WV Related Legislation – West Virginia Foundation for Rape Information and Services (WVFRIS)

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This section includes West Virginia legislation related to sexual offense cases and the prevention of sexual abuse that is not included in any other Laws section of the website.

Mandatory Reporting

Reporting: Vulnerable Adults

§9-6-1. Definitions.

As used in this article:

“Adult protective services agency” means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults;
“Adult protective services” means services provided to vulnerable adults as the secretary may specify and may include, but are not limited to, services such as:
- (A) Receiving reports of adult abuse, neglect, or exploitation;
- (B) Investigating the reports of abuse, neglect, or exploitation;
- (C) Case planning, monitoring, evaluation, and other case work and services; and
- (D) Providing, arranging for, or facilitating the provision of medical, social service, economic, legal, housing, law enforcement, or other protective, emergency, or support services;
“Abuse” means the infliction or threat of physical or psychological harm, including the use of undue influence or the imprisonment of any vulnerable adult or facility resident;
“Neglect” means the unreasonable failure by a caregiver to provide the care necessary to maintain the safety or health of a vulnerable adult or self-neglect by a vulnerable adult, including the use of undue influence by a caregiver to cause self-neglect;
“Vulnerable adult” means any person over the age of 18, or an emancipated minor, who by reason of physical or mental condition is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health and protection;
“Emergency” or “emergency situation” means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to a vulnerable adult;
“Financial exploitation” means the intentional misappropriation, misuse, or use of undue influence to cause the misuse of funds or assets of a vulnerable adult or facility resident, but does not apply to a transaction or disposition of funds or assets where a person made a good-faith effort to assist the vulnerable adult or facility resident with the management of his or her money or other things of value;
“Legal representative” means a person lawfully invested with the power, and charged with the duty, of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, durable power of attorney representative, springing power of attorney representative, financial power of attorney representative, medical power of attorney representative, trustee, or other duly appointed person;
“Nursing home” or “facility” means any institution, residence, intermediate care facility for individuals with an intellectual disability, care home, or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of §16-5C-1 et seq., §16-5D-1 et seq., §16-5E-1 et seq., or §16-5H-1 et seq. of this code;
“Regional long-term care ombudsman” means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the Bureau of Senior Services and meets the qualifications set forth in §16-5L-7 of this code;
“Facility resident” means an individual living in a nursing home or other facility, as that term is defined in subdivision (9) of this section;
“State long-term care ombudsman” means an individual who meets the qualifications of §16-5L-5 of this code and who is employed by the State Bureau of Senior Services to implement the State Long-term Care Ombudsman Program;
“Secretary” means the Secretary of the Department of Health and Human Resources;
“Caregiver” means an individual who is responsible for the care of a vulnerable adult or a facility resident, either voluntarily, by contract, by receipt of payment for care, or as a result of the operation of law, and means a family member or other individual who provides (on behalf of such individual or of a public or private agency, organization, or institution) compensated or uncompensated care to an adult with disabilities or a facility resident who needs supportive services in any setting; and
“Fiduciary” means a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of another person; to act in good faith and with fairness; and includes a trustee, a guardian, a conservator, an executor or an agent under a financial power of attorney.

§9-6-9. Mandatory reporting of incidences of abuse, neglect or emergency situation.

(a) If any medical, dental, or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, or any employee of any nursing home or other residential facility, has reasonable cause to believe that a vulnerable adult or facility resident is or has been neglected, abused, financially exploited or placed in an emergency situation, or if such person observes a vulnerable adult or facility resident being subjected to conditions that are likely to result in abuse, neglect, financial exploitation, or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of §9-6-11 of this code: Provided, That nothing in this article is intended to prevent individuals from reporting on their own behalf.
(b) In addition to those persons and officials specifically required to report situations involving suspected abuse, neglect, or financial exploitation of a vulnerable adult or facility resident, or the existence of an emergency situation, any other person may make such a report.
(c) The Department of Health and Human Resources shall develop and implement a procedure to notify any person mandated to report suspected abuse and neglect of a vulnerable adult or facility resident of whether an investigation into the reported suspected abuse, neglect, or financial exploitation has been initiated and when the investigation is completed
(d) Financial institutions and their employees, as defined by §31A-2A-1 of this code and as permitted by §31A-2A-4(13) of this code, others engaged in financially related activities, as defined by §31A-8C-1 of this code, caregivers, relatives, and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney, and to the Department of Health and Human Resources, Adult Protective Services Division, or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations

§9-6-11. Reporting procedures.

