Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                    Enrolled Committee Substitute for Senate Bill 190
  By Senators Weld, Deeds, Trump, Woelfel, Barrett,
                Takubo, and Caputo [Passed March 8, 2024]
     Enr CS for SB 190
  AN ACT to amend and reenact §61-8B-1, §61-8B-3, and §61-8B-5 of the Code of West Virginia,
         1931, as amended, all relating to removing the definition of “marriage”; amending the
         definition of "sexual contact" to remove the exception where the victim is married to the
         actor; eliminating the marital exception to the offenses of first and third degree sexual
         assault; and removing duplicative language.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE                        8B.                      SEXUAL                       OFFENSES.
     §61-8B-1.                        Definition of                     terms.
         In this article, unless a different meaning plainly is required:
         (1) "Forcible compulsion" means:
         (A) Physical force that overcomes such earnest resistance that is reasonably expected
  under the circumstances;
         (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.
        For the purposes of this definition, "resistance" includes physical resistance or any clear
 communication of the victim's lack of consent.
        (2) "Mentally defective" means that a person suffers from a mental disease or defect which
 renders that person incapable of appraising the nature of his or her conduct.
        (3) "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 that person without his or her consent or as a result of any
 other act committed upon that person without his or her consent.
        (4) "Physically helpless" means that a person is unconscious or for any reason is physically
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     Enr CS for SB 190
 unable to communicate unwillingness to an act.
        (5) "Sexual contact" means 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.
        (6) "Sexual intercourse" means 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.
        (7) "Sexual intrusion" means 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.
        (8) "Bodily injury" means substantial physical pain, illness, or any impairment of physical
 condition.
        (9) "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.
        (10) "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.
        (11) "Forensic medical examination" means an examination provided to a possible victim
 of a violation of the provisions of this article by medical personnel qualified to gather evidence of
 the violation in a manner suitable for use in a court of law, to include: An examination for physical
 trauma; a determination of penetration or force; a patient interview; and the collection and
 evaluation of other evidence that is potentially relevant to the determination that a violation of the
 provisions of this article occurred and to the determination of the identity of the assailant.
     §61-8B-3. Sexual assault in the first degree.
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     Enr CS for SB 190
         (a) A person is guilty of sexual assault in the first degree when:
         (1) The person engages in sexual intercourse or sexual intrusion with another person and,
  in so doing:
         (A) Inflicts serious bodily injury upon anyone;
         (ii) (B) Employs a deadly weapon in the commission of the act.
         (2) 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.
         (b) Any person violating the provisions of this section is guilty of a felony and, upon
  conviction thereof, shall be fined not less than $1,000 nor more than $10,000 and imprisoned in a
 state correctional facility not less than 15 nor more than 35 years.
        (c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any
 person violating the provisions of subsection (a) of this section who is 18 years of age or older and
 whose victim is younger than 12 years of age, shall be imprisonment in a state correctional facility
 for not less than 25 nor more than 100 years and a fine of not less than $5,000 nor more than
 $25,000.
     §61-8B-5. Sexual assault in the third degree.
         (a) A person is guilty of sexual assault in the third degree when:
         (1) The person engages in sexual intercourse or sexual intrusion with another person who
  is mentally defective or mentally incapacitated; or
         (2) 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 four years younger
  than the defendant.
         (b) Any person violating the provisions of this section is guilty of a felony and, upon
  conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor
  more than five years, or fined not more than $10,000 and imprisoned in a state correctional facility
 not less than one year nor more than five years.
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Statutes affected: 
Introduced Version: 61-8B-1
Committee Substitute: 61-8B-1, 61-8B-3, 61-8B-5
Enrolled Committee Substitute: 61-8B-1, 61-8B-3, 61-8B-5