West Virginia Foundation for Rape Information and Services

West Virginia Related Criminal Laws

 

This section includes West Virginia laws related to criminal offenses that may be sexual in nature, in addition to sexual assault and sexual abuse: filming of sexually explicit conduct of minors, child abuse, incest and nonconsensual disclosure of private intimate images. Also see the LAWS sections on West Virginia Human Trafficking Laws and Cyberstalking as they include crimes that may be sexual in nature.

 

 

Filming of Sexually Explicit Conduct of Minors

 

§61-8C-1. Definitions.

For the purposes of this article:

 

1. (a) "Minor" means any child under eighteen years of age.
2. (b) "Knowledge" means knowing or having reasonable cause to know which warrants further inspection or inquiry.
3. (c) "Sexually explicit conduct" includes any of the following, whether actually performed or simulated:
   1. 1. Genital to genital intercourse;
   2. 2. Fellatio;
   3. 3. Cunnilingus;
   4. 4. Anal intercourse;
   5. 5. Oral to anal intercourse;
   6. 6. Bestiality;
   7. 7. Masturbation;
   8. 8. Sadomasochistic abuse, including, but not limited to, flagellation, torture or bondage;
   9. 9. Excretory functions in a sexual context; or
   10. 10. Exhibition of the genitals, pubic or rectal areas of any person in a sexual context.
4. (d) "Person" means an individual, partnership, firm, association, corporation or other legal entity.

 

 

§61-8C-2. Use of minors in filming sexually explicit conduct prohibited; penalty.

1. (a) Any person who causes or knowingly permits, uses, persuades, induces, entices or coerces such minor to engage in or uses such minor to do or assist in any sexually explicit conduct shall be guilty of a felony when such person has knowledge that any such act is being photographed or filmed. Upon conviction thereof, such person shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.
3. (b) Any person who photographs or films such minor engaging in any sexually explicit conduct shall be guilty of a felony, and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.
5. (c) Any parent, legal guardian or person having custody and control of a minor, who photographs or films such minor in any sexually explicit conduct or causes or knowingly permits, uses, persuades, induces, entices or coerces such minor child to engage in or assist in any sexually explicit act shall be guilty of a felony when such person has knowledge that any such act may be photographed or filmed. Upon conviction thereof, such person shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.

 

 

§61-8C-3. Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct prohibited; penalty.

1. (a) Any person who, knowingly and willfully, sends or causes to be sent, or distributes, exhibits, possesses, electronically accesses with intent to view or displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony.
2. (b) Any person who violates the provisions of subsection (a) of this section when the conduct involves 50 or fewer images shall, upon conviction, be imprisoned in a state correctional facility for not more than 2 years or fined not more than $2,000 or both
3. (c) Any person who violates the provisions of subsection (a) of this section when the conduct involves more than 50 but fewer than 600 images shall, upon conviction, be imprisoned in a state correctional facility for not less than two nor more than ten years or fined not more than $5,000, or both
4. (d) Notwithstanding the provisions of subsections (b) and (c) of this section any person who violates the provisions of subsection (a) of this section when the conduct involves 600 or more images or depicts violence against a child or a child engaging in bestiality shall, upon conviction, be imprisoned in a state correctional facility for not less than 5 nor more than 15 years or fined not more than $25,000, or both.
5. (e) For purposes of this section, each video clip, movie or similar recording of 5 minutes or less shall constitute 75 images. A video clip, movie or similar recording of a duration longer than 5 minutes shall be deemed to constitute 75 images for every 2 minutes in length it exceeds 5 minutes.

 

 

§61-8C-3a. Prohibiting child erotica; penalties.

1. (a) Any person age eighteen or over who knowingly and intentionally produces, possesses, displays or distributes, in any form, any visual portrayals of minors who are partially clothed, where the visual portrayals are: (1) Unrelated to the sale of a commercially available legal product; and (2) used for purely prurient purposes, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year or fined not more than $1,000, or both confined and fined.
3. (b) As used in this section only:
4. 1. (1) "Purely prurient purposes" means for the specific purpose of sexual gratification or sexual arousal from viewing the visual portrayals prohibited by this section; and
   2. (2) "Commercially available" means for sale to the general public.
   3. (3) A "minor" is a child under the age of sixteen years, or a person who is sixteen years of age or older but less than eighteen years old and who is mentally defective or mentally incapacitated.

 

 

§61-8C-3b. Prohibiting juveniles from manufacturing, possessing and distributing nude or partially nude images of minors; creating exemptions; declaring a violation to be an act of juvenile delinquency; and providing for the punishment thereof.

