In West Virginia, it is illegal for an adult (someone 18 or older) to have sex with a minor who is younger than 16, 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 and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement laws.
In West Virginia, statutory rape includes consensual sex between a minor younger than 16 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 (oral, genital, or anal sex or penetration, however slight) between a victim younger than 12 years old and a defendant who was at least 14 years old at the time of the crime. The offense is a felony, and 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. (W.Va. Code Ann. §§ 61-8B-1, 61-8B-3.)
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). The offense is a felony, and penalties include a prison term of at least one year (and up to five years), a fine of up to $10,000, or both. (W.Va. Code Ann. §§ 61-8B-1, 61-8B-5 (2018).)
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. If the defendant was 18 or older, penalties increase to at least five years (and up to 25 years) in prison and a fine of at least $1,000 (and up to $5,000). (W.Va. Code Ann. §§ 61-8B-1, 61-8B-7 (2018).)
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). This offense is a misdemeanor, and penalties include a fine of up to $500, up to 90 days in jail, or both. (W.Va. Code Ann. §§ 61-8B-1, 61-8B-9 (2018).)
State law requires that, in addition to the applicable fines and prison time, people convicted of certain sexual crimes (including statutory rape) must register as sex offenders. (W.Va. Code Ann. § 15-12-2 (2018).)
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 one or more of the following exceptions apply.
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. (W.Va. Code Ann. §§ 61-8B-1, 61-8B-3, 61-8B-5, 61-8B-7, 61-8B-9 (2018).)
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. (W.Va. Code Ann. §§ 61-8B-3, 61-8B-5 (2018).) This defense is a remnant of the marital rape exemption.
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.
In most states, it is not a defense to a charge of statutory rape that the defendant mistakenly believed the child to be of age. In West Virginia, mistake of age is not a defense to a charge of first degree sexual assault or first degree sexual abuse. However, it is an affirmative defense to a charge of second degree sexual assault or second degree sexual abuse that the defendant reasonably believed the child to be age 16 or older. (W.Va. Code Ann. § 61-8B-12 (2018).)
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. The law can change at any time, 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 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.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 27, 2018