(a) A report of neglect, abuse, or financial exploitation of a vulnerable adult or facility resident, or of an emergency situation involving such an adult, shall be made immediately, and not more than 48 hours after suspecting abuse, neglect or financial exploitation, to the department’s adult protective services agency by a method established by the department. The department shall, upon receiving any such report, take such action as may be appropriate and shall maintain a record thereof. The department shall receive reports on its 24-hour, seven-day-a-week, toll-free number established to receive calls reporting cases of suspected or known adult abuse or neglect.
(b) A copy of any report of abuse, neglect, financial exploitation, or emergency situation shall be immediately filed with the following agencies:
1. The Department of Health and Human Resources;
2. The appropriate law-enforcement agency and the prosecuting attorney, if necessary; or
3. In case of a death, to the appropriate medical examiner or coroner’s office.
(c) If the person who is alleged to be abused, neglected, or financially exploited is a resident of a nursing home or other residential facility, a copy of the report shall also be filed with the state or regional long-term care ombudsman and the administrator of the nursing home or facility.
(d) Reports of known or suspected institutional abuse, neglect, or financial exploitation of a vulnerable adult or facility resident, or the existence of an emergency situation in an institution, nursing home, or other residential facility shall be made, received, and investigated in the same manner as other reports provided for in this article. In the case of a report regarding an institution, nursing home, or residential facility, the department shall immediately cause an investigation to be conducted.

§9-6-12. Reporting person’s immunity from liability.

(a) Any person who in good faith makes or causes to be made any report permitted or required by this article shall be immune from any civil or criminal liability which might otherwise arise solely out of making such report.
(b) No nursing home may discharge or in any manner discriminate against any resident, family member, legal representative or employee for the reason that he or she filed a complaint or participated in any matter or proceeding stemming from the provisions of this article.
(c) Violation of the prohibition contained in subsection b of this section by a nursing home or other residential facility constitutes grounds for the suspension or revocation of the license of the facility, if it operates under license pursuant to this code, or other appropriate measure.

§9-6-14. Failure to report; penalty.

Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100 or imprisoned in the county jail for not more than 10 days, or both fined and imprisoned.

Reporting: Children

§49-1-201. Definitions related, but not limited, to child abuse and neglect.

When used in this chapter, terms defined in this section have the meanings ascribed to them that relate to, but are not limited to, child abuse and neglect, except in those instances where a different meaning is provided or the context in which the word is used clearly indicates that a different meaning is intended.

“Abandonment” means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child;

“Abused child” means:

a child whose health or welfare is being harmed or threatened by:
- (A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home. Physical injury may include an injury to the child as a result of excessive corporal punishment;
- (B) Sexual abuse or sexual exploitation;
- (C) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section 14-h, article 2, chapter 61 of this code;
- (D) Domestic violence as defined in section 202, article 27, chapter 48 of this code; or
- (E) Human trafficking or attempted human trafficking, in violation of §61-14-2 of this code.
A child conceived as a result of sexual assault, as that term is defined in this section, or as a result of the violation of a criminal law of another jurisdiction which has the same essential elements: Provided, that no victim of sexual assault may be determined to be an abusive parent, as that term is defined in this section, based upon being a victim of sexual assault.

“Abusing parent” means a parent, guardian, or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.

“Battered parent” for the purposes of §49-4-601 et seq. of this code means a respondent parent, guardian, or other custodian who has been adjudicated by the court to have not condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by §48-27-202 of this code, which was perpetrated by the same person or persons determined to have abused or neglected the child or children.

“Child abuse and neglect” or “child abuse or neglect” means any act or omission that creates an abused child or a neglected child as those terms are defined in this section.

“Child abuse and neglect services” means social services which are directed toward:

(A) Protecting and promoting the welfare of children who are abused or neglected;
(B) Identifying, preventing and remedying conditions which cause child abuse and neglect;
(C) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(D) In cases where children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families, or some portion of the families;
(E) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate; and
(F) Assuring the adequate care of children or juveniles who have been placed in the custody of the department or third parties.

“Condition requiring emergency medical treatment” means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage; that condition includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness, and evidence of ingestion of significant amounts of a poisonous substance.

“Imminent danger to the physical well-being of the child” means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include an emergency situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:

(A) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;
(B) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;
(C) Nutritional deprivation;
(D) Abandonment by the parent, guardian or custodian;
(E) Inadequate treatment of serious illness or disease;
(F) Substantial emotional injury inflicted by a parent, guardian or custodian;
(G) Sale or attempted sale of the child by the parent, guardian or custodian;
(H) The parent, guardian or custodian’s abuse of alcohol or drugs or other controlled substance as defined in section 101, article 1, chapter 60-a of this code, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety; or
(I) Any other condition that threatens the health, life, or safety of any child in the home.