1. (a) Any minor who intentionally possesses, creates, produces, distributes, presents, transmits, posts, exchanges, or otherwise disseminates a visual portrayal of another minor posing in an inappropriate sexual manner or who distributes, presents, transmits, posts, exchanges or otherwise disseminates a visual portrayal of himself or herself posing in an inappropriate sexual manner shall be guilty of an act of delinquency and upon adjudication disposition may be made by the circuit court pursuant to the provisions of article five, chapter forty-nine of this code.
3. (b) As used in this section only:
   1. (1) "Posing in an inappropriate sexual manner" means exhibition of a bare female breast, female or male genitalia, pubic or rectal areas of a minor for purposes of sexual titillation.
   2. (2) "Visual portrayal" means:
      1. (A) A photograph;
      2. (B) A motion picture;
      3. (C) A digital image;
      4. (D) A digital video recording; or
      5. (E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person that includes, but is not limited to, computers, cellphones, personal digital assistance and other digital storage or transmitting devices;
4. (c) It shall be an affirmative defense to an alleged violation of this section that a minor charged with possession of the prohibited visual depiction did neither solicit its receipt nor distribute, transmit or present it to another person by any means.
6. (d) Notwithstanding the provisions of article twelve, chapter fifteen of this code, an adjudication of delinquency under the provisions of this section shall not subject the minor to the requirements of said article and chapter.

 

Back to Top

 

§61-8C-4. Payment of treatment costs for minor.

In addition to any penalty provided under this article and any restitution which may be ordered by the court under article eleven-a of this chapter, the court may order any person convicted under the provisions of this article to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the minor resulting from the act or acts for which the person is convicted, whether or not the minor is considered to have sustained bodily injury.

 

Back to Top

 

§61-8C-5. Limits on interviews of children 11 years old or less; evidence.

1. (a) In any prosecution under this article, the court may provide by rule for reasonable limits on the number of interviews to which a victim who is eleven years old or less must submit for law enforcement or discovery purposes. The rule shall to the extent possible protect the mental and emotional health of the child from the psychological damage of repeated interrogation and at the same time preserve the rights of the public and the defendant.
2. (b) At any stage of the proceedings, in any prosecution under this article, the court may permit a child who is eleven years old or less to use anatomically correct dolls, mannequins or drawings to assist such child in testifying.

 

Back to Top

 

Child Abuse

The focus of this section is on West Virginia child abuse laws related to sexual abuse. Note that there are other state laws noted in the laws section of this website concerned with offenses involving sexual acts committed against children. Also see this section information on related WV legislation, in particular on mandatory reporting for child abuse

 

§61-8D-1. Definitions.

In this article, unless a different meaning plainly is required:

 

1. (1) "Abuse" means the infliction upon a minor of physical injury by other than accidental means.
2. (2) "Child" means any person under 18 years of age not otherwise emancipated by law.
3. (3) "Controlled substance" means controlled substance as that term is defined in subsection (d), section 101, article 1, chapter 60-a of this code.
4. (4) "Custodian" means a person over the age of 14 years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. "Custodian" shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.
5. (5) "Guardian" means a person who has care and custody of a child as the result of any contract, agreement or legal proceeding.
6. (6) "Gross neglect" means reckless or intentional conduct, behavior or inaction by a parent, guardian or custodian that evidences a clear disregard for a minor child's health, safety or welfare.
7. (7) “Neglect” means the unreasonable failure by a parent, guardian or custodian of a minor child to exercise a minimum degree of care to assure the minor child’s physical safety or health. , or any person voluntarily accepting a supervisory role towards a minor child to exercise a minimum degree of care to assure said minor child’s physical safety or health. For purposes of this article, the following do not constitute “neglect” by a parent, guardian or custodian:
   2. (A) Permitting a minor child to participate in athletic activities or other similar activities that if done properly are not inherently dangerous, regardless of whether that participation creates a risk of bodily injury;
   3. (B) Exercising discretion in choosing a lawful method of educating a minor child; or
   4. (C) Exercising discretion in making decisions regarding the nutrition and medical care provided to a minor child based upon religious conviction or reasonable personal belief.
8. (8) "Parent" means the biological father or mother of a child, or the adoptive mother or father of a child.
9. (9) "Sexual contact" means sexual contact as that term is defined in section 1, article 8-b, chapter 61 of this code.
10. (10) "Sexual exploitation" means an act whereby:
    1. (A) A parent, custodian, guardian or other person in a position of trust to a child, whether for financial gain or not, persuades, induces, entices or coerces the child to engage in sexually explicit conduct as that term is defined in section 1, article 8-c, chapter 61 of this code; or
    2. (B) A parent, guardian, custodian or other person in a position of trust in relation to a child persuades, induces, entices or coerces the child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian, person in a position of trust or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, custodian or other person in a position of trust knows such display is likely to be observed by others who would be affronted or alarmed.
11. (11) "Sexual intercourse" means sexual intercourse as that term is defined in section 1, article 8-b, chapter 61 of this code.
12. (12) "Sexual intrusion" means sexual intrusion as that term is defined in section 1, article 8-b, chapter 61 of this code.
13. (13) A "person in a position of trust in relation to a child" refers to any person who is acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities concerning a child or someone responsible for the general supervision of a child's welfare, or any person who by virtue of their occupation or position is charged with any duty or responsibility for the health, education, welfare, or supervision of the child.

