West Virginia Rape and Sexual Assault Laws

Code Sections

First-degree sexual assault:

• Forcing another person to have sex through use of a deadly weapon or by inflicting serious bodily injury
• A person who is 14 years of age or older who has sex with a person under 12 years of age who is not their spouse

Second-degree sexual assault:

• Forcing another person to have sex without their consent
• Having sex with a person who is physically helpless and therefore incapable of consent
• A person 16 years of age or older who has sex with a minor under 16 years of age, who is not their spouse, and who is at least 4 years younger than the perpetrator

First-degree sexual abuse:

• Forcing another person to have sexual contact without their consent
• Having sexual contact with a person who is physically helpless and therefore incapable of consent
• A person who is 14 years of age or older who has sexual contact with a person under 12 years of age

Second-degree sexual abuse:

• Having sexual contact with a person who is mentally defective or mentally incapacitated and therefore unable to consent

Third-degree sexual abuse:

• Having sexual contact with a person under 16 years of age who by reason of their age, is incapable consent

First-degree sexual assault is a felony punishable by up to 35 years in prison and up to $10,000 in fines. If the perpetrator was 18 years of age or older and the victim was under 12 years of age, it is punishable by up to 100 years in prison and up to $25,000 in fines.

Second-degree sexual assault and first-degree sexual abuse are felonies punishable by up to 5 years in prison and up to $10,000 in fines. For first-degree sexual abuse, if the perpetrator was 18 years of age or older and the victim was under 12 years of age, the crime is punishable by up to 25 years in prison and up to $5,000 in fines.

Second-degree sexual abuse is a misdemeanor punishable by up to 1 year in prison and up to $500 in fines.

Third-degree sexual abuse is a misdemeanor punishable by up to 90 days in prison and up to $500 in fines.

The above penalties may be enhanced for those who were previously convicted of a prior sexually violent offense against children.

Defenses

For those crimes wherein prosecution is based upon the victim's incapacity to consent as a result of age, mental defect, or physical helplessness, it is a defense if the perpetrator had no knowledge of the above incapacity and was not reckless in failing to obtain knowledge of it.

It is a defense to the crime of third-degree sexual abuse if the perpetrator was also under 16 years of age or less than 4 years older than the victim.