“Neglected child” means a child:

(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or
(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child’s parent or custodian;
(C) “Neglected child” does not mean a child whose education is conducted within the provisions of section 1, article 8, chapter 18 of this code. “Petitioner or co-petitioner” means the Department or any reputable person who files a child abuse or neglect petition pursuant to section 601, article 4, of this chapter. “Permanency plan” means the part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. “Respondent” means all parents, guardians, and custodians identified in the child abuse and neglect petition who are not petitioners or co-petitioners.

“Sexual abuse” means:

(A) Sexual intercourse, sexual intrusion, sexual contact, or conduct proscribed by §61-8c-3 of this code, which a parent, guardian, or custodian engages in, attempts to engage in, or knowingly procures another person to engage in, with a child notwithstanding the fact that for a child who is less than 16 years of age, the child may have willingly participated in that conduct or the child may have suffered no apparent physical, mental or emotional injury as a result of that conduct or, for a child 16 years of age or older, the child may have consented to that conduct or the child may have suffered no apparent physical injury or mental or emotional injury as a result of that conduct;
(B) Any conduct where a parent, guardian, or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian, or custodian, of the person making that display, or of the child, or for the purpose of affronting or alarming the child; or
(C) Any of the offenses proscribed in §61-8b-7, §61-8b-8, or §61-8b-9 of this code.

“Sexual assault” means any of the offenses proscribed in §61-8b-3, §61-8b-4, or §61-8b-5 of this code.

“Sexual contact” means sexual contact as that term is defined in §61-8b-1 of this code.

“Sexual exploitation” means an act where:

(A) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section 1, article 8-c, chapter 61 of this code; or
(B) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows that the display is likely to be observed by others who would be affronted or alarmed.
(C) A parent, guardian, or custodian knowingly maintains or makes available a child for the purpose of engaging the child in commercial sexual activity in violation of §61-14-5 of this code.

“Sexual intercourse” means sexual intercourse as that term is defined in section 1, article 8-b, chapter 61 of this code.

“Sexual intrusion” means sexual intrusion as that term is defined in section 1, article 8-b, chapter 61 of this code. “Serious physical abuse” means bodily injury which creates a substantial risk of death, causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.

§49-2-801. Purpose (of Reports of Children Suspected of Abuse)

It is the purpose of this article, through the complete reporting of child abuse and neglect: (1) to protect the best interests of the child, (2) to offer protective services in order to prevent any further harm to the child or any other children living in the home, (3) to stabilize the home environment, to preserve family life whenever possible, (4) to promote adult responsibility for protecting children and (5) to encourage cooperation among the states to prevent future incidents of child abuse and neglect and dealing with the problems of child abuse and neglect.

§49-2-803. Persons mandated to report suspected abuse and neglect; requirements.

(a) Any medical, dental, or mental health professional, Christian Science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical services personnel, peace officer or law-enforcement official, humane officer, member of the clergy, circuit court judge, family court judge, employee of the Division of Juvenile Services, magistrate, youth camp administrator or counselor, employee, coach or volunteer of an entity that provides organized activities for children, or commercial film or photographic print processor who has reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect shall immediately, and not more than 24 hours after suspecting this abuse or neglect, report the circumstances to the Department of Health and Human Resources. In any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report to the State Police and any law-enforcement agency having jurisdiction to investigate the complaint. Any person required to report under this article who is a member of the staff or volunteer of a public or private institution, school, entity that provides organized activities for children, facility, or agency shall also immediately notify the person in charge of the institution, school, entity that provides organized activities for children, facility, or agency, or a designated agent thereof, who may supplement the report or cause an additional report to be made: Provided, That notifying a person in charge, supervisor, or superior does not exempt a person from his or her mandate to report suspected abuse or neglect.
(b) County boards of education and private school administrators shall provide all employees with a written statement setting forth the requirements contained in this section and shall obtain and preserve a signed acknowledgment from school employees that they have received and understand the reporting requirement.
(c) Nothing in this article is intended to prevent individuals from reporting suspected abuse or neglect on their own behalf. In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if that person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.
(d) The provisions of this section are not applicable to persons under the age of 18.

§49-2-804. Notification of disposition of reports.

