Consent Laws
West Virginia
Last Updated: April 2023
| Defining Consent | Answer |
How is consent defined? |
Lack of consent results from forcible compulsion, 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. W. Va. Code Ann. § 61-8B-2(b). A person cannot consent to sexual intercourse if they are less than 16 years old, mentally defective, mentally incapacitated, physically helpless, or subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact. W. Va. Code Ann. § 61-8B-2(c). |
Does the definition require "freely given consent" or "affirmative consent"? |
No. |
| Capacity to Consent | Answer |
At what age is a person able to consent? |
16 years old. W. Va. Code Ann. §§ 61-8B-5, 61-8B-9. |
Does difference in age between the victim and actor impact the victim's ability to consent? |
Yes, a person is guilty of sexual assault in the first degree if a person that is 14 or older engages in sexual intercourse or sexual intrusion with another person who is younger than 12 years old and is not married to that person. W. Va. Code Ann. § 61-8B-3. A person would be guilty of sexual assault in the third degree if that person is 16 or older and 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 and is not married to the defendant. W. Va. Code Ann. § 61-8B-5. A person would be guilty of sexual abuse in the first degree if the person is 14 or older and subjects another person who is younger than 12 years old to sexual contact. W. Va. Code Ann. § 61-8B-7. 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. It is a defense to a prosecution for sexual abuse in the third degree that the defendant was less than 16 years old or defendant was less than 4 years older than the victim. W. Va. Code Ann. § 61-8B-9. |
Does elderly age impact the victim’s ability to consent? |
No. |
Does developmental disability and/or mental incapacity impact the victim’s ability to consent? |
Yes, a person who 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, or if the person suffers from a mental disease or defect which renders that person incapable of appraising the nature of his or her conduct, that person is incapable of giving consent for sexual intercourse or sexual intrusion. W. Va. Code Ann. §§ 61-8B-1(3) & (4), 61-8B-2(c). 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. W. Va. Code Ann. § 61-8B-8. |
Does physical disability, incapacity or helplessness impact the victim’s ability to consent? |
Yes, a person who is “physically helpless” cannot give consent. W. Va. Code Ann. § 61-8B-2(c). "Physically helpless" means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act. W. Va. Code Ann. §§ 61-8B-1. |
Does consciousness impact the victim’s ability to consent? |
Yes, a person who is unconscious is “physically helpless” and cannot give consent. W. Va. Code Ann. §§ 61-8B-2(c), 61-8B-1, 61-8B-4; 61-8B-7. |
Does intoxication impact the victim’s ability to consent? |
Yes. A person who is deemed mentally incapacitated cannot give consent. W. Va. Code Ann. §§ 61-8B-5, 61-8B-8. “Mentally incapacitated” means a person who 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 Ann. §§ 61-8B-1, 61-8B-2(c). |
Does the relationship between the victim and actor impact the victim’s ability to consent? |
Yes, a person is deemed incapable of consent when such person is subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact by a corrections or parole officer. W. Va. Code Ann. §§ 61-8B-2, 61-8B-10. |
| Defenses | Answer |
Is consent a defense to sex crimes? |
Yes, whether or not specifically stated, it is an element of every offense listed below that the sexual act was committed without the consent of the victim. W. Va. Code Ann. § 61-8B-2.
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Is voluntary intoxication a defense to sex crimes? |
No, but in some circumstances evidence of intoxication may negate a mental state that is a necessary element of the crime. State v. Keeton, 166 W.Va. 77, 272 S.E.2d 817 (1980). |