West Virginia Criminal Law: Regarding Sexual Assault Chapter 61, Crimes and their Punshishment, Article 8B, Sexual Offenses
61-8b-1. Definition of Terms In this article, unless a different meaning plainly is required:
"Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as might reasonably be expected, under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped; or
(c) Fear by a child under sixteen years of age caused by intimidation, expressed or implied, by another person four years older than the victim.
For the purpose of this definition "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
"Married" for the purpose of this article in addition to its legal meaning, includes persons living together as husband and wife regardless of the legal status of their relationship.
"Mentally defective" means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of his conduct.
"Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to such person without his or her consent or a result of any other act committed upon such person without his or her consent.
"Physically helpless" means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
"Sexual contact" means any intentional touching, either directly or through clothing, of the anus or any part of the sex organs of another person, or the breast of a female or intentional touching of any part of another person's body by the actor's sex organs, where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.
"Sexual intercourse" means any act between persons not married to each other involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons not married to each other involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
"Bodily injury" means substantial physical pain, illness or any impairment of physical condition.
"Serious bodily injury" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
"Deadly weapon" means any instrument, device or thing capable of inflicting death or serious bodily injury, and designed or specially adapted for use as a weapon, or possessed, carried or used as a weapon.
61-8b-2. Lack of Consent (a) Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
(b) Lack of consent results from:
Forced compulsion; or
Incapacity to consent; or
If the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.
(c) A person is deemed incapable of consent when such person is:
61-8b-3. Sexual Assault in the First Degree (a) A person is guilty of sexual assault in the first degree when:
Such person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
Such person, being 14 years old or more, engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 15 nor more than 35 years, or fined not less than $1,000.00 nor more than $10,000.00 and imprisoned in the penitentiary not less than 15 nor more than 35 years.
61-8b-4. Sexual Assault in the Third Degree a) A person is guilty of sexual assault in the third degree when:
Such person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
Such person, being 16 years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than 16 years old and who is at least 4 years younger than the defendant.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 1 year nor more than 5 years, or fined not more than $10,000.00 and imprisoned in the penitentiary not less than 1 year nor more than 5 years.
61-8b-5. Sexual Assault of a Spouse (a) For the purpose of this subsection:
"Sexual intercourse" means any act between persons married to each other involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of his or her spouse.
"Sexual intrusion" means any act between persons married to each other involving penetration, however slight, of the female sex organ or of the anus of either person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
(b) A person is guilty of sexual assault of a spouse when such person engages in sexual penetration or sexual intrusion with his or her spouse without the consent of the spouse; and
(i) The lack of consent results from forcible compulsion; or
(ii) Such person inflicts serious bodily injury upon anyone; or
(iii) Such person employs a deadly weapon in the commission of the offense.
(c) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 2 nor more than 10 years, or fined not more than $5,000.00 and confined in the penitentiary not less than 2 nor more than 10 years.
61-8b-6. Sexual Abuse in the First Degree (a) A person is guilty of sexual abuse in the first degree when:
Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or
Such person subjects another person to sexual contact who is physically helpless; or
Such person, being 14 years old or more, subjects another person to sexual contact who is 11 years old or less.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 1 year nor more than 5 years, or fined not more than $10,000.00 and imprisoned in the penitentiary not less than 1 year nor more than 5 years.
61-8b-7. Sexual Abuse in the Second Degree (a) A person is guilty of sexual abuse in the second degree when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.
(b) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than 12 months, or fined not more than $500.00 and confined in the county jail not more than 12 months.
61-8b-8. Sexual Abuse in the Second Degree a) A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter's consent, when such lack of consent is due to the victim's incapacity to consent by reason of being less than 16 years old.
(b) In any prosecution under this section it is a defense that:
The defendant was less than 16 years old; or
The defendant was less than 4 years older than the victim.
(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than 90 days, or fined not more than $500.00 and confined in the county jail not more than 90 days.
61-8b-9. Sexual Abuse in the Third Degree (a) A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter's consent, when such lack of consent is due to the victim's incapacity to consent by reason of being less than 16 years old.
(b) In any prosecution under this section it is a defense that:
The defendant was less than 16 years old; or
The defendant was less than 4 years older than the victim.
(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than 90 days, or fined not more than $500.00 and confined in the county jail not more than 90 days.
61-8b-11. Sexual Offenses Evidence (a) In any prosecution under this article in which the victim's lack of consent is based solely on the incapacity to consent because such victim was below a critical age, evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible. In any other prosecution under this article, evidence of specific instances of the victim's prior sexual conduct with the defendant shall be admissible on the issue of consent: Provided, That such evidence heard first out of the presence of the jury is found by the judge to be relevant.
(b) In any prosecution under this article evidence of specific instances of the victim's sexual conduct with persons other than the defendant, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible: Provided, That such evidence shall be admissible solely for the purpose of impeaching credibility, if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto.
(c) In any prosecution under this article, neither age nor mental capacity of the victim shall preclude the victim from testifying.
(d) At any stage of the proceedings, in any prosecution under this article, the court may permit a child who is 11 years old or less to use anatomically correct dolls, mannequins or drawings to assist such child in testifying.
61-8b-11a. Convictions for Offenses Against Child In any case where a person is convicted of an offense described in this article against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of Article 6 [49-6-1 et seq.], Chapter 49 of this code, and shall take such further action in accord with the provisions of said article.
61-8b-12. Same - Defense (a) In any prosecution under this article in which the victim's lack of consent is based solely on the incapacity to consent because such victim was below a critical age, mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent, unless the defendant is reckless in failing to know such facts or conditions.
(b) The affirmative defense provided in subsection (a) of this section shall not be available in any prosecution under subdivision (2), subsection (a), section three [61-8B-3 (a)(2)], and under subdivison (3), subsection (a), section seven [61-8B-7 (a)(3)] of this article.
61-8b-13. Payment of Treatment Cost of Victim In addition to any penalty provided under this article and any restitution, which may be ordered by the court under this article eleven-a [61-11A-1 et seq.] of this chapter, the court may order any person convicted under the provisions of this article to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the victim, the need for which results from the act or acts for which the defendant is convicted, whether or not the victim is considered to have sustained bodily injury.
61-8b-14. Limits on Interviews of Children 11 Years Old or Less In any prosecution under this article, the court may provide by rule for reasonable limits on the number of interviews to which a victim who is a child who is 11 years old or less must submit for law enforcement or discovery purposes. The rule shall to the extent possible protect the mental and emotional health of the child from the psychological damage of repeated interrogations while at the same time preserve the rights of the public and the defendant.
Chapter 49, Child Welfare, Article 1, Purposes Definitions 49-1-3. Definitions Relating to Abuse and Neglect
49-1-3 (1). Sexual Abuse Means: (A) As to a child who is less than 16 years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is 16 years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(j) "Sexual contact" means sexual contact as that term is defined in 61-8B-1 of this code.
(k) "Sexual exploitation" means an act whereby:
A parent, guardian or custodian, whether for financial gain or not, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in 61-8C-1 of this code.
A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guradian, custodian or third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(l) "Sexual intercourse" means sexual intercourse as that term is defined in 61-8B-1 of this code.
(m) "Sexual intrusion" means sexual intrusion as that term is defined in 61-8B-1 of this code
Site Designed and Maintained by Marshall University Forensic Science Center