The Department of Health and Human Resources shall continue to develop, update and implement a procedure to notify any person mandated to report suspected child abuse and neglect pursuant to section 803 of this article, of whether an investigation into the reported suspected abuse or neglect has been initiated and when the investigation is completed.

§49-2-808. Photographs and X rays.

Any person required to report cases of children suspected of being abused and neglected may take or cause to be taken, at public expense, photographs of the areas of trauma visible on a child and, if medically indicated, cause to be performed radiological examinations of the child. Any photographs or X rays taken shall be sent to the appropriate child protective service as soon as possible.

§49-2-809. Reporting procedures.

(a) Reports of child abuse and neglect pursuant to this article shall be made immediately to the Department of Child Protective Services by a method established by the department: Provided, That if the method for reporting is web-based, the Department of Health and Human Resources shall maintain a system for addressing emergency situations that require immediate attention and shall be followed by a written report within 48 hours if so requested by the receiving agency. The state department shall establish and maintain a 24-hour, seven-day-a-week telephone number to receive calls reporting suspected or known child abuse or neglect.
(b) A copy of any report of serious physical abuse, sexual abuse, or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney, or the coroner or medical examiner’s office. All reports under this article are confidential. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.

§49-2-810. Immunity from liability.

Any person, official, or institution participating in good faith in any act permitted or required by this article is immune from any civil or criminal liability that otherwise might result by reason of those actions, including individuals making good faith reports of suspected or known instances of child abuse or neglect, or who otherwise provide information or assistance, including medical evaluations or consultations, in connection with a report, investigation or legal intervention pursuant to a good faith report of child abuse or neglect.

§49-2-811. Abrogation of privileged communications; exception.

The privileged quality of communications between husband and wife and between any professional person and his or her patient or his or her client, except that between attorney and client, is hereby abrogated in situations involving suspected or known child abuse or neglect.

§49-2-812. Failure to report; penalty.

(a) Any person, official or institution required by this article to report a case involving a child known or suspected to be abused or neglected, or required by section 809 of this article to forward a copy of a report of serious injury, who knowingly fails to do so or knowingly prevents another person acting reasonably from doing so, is guilty of a misdemeanor and, upon conviction, shall be confined in jail not more than 90 days or fined not more than $5,000, or both fined and confined.
(b) Any person, official or institution required by this article to report a case involving a child known or suspected to be sexually assaulted or sexually abused, or student known or suspected to have been a victim of any non-consensual sexual contact, sexual intercourse or sexual intrusion on school premises, who knowingly fails to do so or knowingly prevents another person acting reasonably from doing so, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than 6 months or fined not more than $10,000, or both.

Sexual Assault Victims’ Bill of Rights

§61-11A-9. Sexual Assault Victims’ Bill of Rights.

(a) In addition to those rights afforded victims of crime by other provisions of this code, a sexual assault victim has the following rights:

(1) The right to a personal representative of the victim’s choice to accompany him or her to a hospital or other health care facility and to attend proceedings concerning the alleged assault, including police interviews and court proceedings: Provided, That nothing in this subsection shall be construed to violate established forensic interview protocols;

(2) The right to receive a forensic medical examination consistent with the provisions of §61-8B-1(12) of this code conducted by a qualified medical provider in accordance with best practices, taking into consideration the age of the victim and circumstances of the offense;

(3) The right to have a sexual assault evidence collection kit tested and preserved by
the investigating law-enforcement agency;

(4) The right to be informed by the investigating law-enforcement agency of any results of the forensic medical examination, if such disclosure would not impede or compromise an ongoing investigation;

(5) The right to be informed in writing of the policies governing the forensic medical
examination and preservation of evidence obtained from the examination;

(6) The right to receive, upon his or her written request, notification by United States
mail, restricted delivery, to his or her last known address, from the custodian of the
evidence obtained from the forensic medical examination no fewer than 60 days prior to the date of the intended destruction or disposal of the evidence: Provided, That notice to a victim which meets the requirements of this subdivision, whether received by the addressee or not, meets all notice requirements imposed by this section;

(7) The right, upon his or her written request, to have the evidence obtained from the forensic medical examination preserved for an additional period not to exceed 10 years; and

(8) The right to be informed of the rights afforded a victim pursuant to this section.

(b) As used in this section, “sexual assault” means any sexual act proscribed by §61-8-1 et seq., §61-8B-1 et seq., and §61-8D-1 et seq. of this code.

Forensic Medical Exam

Payment For Costs

§61-8B-16. Payment for costs of forensic medical examination.