 

Back to Top

 

§61-8D-3a. Female genital mutilation; penalties; definitions.

1. (a) Except as otherwise provided in subsection b of this section, any person who circumcises, excises or infibulates, in whole or in part, the labia majora, labia minora or clitoris of a female under the age of 18, or any parent, guardian or custodian of a female under the age of 18 who allows the circumcision, excision or infibulation, in whole or in part, of such female's labia majora, labia minora or clitoris, shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 2 nor more than 10 years and fined not less than $1,000 nor more than $5,000.
2. (b) A surgical procedure is not a violation of this section if the procedure:
   1. (1) Is necessary to preserve the health of the child on whom it is performed and is performed by a licensed medical professional authorized to practice medicine in this state; or
   2. (2) The procedure is performed on a child who is in labor or has just given birth and is performed for legitimate medical purposes connected with that labor or birth by a licensed medical professional authorized to practice medicine in this state.
3. (c) A person's belief that the conduct described in subsection a of this section: (i) Is required as a matter of custom, ritual or standard practice; or (ii) was consented to by the female on which the circumcision, excision or infibulation was performed shall not constitute a defense to criminal prosecution under subsection (a) of this section.

 

Back to Top

 

§61-8D-5. Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child; parent, guardian, custodian or person in a position of trust allowing sexual abuse to be inflicted upon a child; displaying of sex organs by a parent, guardian, or custodian; penalties.

1. (a) In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty years, or fined not less than $500 nor more than $5,000 dollars and imprisoned in the penitentiary not less than ten years nor more than twenty years.
2. (b) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is less than sixteen years of age, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than five years nor more than fifteen years, or fined not less than $1,000 nor more than $10,000 dollars and imprisoned in a correctional facility not less than five years nor more than fifteen years.
3. (c) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is sixteen years of age or older, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than one year nor more than five years.
4. (d) The provisions of this section shall not apply to a custodian or person in a position of trust whose age exceeds the age of the child by less than four years.

 

Back to Top

 

§61-8D-6. Sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a child engaged in sexually explicit conduct; penalty.

Any parent, guardian or custodian who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses, displays or transports, any material visually portraying a child under his or her care, custody or control engaged in any sexually explicit conduct, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than two (2) years, and fined not less than four hundred dollars nor more than four thousand dollars.

 

Back to Top

 

Incest

§61-8-12. Incest; penalty.

1. (a) For the purposes of this section:
   1. 1. "Aunt" means the sister of a person's mother or father;
   2. 2. "Brother" means the son of a person's mother or father;
   3. 3. "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
   4. 4. "Father" means a person's natural father, adoptive father or the husband of a person's mother;
   5. 5. "Granddaughter" means the daughter of a person's son or daughter;
   6. 6. "Grandfather" means the father of a person's father or mother;
   7. 7. "Grandmother" means the mother of a person's father or mother;
   8. 8. "Grandson" means the son of a person's son or daughter;
   9. 9. "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
   10. 10. "Niece" means the daughter of a person's brother or sister;
   11. 11. "Nephew" means the son of a person's brother or sister;
   12. 12. "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;
   13. 13. "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;
   14. 14. "Sister" means the daughter of a person's father or mother;
   15. 15. "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and 16. "Uncle" means the brother of a person's father or mother.
2. (b) A person is guilty of incest when such person engages in sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle or aunt.
3. (c) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than five years nor more than fifteen years, or fined not less than five hundred dollars nor more than five thousand dollars and imprisoned in the penitentiary not less than five years nor more than fifteen years.
4. (d) In addition to any penalty provided under this section and any restitution which may be ordered by the court under article eleven-a of this chapter, the court may order any person convicted under the provisions of this section where the victim is a minor to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the victim, the need for which results from the act or acts for which the person is convicted, whether or not the victim is considered to have sustained bodily injury.
5. (e) In any case where a person is convicted of an offense described herein against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of said article.

