West Virginia Marital Rape Laws

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Just like rape between strangers or acquaintances, marital rape—rape that occurs between spouses—is illegal in West Virginia, and punished as a felony.

To learn more about assault laws in West Virginia, see Sexual Assault in West Virginia.

Statutory Rape Marital Exemption

West Virginia has a marital exemption for statutory rape. In contrast to a broader marital rape exemption—which would allow a husband to force sex on his wife against her will without legal consequences— this statutory exemption allows married people to have consensual sex even if their ages would prohibit it if they were not married.

Statutory rape includes offenses committed by a victim who was 16 years old or older, against a victim who is 15 years old or younger, and at least four years younger than the victim. And increased penalties apply to crimes committed against victims younger than 12 years old.

Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15 year old willingly has sex with Tony, her 23 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.

But if Jen and Tony are married and living in West Virginia, Tony need not fear criminal charges for having consensual sex with Jen. This is because West Virginia has a marital exemption to the West Virginia statutory rape laws.

However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.

(W.Va. Ann. Code § 61-8B-3 & 61-8B-5.)

Marital Rape

In West Virginia, marital rape occurs when one spouse (the defendant) compels the other spouse (the victim) to engage in sexual penetration against the victim’s will, and also includes circumstances when the victim is mentally incapable of giving consent to sex (such as being in a coma or having passed out from drug or alcohol use).

The punishment for rape is the same for spouses who rape as for other offenders, although it may be more difficult for the victim to prove that she didn’t consent to her husband than it would be to prove non-consent with a stranger.

Penalties

Rape, (also known as “sexual assault”) is broken into three categories, or “degrees,” which describe the severity of the crime and its associated punishments.

Sexual assault in the first degree includes circumstances when the defendant forces the victim to engage in sexual intercourse or sexual intrusion, and either uses a deadly weapon, or inflicts serious bodily injury while doing so.

Penalties include a prison term of at least 15 (and up to 35) years, a fine of at least $1,000 (and up to $10,000), or both.

Sexual assault in the second degree includes circumstances when the defendant forces the victim to engage in sexual intercourse or sexual intrusion (without serious bodily injury or the use of a deadly weapon), or when the victim was physically helpless. The victim is considered to have been physically helpless if she was unconscious or physically unable to communicate unwillingness to engage in the sexual act.

Penalties include a prison term of at least ten (and up to 25) years, a fine of at least $1,000 (and up to $10,000), or both.

Sexual assault in the third degree includes circumstances when the defendant forces a mentally defective victim to engage in sexual intercourse or sexual intrusion (without serious bodily injury or the use of a deadly weapon).

Penalties include a prison term of at least one year (and up to five years), a fine of up to $1,000, or both.

See a Lawyer

If you are facing a sexual assault charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses apply to charges of felony assault and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of charges or a reduction in penalties, such as less prison time, no prison time, probation, and lower fines. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer on your side will be essential.

Help for Rape Survivors

If you are a victim of rape or sexual abuse, contact the Rape, Abuse & Incest National Network (RAINN) National Sexual Assault Online Hotline for help and local resources.

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