West Virginia laws are very specific about sexual abuse and sexual assault. Sexual abuse occurs when a person subjects another person to sexual contact without their consent, and that lack of consent is due to physical force, threat or intimidation. In West Virginia, sexual assault includes sexual intercourse and sexual intrusion.
Sexual Intercourse—Any act between persons involving the penetration, however slight, of the female sex organ by the male sex organ or contact between the sex organs and the mouth or anus of another person.
Sexual Intrusion—Any act between persons involving the penetration, however slight, of the female sex organ or 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.
Forced Participation—Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or Threats or intimidation, expressed or implied, placing a person in fear of immediate death or bodily physical injury to herself/himself or another person, or fear that she/he or another person will be kidnapped; or Fear by a person under sixteen years of age caused by intimidation, expressed or implied; by another person who is at least 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.
Lack of Consent—Whether or not specifically stated, lack of consent is an element of every sexual assault. Lack of consent results from forced participation or the inability to consent. A person is considered incapable of consent when they are less than 16 years old, mentally handicapped, mentally incapacitated or physically helpless.
Forcible Fondling—The touching of the private body part of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of her/his youth or because of her/his temporary or permanent mental or physical incapacity.
Physically Helpless—A person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
Sexual Assault in the First Degree: §61-8B-3
The offender engages in sexual intercourse or sexual intrusion without the consent of the victim and during the attack inflicts serious bodily injury or uses a deadly weapon. The offender is 14 years old or more and engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less.
Type of Offense: Felony
Penalty: 15–35 years in the state correctional facility or $1,000–$10,000 fine and 15–35 years in the state penitentiary
Sexual Assault in the Second Degree: §61-8B-4
The offender engages in sexual intercourse or sexual intrusion without the victim's consent by using forced participation. The offender engages in sexual intercourse or sexual intrusion with another person who is physically helpless. This includes physically helpless victims, acquaintance rape, drug facilitated rape and victims who are intoxicated.
Type of Offense: Felony
Penalty: 10–25 years in the state penitentiary or $1,000–$10,000 fine and 10–25 years in the state penitentiary.
Sexual Assault in the Third Degree: §61-8B-5
The offender is 16 years old or more and engages in sexual intercourse or sexual intrusion with the victim who is less than 16 years old and who is at least four years younger than the offender. This also includes mentally handicapped or mentally incapacitated victims.
Type of Offense: Felony
Penalty: 1–5 years in the state penitentiary or up to $10,000 fine and 1-5 years in the state penitentiary.
First Degree Sexual Abuse: §61-8B-7
Sexual contact without consent. Sexual contact means touching or fondling under or outside of clothing. This can be by force or with a physically helpless victim. This applies if the offender is 14 years or more and the victim is 11years or less.
Type of Offense: Felony
Penalty: 1–5 years in the state penitentiary or up to $10,000 fine and 1–5 years in the state penitentiary.
Sexual Abuse by Parent, Guardian or Custodian: §61-8D-5 (a) This means sexual contact, sexual intrusion, sexual intercourse or sexual exploitation of a child under the care, custody or control of any parent, guardian or custodian.
Type of Offense: Felony
Penalty: 10–20 years in the state penitentiary or $500–$5,000 fine and 10–20 years in the state penitentiary
(b) This means any parent, guardian or custodian who knowingly procures another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with a child under the care, custody or control of such parent, guardian or custodian when such child is less than 16 years of age.
Type of Offense: Felony
Penalty: 5–15 years in the state penitentiary or $1,000–$10,000 fine and 5–15 years in the state penitentiary
(c) This means any parent, guardian or custodian who knowingly procures another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with a child under the care, custody or control of such parent, guardian or custodian when such child is sixteen years of age or older.
Type of Offense: Felony
Penalty: 1–5 years in the state penitentiary.
(d) Provisions of Code $61-8D-5 shall not apply to a custodian whose age exceed the age of the child by less than 4 years.
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