 

Back to Top

 

§61-8-13. Incest; limits on interviews of children eleven years old or less; evidence.

1. (a) In any prosecution under the provisions of section twelve of this article, the court may provide by rule for reasonable limits on the number of interviews to which a victim who is eleven years old or less must submit for law enforcement or discovery purposes. To the extent possible the rule shall protect the mental and emotional health of the child from the psychological damage of repeated interrogation and at the same time preserve the rights of the public and the defendant.
2. (b) At any stage of the proceedings, in any prosecution under this article, the court may permit a child who is eleven years old or less to use anatomically correct dolls, mannequins or drawings to assist such child in testifying.
3. (c) In any prosecution under this article in which the victim's lack of consent is based solely on the incapacity to consent because such victim was below a critical age, evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible. In any other prosecution under this article, evidence of specific instances of the victim's prior sexual conduct with the defendant shall be admissible on the issue of consent: Provided, That such evidence heard first out of the presence of the jury is found by the judge to be relevant.
4. (d) In any prosecution under this article evidence of specific instances of the victim's sexual conduct with persons other than the defendant, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible: Provided, That such evidence shall be admissible solely for the purpose of impeaching credibility, if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto. (e) In any prosecution under this article, neither age nor mental capacity of the victim shall preclude the victim from testifying.

 

Back to Top

 

Nonconsensual Disclosure of Private Intimate Images

This law makes it illegal to publicly disclose private intimate images produced via recording devices or processes to persons other than those whom the subject depicted understood would view the image.

 

§61-8-28a. Nonconsensual disclosure of private intimate images; definitions; and penalties

1. (a) As used in this section:
   1. (1) “Disclose” means to publish, publicly display, distribute, deliver, circulate or disseminate by any means, including, but not limited to, electronic transmission.
   2. (2) “Image” means a photograph, videotape, motion picture film, digital recording or any product of any mechanical or electronic recording process or device that can preserve, for later viewing, a visual image.
   3. (3) “Intimate parts” means a person’s genitalia, pubic area, anus or female post-pubescent breasts.
   4. (4) To “publicly disclose” means to disclose an image to one or more persons other than those persons whom the person depicted understood would view the image at the time it was captured.
2. (b) No person may knowingly and intentionally disclose, cause to be disclosed or threaten to disclose, with the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce, an image of another which shows the intimate parts of the depicted person or shows the depicted person engaged in sexually explicit conduct which was captured under circumstances where the person depicted had a reasonable expectation that the image would not be publicly disclosed.
3. (c)
   1. (1) A person convicted of a violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than 1 year, fined not less than $1,000 nor more than $5,000, or both confined and fined.
   2. (2) Notwithstanding the provisions of subdivision (1) of this subsection, a person convicted of a second or subsequent violation of subsection (b) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than 3 years, fined not less than $2,500 nor more than $10,000, or both imprisoned and fined.
4. (d) The provisions of this section do not apply to:
   1. (1) Images disclosed with the prior written consent of the person depicted;
   2. (2) Images depicting the person voluntarily exposing himself or herself in a public or commercial setting; or
   3. (3) Disclosures made through the reporting of illegal conduct or the lawful and common practices of law enforcement, criminal reporting, legal proceeding or medical treatment.
5. (e) Nothing in this section shall be construed to impose liability on the provider of an interactive computer service as defined by 47 U. S. C. §230(f)(2), an information service as defined by 47 U. S. C. §153(24), or telecommunications service as defined by 47 U. S. C. §153(53), for content provided by another person.

 

Back to Top

 

Note on Sexual Harassment

Sexual harassment is not considered a criminal offense in West Virginia, unless it involves elements of other crimes, such as sex offenses, physical assault and battery, stalking and harassment, etc. However, acts of sexual harassment may be considered civil legal violations (e.g., the Federal Title IX impacts schools receiving federal funding). For more information, go to the Sexual Harassment section of this website. Also see Title IX under Federal Legislation Affecting Colleges.

 

Back to Top

 

Note on Dating Violence

Dating violence is not as a criminal offense in West Virginia in and of itself. However, individual acts of violence committed by a date/dating partner may be considered criminal offenses under the State criminal code. For example, a dating violence situation might encompass one or more of the following acts:

 

• A variety of sex offenses
• Domestic violence offenses (domestic assault and battery)
• Physical assault
• Battery
• Stalking and harassment
• Intimidation
• Sex and labor trafficking

For more information, go to the Dating Violence section of this website.

 

Back to Top