(a) When any person alleges that he or she has been the victim of an offense proscribed by this article, the West Virginia prosecuting attorneys institute shall pay to a licensed medical facility from the forensic medical examination fund the cost of the forensic medical examination for the alleged victim on the following conditions and in the following manner:
1. The payment shall cover all reasonable, customary and usual costs of the forensic medical examination;
2. The costs of additional non-forensic procedures performed by the licensed medical facility, including, but not limited to, prophylactic treatment, treatment of injuries, testing for pregnancy and testing for sexually transmitted diseases, may not be paid from the fund: Provided, that nothing in this section shall be construed to prohibit a licensed medical facility from seeking payment for services referred to in this subdivision from the alleged victim or his or her insurer, if any;
3. The forensic medical examination must have been conducted within a reasonable time of the alleged violation;
4. The licensed medical facility must apply for payment of the costs of a forensic medical examination from the fund within a reasonable time of the examination;
5. The licensed medical facility shall certify that the forensic medical examination was performed and may submit a statement of charges to the West Virginia Prosecuting Attorneys Institute for payment from the fund.
(b) No licensed medical facility may collect the costs of a forensic medical examination from the alleged victim of a violation of this article or from the alleged victim’s insurance coverage, if any.
(c) Nothing in this section shall be construed to require an alleged victim of sexual assault to participate in the criminal justice system or to cooperate with law enforcement in order to be provided a forensic medical examination pursuant to the provisions of this section.

(Learn more: Go to the section in this website, Forensic Medical Exam.

SAFE Commission

§15-9B-1. Sexual Assault Forensic Examination (SAFE) Commission.

(a) The Sexual Assault Forensic Examination Commission is continued as a subcommittee of the Governor’s Committee on Crime, Delinquency and Correction. The purpose of the commission is to establish, manage, and monitor a statewide system to facilitate the timely and efficient collection, submission, testing, retention, tracking, and disposition of forensic evidence in sexual assault cases. As used in this article, the word “commission” means the Sexual Assault Forensic Examination Commission.
(b) Membership on the commission shall consist of the following:
1. A representative chosen from the membership of the West Virginia Prosecuting Attorneys Association who shall be chosen by the president of that organization;
2. A representative chosen from the membership of the West Virginia Association of Counties who shall be chosen by the executive director of that organization;
3. The Commissioner of the Bureau for Public Health, or his or her designee;
4. A representative from the State Police Forensic Laboratory who shall be chosen by the Superintendent of the West Virginia State Police;
5. A representative from the membership of the West Virginia Child Advocacy Network;
6. The President of the West Virginia Hospital Association, or his or her designee;
7. A representative from the membership of the West Virginia Foundation for Rape and Information Services who shall be chosen by the state coordinator of that organization;
8. A representative of the West Virginia University Forensic and Investigative Sciences Program who shall be chosen by the director of that program; and
9. A representative of the Marshall University Forensic Science Center who shall be chosen by the director of that organization.
(c) If any of the representative organizations listed in subsection (b) cease to exist, the director of the Division of Justice and Community Services may select a person from a similar organization.
(d) The director shall appoint the following additional members of the commission:
1. An emergency room physician licensed to practice and practicing medicine in this state;
2. A victim advocate from a rape crisis center employed in this state;
3. A sexual assault nurse examiner who is engaged in an active practice within this state;
4. A law-enforcement officer in this state with experience in sexual assault investigations;
5. A health care provider with pediatric and child abuse expertise licensed in this state; and
6. A director of a child advocacy center licensed and operating in this state.
(e) The commission shall establish mandatory statewide protocols for conducting sexual assault forensic examinations, including designating locations and providers to perform forensic examinations, establishing minimum qualifications and procedures for performing forensic examinations, and establishing protocols to assure the proper collection of evidence.

§15-9B-4(a) Submission, testing, and retention of sexual assault forensic examination kits

The Sexual Assault Forensic Examination Commission created by §15-9B-1 of this code shall establish a subgroup of persons with subject matter expertise to establish best-practice protocols for the submission, testing, retention, and disposition of sexual assault forensic examination kits collected by health care providers. The commission shall propose rules for legislative approval, in accordance with §29A-3-1 et seq. of this code, detailing best-practice protocols. Upon approval of the legislative rules, local sexual assault forensic examination boards shall follow the rules.

(l) Nothing in this section shall be construed as limiting a state or local law-enforcement agency’s discretion concerning the conditions under which biological evidence is retained, preserved, or transferred among different entities if the evidence is retained in a condition that is suitable for DNA testing.

