Sex Crimes: Definitions and Penalties
West Virginia

A person is guilty of sexual assault in the first degree when:

• The person engages in sexual intercourse or sexual intrusion with another person and in so doing inflicts serious bodily injury upon anyone or employs a deadly weapon in the commission of the act, or
• The person, being 14 years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than 12 years old.

Felony

In general:

• Imprisonment not less than 15 years.
• Maximum imprisonment not more than 35 years.
• Fine not less than $1,000.
• Fine not more than $10,000.
• Or both imprisonment and fine.

 If the actor is 18 years of age or older and the victim is younger than 12 years of age:

• Imprisonment not less than 25 years.
• Maximum imprisonment not more than 100 years.
• Fine not less than $5,000.
• Fine not more than $25,000.
• Or both imprisonment and fine.

 Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”

• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Sexual intercourse: Any act between persons 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: Any act between persons 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: Substantial physical pain, illness or any impairment of physical condition.
• Serious bodily injury: 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: 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.

• W. Va. Code §§ 61-8B-1; 61-8B-3

A person is guilty of sexual assault in the second degree when:

• Such person engages in sexual intercourse or sexual intrusion with another person without the person’s consent, and
• The lack of consent results from forcible compulsion, or
• Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.

Felony

• Imprisonment not less than 10 years.
• Maximum imprisonment not more than 25 years.
• Fine not less than $1,000.
• Fine not more than $10,000.
• Or both imprisonment and fine.

Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Forcible compulsion: Physical force that overcomes such earnest resistance that is reasonably expected under the circumstances, or Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or herself or another person or in fear that he or she or another person will be kidnapped, or fear by a person under 16 years of age caused by intimidation, expressed or implied, by another person who is at least 4 years older than the victim.
• Resistance: Includes physical resistance or any clear communication of the victim’s lack of consent.
• Physically helpless: That a person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
• Lack of consent: Results from (1) forcible compulsion; (2) incapacity to consent; or (3) 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.  A person is deemed incapable of consent when such person is (1) less than 16 years old, (2) mentally defective, (3) mentally incapacitated, (4) physically helpless, or (5) subject to incarceration, confinement or supervision by a state, county, or local governmental entity, when the actor is a person prohibited from having sexual intercourse or causing sexual contact due to their employment as a correctional officer, parole officer or probation officer.
• See Sexual Assault in the First Degree for additional definitions.

• W. Va. Code §§ § 61-8B-1; 61-8B-4; 61-8B-2

A person is guilty of sexual assault in the third degree when:

• The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated, or
• The 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.

Felony

• Imprisonment not less than 1 year.
• Imprisonment not more than 5 years.
• Fine not more than $10,000.
• Or both imprisonment and fine.

Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Sexual intercourse: Any act between persons 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: Any act between persons 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.
• Mentally defective: That a person suffers from a mental disease or defect which renders that person incapable of appraising the nature of his or her conduct.
• Mentally incapacitated: 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 that person without his or her consent or as a result of any other act committed upon that person without his or her consent.

• W. Va. Code §§ 61-8B-1; 61-8B-5

A person is guilty of sexual abuse in the first degree when the person:

• subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion,
• subjects another person to sexual contact who is physically helpless, or
• being 14 years old or more, subjects another person to sexual contact who is younger than 12 years old.

Felony

• Imprisonment not less than 1 year.
• Imprisonment not more than 5 years.
• Fine not more than $10,000.
• Or both imprisonment and fine.
• If person is 18 years of age  or older, and victim is less than 12 years of age,
• Imprisonment not less than 5 years
• Imprisonment not more than 25 years
• Fine not more than $1,000
• Fine not more than $5,000.

Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Sexual contact: Any intentional touching, either directly or through clothing, of the breasts, buttocks, anus or any part of the sex organs of another person, or intentional touching of any part of another person's body by the actor’s sex organs and the touching is done for the purpose of gratifying the sexual desire of either party.
• Forcible compulsion means: (a) physical force that overcomes such earnest resistance that is reasonably 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 herself or another person or in fear that he or she or another person will be kidnapped; or (c) fear by a person under 16 years of age caused by intimidation, expressed or implied, by another person who is at least four years older than the victim.
• Lack of consent: Results from (1) forcible compulsion; (2) incapacity to consent; or (3) 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.  A person is deemed incapable of consent when such person is (1) less than 16 years old, (2) mentally defective, (3) mentally incapacitated, (4) physically helpless, or (5) subject to incarceration, confinement or supervision by a state, county, or local governmental entity, when the actor is a person prohibited from having sexual intercourse or causing sexual contact due to their employment as a correctional officer, parole officer or probation officer.

• W. Va. Code §§ 61-8B-1; 61-8B-2; 61-8B-7

• 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.

Misdemeanor:

• County jail not more than 12 months
• Fine not more than $500.
• Or both imprisonment and fine.

Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Mentally defective: A person suffers from a mental disease or defect which renders that person incapable of appraising the nature of his or her conduct.
• Mentally incapacitated: 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 that person without his or her consent or as a result of any other act committed upon that person without his or her consent.

• W. Va. Code §§ 61-8B-1; 61-8B-8.

• 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.

Misdemeanor:

• County jail not more than 90 days
• Fine not more than $500.
• Or both imprisonment and fine.

In any prosecution under this section it is a defense that:

(1) The defendant was less than 16 years old; or

(2) The defendant was less than four years older than the victim.

Other mandatory sentencing may apply:

• W. Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

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• W. Va. Code § 61-8B-9.

• “Statutory rape” is commonly used to refer to sexual penetration that is illegal because it involves a youth. West Virginia has no specific statutory rape statute, but this concern is captured under W. Va. Code § 61-8B-5: 
• A person is guilty of sexual assault in the third degree when:
  • The 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.

Felony:

• Imprisonment not less than 1 year.
• Imprisonment not more than 5 years.
• Fine not more than $10,000.
• Or both imprisonment and fine.

Other mandatory sentencing may apply:

• Va. Code § 61-8B-9a, “Mandatory sentence for person committing certain sex offenses against children.”
• W. Va. Code § 61-8B-9b, “Enhanced penalties for subsequent offenses committed by those previously convicted of sexually violent offenses against children.”

The following definitions are relevant to this crime:

• Sexual intercourse: Any act between persons 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: Any act between persons 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.

• W. Va. Code §§ 61-8B-1; 61-8B-8.

• West Virginia does not have an anti-sodomy law on the books.
• Any state laws that outright prohibit sodomy are unconstitutional under Lawrence v. Texas, 539 U.S. 588 (2003).

• N/A

• N/A

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