West Virginia Statutory Rape Laws

West Virginia law makes it illegal for a person to have consensual sexual activity with a minor younger than 16, with a few exceptions (see below). Anyone who engages in such unlawful conduct can face charges for varying degrees of sexual assault or sexual abuse.

What Is the Age of Consent in West Virginia?

In West Virginia, the age of consent is 16. Anyone who engages in sexual activity with a child younger than 16 can face charges for statutory rape or a similar crime. For these age-based sexual offenses, it's immaterial whether the child consented to the activity or not. The child's age is the important fact, as it determines whether that person can legally consent to sexual activities.

West Virginia's Statutory Rape Laws

Statutory rape is prosecuted under West Virginia's sexual assault and abuse laws. Penalties depend on the ages of the defendant and victim and the sexual conduct that occurred (sexual intercourse, intrusion, or contact). Second and subsequent convictions can result in harsher penalties.

Sexual intercourse includes genital penetration, however slight, or oral or anal sex.

Sexual intrusion involves vaginal or anal penetration, however slight, of an object done to degrade or humiliate the victim or to gratify one's sexual desires.

Sexual contact means sexual touching, either directly or through clothing, without penetration, to gratify a person's sexual desires.

What Are the Penalties for Statutory Rape Offenses in West Virginia?

West Virginia divides statutory rape offenses into sexual assault (involving penetration or intrusion) and sexual abuse (involving contact).

Sexual Assault Offenses: Sexual Intercourse or Intrusion

Sexual assault is a felony.

First-degree sexual assault. A person who is 14 or older commits sexual assault in the first degree by engaging in sexual intercourse or sexual intrusion with a child who is younger than 12 years old. First-degree sexual assault constitutes a felony, punishable by 15 to 35 years of incarceration and a $1,000 to $10,000 fine. If the offender is 18 or older, the penalties increase to 25 to 100 years' imprisonment and a $5,000 to $25,000 fine.

Third-degree sexual assault occurs when a defendant who is 16 or older engages in sexual intercourse or sexual intrusion with a minor younger than 16 and at least 4 years younger than the defendant. This felony subjects a guilty defendant to one to five years of incarceration and a $10,000 fine.

Sexual Abuse Offenses: Sexual Contact

Sexual abuse may be a misdemeanor or felony.

First-degree sexual abuse involves a person who is 14 or older subjecting a minor to sexual contact when the minor is younger than 12 years old. Such unlawful conduct constitutes a felony, which carries penalties of one to five years' imprisonment and a $10,000 fine. If the offender is 18 or older, the penalties increase to 5 to 25 years in prison and a $1,000 to $5,000 fine.

Third-degree sexual abuse occurs when a person 16 or older subjects a minor younger than 16 years old to sexual contact, if the defendant was four or more years older. Third-degree sexual abuse constitutes a misdemeanor. A guilty defendant faces up to 90 days in jail and a $500 fine.

Does West Virginia Have a Romeo-and-Juliet Law?

Yes, with limitations. In many states, "Romeo and Juliet" exceptions—named for Shakespeare's teenage lovers—protect young people from harsh criminal charges for engaging in consensual sexual conduct with others close to their own age.

West Virginia's Romeo-and-Juliet exemption protects from prosecution certain minors who engage in consensual sexual activities. The exemption applies to consensual sexual conduct between a minor who was 15 or younger and a defendant 15 or younger when the age gap is less than 4 years, or when the minor was 11 or younger and the defendant was 13 or younger.

Possible Defenses to Statutory Rape Charges in West Virginia

Defendants charged with sex-related crimes of minors in West Virginia have several potential defenses available to them. At the same time, the law prohibits or limits the use of certain defenses.

Actual innocence. Defendants charged with statutory rape or a similar crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "The alleged conduct did not occur."

Consent. While many offenders attempt to use consent as a defense, this does not constitute a sufficient defense in statutory rape prosecutions involving a victim younger than 16.

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 claimed to be they were older than they really were, and that a reasonable person would have believed them. Unlike many states, West Virginia does recognize a mistake-of-age defense for certain statutory rape offenses. It is an affirmative defense to a charge of third-degree sexual assault or third-degree sexual abuse that the defendant reasonably believed the child to be 16 or older.

Marriage. 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. The marital defense is a remnant of the marital rape exemption.

Does a Statutory Rape Conviction Require Sex Offender Registration in West Virginia?

West Virginia's Sex Offender Registration Act requires, in addition to the applicable fines and incarceration time, adults convicted of certain sexual crimes (including statutory rape) to register as sex offenders. These crimes include all the offenses listed in this article. Depending on the offense, registration lasts for 10 years to life. This law does not apply to juveniles found delinquent of these sex crimes.

Penalties for failure to register depend on the required length of registration. Offenders required to register for 10 years who fail to do so are guilty of a misdemeanor and face up to one year in jail and a $250 to $10,000 fine for a first offense. Defendants with a lifetime registration requirement who fail to register subject themselves to a felony conviction, which carries one to five years of incarceration time. Subsequent failures can result in additional felony charges and harsher penalties.

Talk to a Lawyer

If you are facing a charge for statutory rape or a similar crime, contact an experienced criminal defense attorney in your area as soon as possible. A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses that might apply to the unique circumstances of your case. A knowledgeable attorney can also advise you on how the law will apply to your set of facts.

(W. Va. Code §§ 15-12-2, 15-12-4, 15-12-8, 61-8B-1, 61-8B-3, 61-8B-5, 61-8B-7, 61-8B-9, 61-8B-9a, 61-8B-9b, 61-8B-12 (2024).)