(b) Rules promulgated pursuant to §15-9B-4(a) of this code shall include:

Time frames for submission of sexual assault forensic examination kits in the possession of law enforcement; and

Protocols for storage of DNA samples and sexual assault forensic examination kits.

(c) The commission may promulgate emergency rules to implement this section, provided that no emergency rule may permit the destruction of any DNA evidence.

(d) Upon collection, a sexual assault forensic examination kit shall be submitted for testing by the health care provider to the West Virginia State Police Forensic Laboratory within 30 days of collection or as soon thereafter as practicable. All packaging kits for transmittal and transmittal protocols shall be designed to meet applicable standards for maintaining the efficacy of the sample and chain of custody.

(e) No sexual assault forensic examination kit need be tested where the alleged victim has not consented to the testing, requests that the kit not be tested, where he or she recants as to the allegation of a sexual offense, or the allegation that a sexual offense occurred is determined to be unfounded. If the alleged victim does not consent to law enforcement involvement, the kit shall be designated a nonreported kit and transmitted to the Marshall University Forensic Science Center.

(f) The Commission shall, in cooperation with the West Virginia State Police, develop protocols for storage of previously tested materials to be made available for secondary testing upon a court order to do so.

(g) Biological evidence obtained through tests of a sexual assault forensic examination kit shall not be destroyed:

During the time period of incarceration of a person whose DNA was identified by the use of the biological evidence, or while the person remains under continued supervision, whichever is later in time; or;

For as long as the offense from which the biological evidence is obtained remains unresolved;

(h) Notwithstanding any provision of this code, or any rule or policy promulgated thereunder, upon completion of the processing and testing set forth in subsection (d) of this section, the sexual assault forensic examination kit shall be transmitted to the appropriate investigating local or state law-enforcement agency which shall retain all identified biological material that is secured in connection with any sexual offense or attempted sexual offense for the periods set forth in subsection (g) of this section.

(i) After processing and testing of a sexual assault forensic examination kit, the West Virginia State Police Laboratory shall transmit the sexual assault forensic examination kit to the appropriate investigating state or local law-enforcement agency through any reasonable means sufficient to establish the proper chain of custody, including, but not limited to, use of the United States Postal Service or hand delivery by appropriate personnel or a law-enforcement officer. The appropriate investigating state or local law-enforcement agency shall preserve the sexual assault forensic examination kit for the period of time prescribed in subsection (g) of this section in a condition where any biological evidence is suitable for DNA testing. The lack of timely submission, or the inadvertent loss or destruction of a sexual assault forensic examination kit, standing alone, shall not constitute a bar to the prosecution of a sexual offense.

(j) Sexual assault forensic examination kits retained pursuant to this section shall be made available for DNA testing pursuant to §15-2B-7 of this code or pursuant to an appropriate order of a circuit court of competent jurisdiction for secondary testing.

(k) The appropriate investigating state or local law-enforcement agency responsible for retaining the sexual assault forensic examination kit shall obtain approval from the circuit court of competent jurisdiction for the county in which the crime occurred before disposal of any biological evidence. Before the disposal of any sexual assault forensic examination kit, reasonable efforts shall be made to provide written notice to the victim by the prosecuting attorney of the county in which the crime occurred.

Prevention of Child Sexual Abuse

Task Force

§49-2-814. Task Force on Prevention of Sexual Abuse of Children.

(a) This section may be referred to as “Erin Merryn’s Law.”

(b) The Task Force on Prevention of Sexual Abuse of Children is established. The task force consists of the following members:

The Chair of the West Virginia Senate Committee on Health and Human Resources, or his or her designee;
The Chair of the House of Delegates Committee on Health and Human Resources, or his or her designee;
The Chair of the West Virginia Senate Committee on Education, or his or her designee;
The Chair of the House of Delegates Committee on Education, or his or her designee;
One citizen member appointed by the President of the Senate;
One citizen member appointed by the Speaker of the House of Delegates;
One citizen member, who is a survivor of child sexual abuse, appointed by the Governor;
The President of the State Board of Education, or his or her designee;
The State Superintendent of Schools, or his or her designee;
The Secretary of the Department of Health and Human Resources, or his or her designee;
The Director of the Prosecuting Attorney’s Institute, or his or her designee;
One representative of each statewide professional teachers’ organization, each selected by the leader of his or her respective organization;
One representative of the statewide school service personnel organization, selected by the leader of the organization;
One representative of the statewide school principals’ organization, appointed by the leader of the organization;
One representative of the statewide professional social workers’ organization, appointed by the leader of the organization;
One representative of a teacher preparation program of a regionally accredited institution of higher education in the state, appointed by the Chancellor of the Higher Education Policy Commission;
The Chief Executive Officer of the Center for Professional Development, or his or her designee;
The Director of Prevent Child Abuse West Virginia, or his or her designee;
The Director of the West Virginia Child Advocacy Network, or his or her designee;
The Director of the West Virginia Coalition Against Domestic Violence, or his or her designee;
The Director of the West Virginia Foundation for Rape Information and Services, or his or her designee;
The Administrative Director of the West Virginia Supreme Court of Appeals, or his or her designee;
The Executive Director of the West Virginia Sheriffs’ Association, or his or her designee;
One representative of an organization representing law enforcement, appointed by the Superintendent of the West Virginia State Police; and
One practicing school counselor appointed by the leader of the West Virginia School Counselors Association.

