provisions of §62-12-1 et seq. of this code;

(2) If the person pleads guilty, the court may, in its discretion, provide that the person is eligible for parole in accordance with the provisions of §62-12-1 et seq. of this code and, if the court so provides, the person is eligible for parole in accordance with the provisions of said article, in the same manner and with like effect as if the person had been found guilty by the verdict of a jury and the jury had recommended mercy;

(3) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but after ransom, money, or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be imprisonment by the Division of Corrections and Rehabilitation for a definite term of years not less than 20 nor more than 50; or

(4) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money, or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be imprisoned by the Division of Corrections and Rehabilitation for a definite term of years not less than 10 nor more than 30.

(c) For purposes of this section, “to use another as a hostage” means to seize or detain and threaten to kill or injure another in order to compel a third person or a governmental organization to do, or abstain from doing, any legal act as an explicit or implicit condition for the release of the person detained.

(d) Notwithstanding any other provision of this section, if a violation of this section is committed by a family member of a minor abducted or held hostage and he or she is not motivated by monetary purposes, but rather intends to conceal, take, remove the child, or refuse to return the child to his or her lawful guardian in the belief, mistaken or not, that it is in the child’s interest to do so, he or she is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than five years or fined not more than $1,000, or both imprisoned and fined.

(e) Notwithstanding any provision of this code to the contrary, where a law-enforcement agency of this state or a political subdivision thereof receives a complaint that a violation of the provisions of this section has occurred, the receiving law-enforcement agency shall notify any other law-enforcement agency with jurisdiction over the offense, including, but not limited to, the State Police and each agency so notified shall cooperate in the investigation immediately.

(f) It is a defense to a violation of subsection (d) of this section that the accused’s action was necessary to preserve the welfare of the minor child and the accused promptly reported his or her actions to a person with lawful custody of the minor, to law enforcement, or to the Child Protective Services Division of the Department of Health and Human Resources.

§61-2-14g. Unlawful restraint; penalties.

(a) Any person who, without legal authority intentionally restrains another with the intent that the other person not be allowed to leave the place of restraint and who does so by physical force or by overt or implied threat of violence or by actual physical restraint but without the intent to obtain any other concession or tangible item  or economic advantage as those terms are used in section fourteen-a of this article is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, fined not more than $1,000, or both.

(b) In any prosecution under this section, it is an affirmative defense that:

(1) The defendant acted reasonably and in good faith to protect the person from imminent physical danger; or

(2) The person restrained was a child less than 18 years old and that the actor was a parent or legal guardian, or a person acting under authority granted by a parent or legal guardian of such child, or by a teacher or other school personnel employee acting under authority granted by §18A-5-1 of this code, and that his or her sole purpose was to assume control of such child.

(c) As used in this section, to “restrain” means to restrict a person’s movement without his or her consent.

(d) This section shall not apply to acts done by a law-enforcement officer in the lawful exercise of his or her duties.