In West Virginia, it is illegal for an adult (someone 18 or older) to have sex with a minor who is younger than 18, even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require an assault, it is still rape. Of course, rape that does involve an assault is illegal in West Virginia (see West Virginia Sexual Battery Laws). Assaults of a sexual nature may also be charged under the state’s assault and battery laws (to learn more, see Aggravated Assault Laws in West Virginia) or the state’s child molestation and enticement laws. And for information about rape between spouses, see West Virginia Marital Rape Laws.
Statutory Rape and Penalties
In West Virginia, statutory rape includes consensual sex between a minor and a defendant who is at least four years older than the minor, and it can also include sexual contact (even without penetration) under certain circumstances described below.
Statutory rape is charged under the state’s sexual abuse and sexual assault laws, which are broken into categories, or “degrees.” These describe the severity of the crime and its associated punishments.
Sexual assault in the first degree includes intercourse between a victim younger than 12 years old and a defendant who was at least 14 years old (and four or more years older than the victim) at the time of the crime. Penalties include at least 35 (and up to 100) years in prison, a fine of at least $5,000 (and up to $25,000), or both.
Sexual assault in the third degree includes intercourse between a victim who was 15 years old or younger, and a defendant who was 16 years old or older (and at least four years older than the victim). Penalties include a prison term of at least one year (and up to five years), a fine of up to $1,000, or both.
Sexual abuse in the first degree includes sexual contact (touching, but not penetration) between a victim who was younger than 12 years old and a defendant who was at least 14 years old. Penalties include a fine of up to $10,000, at least one year (and up to five years) in prison, or both. Penalties increase when the defendant was 18 or older.
Sexual abuse in the third degree includes sexual contact between a victim who was younger than 16 years old and a defendant who was at least 16 years old (and at least four years older than the victim). Penalties include a fine of up to $500, up to 90 days in jail, or both.
(W.Va. Ann. Code § 61-8B-3, 61-8B-5, 61-8B-7, & 61-8B-9.)
Statutory Rape Marital Exemption
West Virginia has a marital exemption for statutory rape that allows married people to have consensual sex even if their ages would prohibit it if they were not married.
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.)
Defenses to a Statutory Rape Charge
Unlike normal rape charges, consent is not usually a defense to statutory rape. Statutory rape laws make minors legally incapable of giving consent to sexual activities. Therefore even if the minor “consented,” the sexual activity was nonetheless illegal and the defendant may be convicted of rape, unless the a “Romeo and Juliet” exception applies.
"Romeo and Juliet" exception
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In West Virginia, there is a Romeo and Juliet exemption for consensual sex between a minor who was 15 or younger when the defendant was also 15 or younger and fewer than four years older than the minor; or when the minor was 11 or younger and the defendant was 13 or younger.
Mistake of age
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.
See a Lawyer
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. 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 can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.
Help for Sexual Assault and Rape Survivors
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.