(c) To the extent practicable, members of the task force shall be individuals actively involved in the fields of child abuse and neglect prevention and child welfare.

(d) At the joint call of the House of Delegates and Senate Education Committee Chairs, the task force shall convene its first meeting and by majority vote of members present elect presiding officers. Subsequent meetings shall be at the call of the presiding officer.

(e) The task force shall make recommendations for decreasing incidence of sexual abuse of children in West Virginia. In making those recommendations, the task force shall:

Gather information regarding sexual abuse of children throughout the state;
Receive related reports and testimony from individuals, state and local agencies, community-based organizations, and other public and private organizations;
Create goals for state education policy that would prevent sexual abuse of children;
Create goals for other areas of state policy that would prevent sexual abuse of children; and
Submit a report with its recommendations to the Governor and the Legislature.

(f) The recommendations may include proposals for specific statutory changes and methods to foster cooperation among state agencies and between the state and local governments. The task force shall consult with employees of the Bureau for Children and Family Services, the Division of Justice and Community Services, the West Virginia State Police, the State Board of Education, and any other state agency or department

(g) Task force members serve without compensation and do not receive expense reimbursement.

Education and Prevention

§18-2-41. Education and Prevention of the Sexual Abuse of Children.

(a) Education of children in grades K-12 — Beginning July 1, 2019, children in grades K-12 shall receive body age-appropriate safety information at least once per academic school year, with a preference for four times per academic year. To facilitate this process and develop resources, the state board shall propose a legislative rule for promulgation, in accordance with §29A-3b-1 et seq. of this code, by December 31, 2018. The rule shall provide for at least the following:
1. Developmentally appropriate education and resources;
2. Social media usage and content;
3. Implementation of best practices;
4. Differing county and school sizes, demographics, etc. relating to implementation strategies;
5. Strategies for dealing with disclosures after student education;
6. Rules informed by family voice;
7. Offender dynamics;
8. Child-on-child scenarios;
9. Rules on development of supplementary materials, including posting of the child abuse hotline, to embed into the school climate;
10. Protocols for local crisis response in conjunction with §18-9F-9 of this code.
(b) Training of public school employees. The state board shall propose by December 31, 2018 a legislative rule for promulgation in accordance with §29A-3b-1 et seq. of this code, and if necessary may promulgate an emergency rule in accordance with said article, for the establishment of standards for training requirements of all public school employees focused on developing skills, knowledge, and capabilities related to preventing child sexual abuse and recognizing and responding to suspected abuse and neglect. The rule shall provide for at least the following:
1. This required training shall include comprehensive instruction and information to better equip schools and their employees, including how to:
  - (A) Recognize sexually offending behaviors in adults, questionable behaviors such as boundary violations, and signs in adults that might indicate they pose a sexual risk to children;
  - (B) Recognize, appropriately respond to, and prevent sexually inappropriate, coercive, or abusive behaviors among children and youth served by schools;
  - (C) Recognize behaviors and verbal cues that might indicate a child or youth has been a victim of abuse or neglect;
  - (D) Support the healthy development of children and youth and the building of protective factors to mitigate against their sexual victimization by adults or peers;
  - (E) Recognize and appropriately respond to student infatuations and flirtations with adults in schools;
  - (F) Recognize appropriate and inappropriate social media usage by adults and children;
  - (G) Provide consistent and standard protocols for responding to disclosures of sexual abuse or reports of boundary-violating behaviors by adults or children in a supportive and appropriate manner which meet mandated reporting requirements;
  - (H) Provide adequate understanding of the age-appropriate, comprehensive, evidence-informed child sexual abuse prevention education which will be offered to their students; and
  - (I) Reflect the research on Adverse Childhood Experiences (ACEs) and trauma-informed care.
2. The rule shall contain provisions to ensure public school employees complete the required training every two years.
  - (A) The required training shall be at least a cumulative four hours (half day) of instruction on the elements identified in this section.
  - (B) A skills renewal is required every two years thereafter.
  - (C) The mode of delivery for the trainings may include in-person or e-learning instruction and may include a series of trainings or modules.
  - (D) The state board shall provide certificates of satisfactory completion for the employee and the employer documenting the employee completed the required training.

Other Laws

Polygraph Exams of Victims

§62-6-8. Alleged victims of sexual offense may not be required to submit to a polygraph examination or other truth telling device as a condition of investigating an alleged offense nor may prosecutors or law-enforcement officers decline to proceed if the victim refuses such examination.

No law-enforcement officer, prosecutor or any other government official may ask or require the adult, youth or child victim of an alleged sexual offense, as set forth in the provisions of section six, article eight, chapter sixty-one of this code; section six, article twelve of said chapter; section five, article eight-d, of said chapter; and article eight-b of said chapter, or any other sexual offense as defined under state or local law, to submit to a polygraph examination or other truth-testing examination as a condition for proceeding with the investigation of the alleged offense. No law-enforcement officer, prosecutor or any other government official may refuse to proceed with an investigation, warrant, indictment, information or prosecution of the alleged offense because the alleged victim refused to submit to such an examination.

Mandated HIV Testing: Charged Suspects

§16-3C-2. HIV related testing.

(h) Mandated testing:

The performance of any HIV-related testing that is or becomes mandatory by court order or other legal process described herein does not require consent of the subject but will include counseling.

The court having jurisdiction of the criminal prosecution shall order that an HIV-related test be performed on any persons charged with any of the following crimes or offenses: (i) prostitution; or (ii) sexual abuse, sexual assault, incest or sexual molestation.

HIV-related tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation shall be confidentially administered by a designee of the bureau or the local or county health department having proper jurisdiction. The commissioner may designate health care providers in regional jail facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient.

The prosecuting attorney shall inform the victim, or parent or guardian of the victim, at the earliest stage of the proceedings of the availability of voluntary HIV-related testing and counseling conducted by the bureau and that his or her best health interest would be served by submitting to HIV-related testing and counseling. HIV-related testing for the victim shall be administered at his or her request on a confidential basis and shall be administered in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of such request. The victim who obtains an HIV-related test shall be provided with pre- and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test. HIV-related testing and counseling conducted pursuant to this subsection shall be performed by the designee of the commissioner of the bureau or by any local or county health department having proper jurisdiction.

Sexting Educational Diversion Program

§49-4-717. Sexting educational diversion program; requirements.

(a) Before a juvenile petition is filed for activity proscribed by article eight-a or eight-c, chapter sixty-one of this code, or after probable cause has been found to believe a juvenile has committee a violation thereof, but before an adjudicatory hearing on the petition, the court or a prosecuting attorney may direct or allow a minor who engaged in the activity to participate in an educational diversion program which meets the requirements of subsection (b) of this section. The prosecutor or court may refer the minor to the educational diversion program, as part of a prepetition intervention pursuant to section seven hundred two of this article.

(b) The West Virginia Supreme Court of Appeals may develop an educational diversion program for minors who are accused of activity proscribed by article eight-a or eight-c, chapter sixty-one of this code. As a part of any specialized educational diversion program so developed, the following issues and topics should be included:

The legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable federal and state statutes;
The nonlegal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities;
How the unique characteristics of cyberspace and the Internet, including searchability, replicability and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials; and
The connection between bullying and cyber-bullying and minors sharing sexually suggestive or explicit materials.

(c) Once a specialized educational diversion program is established by the West Virginia Supreme Court of Appeals consistent with this section, the minor’s successful completion of the educational diversion program shall be duly considered by the prosecutor or the court in their respective decisions to either abstain from filing the juvenile petition or to dismiss the juvenile petition, as follows:

If the minor has not previously been judicially determined to be delinquent, and the minor’s activities represent a first offense for a violation of section three-b, article eight-c, chapter sixty-one of this code, the minor is not subject to the requirements of that section, as long as he or she successfully completes the educational diversion program; and
If the minor commits a second or subsequent violation of article eight-a or eight-c, chapter sixty-one of this code, the minor’s successful completion of the educational diversion program may be considered as a factor to be considered by the prosecutor and court in deciding to not file a petition or to dismiss a petition, upon successful completion of an improvement plan established by the court.