Bill Amendment: WV SB190 | 2024 | Regular Session
Bill Title: Modifying definition of sexual contact
Status: 2024-04-23 - Chapter 82, Acts, Regular Session, 2024 [SB190 Detail]
Download: West_Virginia-2024-SB190-sb190_hfa_vance_3-7_1.html
SB190 HFA Vance 3-7 #1
WRV 3133
Delegate Vance moved to amend the bill on page 1, after the enacting clause, by striking everything after the enacting clause and inserting in lieu thereof as follows:
ARTICLE 8B. sexual offenses.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is required:
(1) "Forcible compulsion" means:
(a) (A) Physical force that overcomes such earnest resistance as might that is reasonably be expected under the circumstances; or
(b) (B) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or herself or another person, or in fear that he or she or another person will be kidnapped; or
(c) (C) Fear by a person under 16 years of age caused by intimidation, expressed or implied, by another person who is at least four years older than the victim.
For the purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
(2) "Married", for the purposes of this article in addition to its legal meaning, includes persons living together as husband and wife regardless of the legal status of their relationship.
(3) (2) "Mentally defective" means that a person suffers from a mental disease or defect which renders that person incapable of appraising the nature of his or her conduct.
(4) (3) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent or as a result of any other act committed upon that person without his or her consent.
(5) (4) "Physically helpless" means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
(6) (5) "Sexual contact" means any intentional touching, either directly or through clothing, of the breasts, buttocks, anus, or any part of the sex organs of another person, or intentional touching of any part of another person’s body by the actor's sex organs where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.
(7) (6) "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.
(8) (7) "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.
(9) (8) "Bodily injury" means substantial physical pain, illness, or any impairment of physical condition.
(10) (9) "Serious bodily injury" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
(11) (10) "Deadly weapon" means any instrument, device, or thing capable of inflicting death or serious bodily injury and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.
(12) (11) "Forensic medical examination" means an examination provided to a possible victim of a violation of the provisions of this article by medical personnel qualified to gather evidence of the violation in a manner suitable for use in a court of law, to include: An examination for physical trauma; a determination of penetration or force; a patient interview; and the collection and evaluation of other evidence that is potentially relevant to the determination that a violation of the provisions of this article occurred and to the determination of the identity of the assailant.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) (A) Inflicts serious bodily injury upon anyone; or
(ii) (B) Employs a deadly weapon in the commission of the act. or
(2) The person, being 14 years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than 12 years old. and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than 15 nor more than 35 years, or fined not less than $1,000 nor more than $10,000 and imprisoned in a state correctional facility not less than 15 nor more than 35 years.
(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any person violating the provisions of subsection (a) of this section who is 18 years of age or older and whose victim is younger than 12 years of age, shall be imprisonment in a state correctional facility for not less than 25 nor more than 100 years and a fine of not less than $5,000 nor more than $25,000.
§61-8B-5. Sexual assault in the third degree.
(a) A person is guilty of sexual assault in the third degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
(2) The person, being 16 years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than 16 years old and who is at least four years younger than the defendant. and is not married to the defendant.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year two years nor more than five 10 years, or fined not more than $10,000 $20,000 and imprisoned in a state correctional facility not less than one year two years nor more than five 10 years.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent, when such lack of consent is due to the victim's incapacity to consent by reason of being less than sixteen 16 years old.
(b) In any prosecution under this section it is a defense that:
(1) The defendant was less than sixteen 16 years old; or
(2) The defendant was less than four years older than the victim.
(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor felony, and, upon conviction thereof, shall be confined in the county jail a state correctional facility not more less than ninety days one year, or fined not more than $500 $1,000 and confined in the county jail a state correctional facility not more less than ninety days one year.
ARTICLE 8D. child abuse.
§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; failing to report sexual assault or abuse upon a child; displaying of sex organs by a parent, guardian, or custodian; penalties.
(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 a correctional facility not less than ten 20 nor more than twenty 40 years, or fined not less than $500 $1,000 nor more than $5,000 $10,000 and imprisoned in a correctional facility not less than ten 20 years nor more than twenty 40 years.
(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 16 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 10 years nor more than fifteen 30 years, or fined not less than $1,000 $2,000 nor more than $10,000 $20,000 and imprisoned in a correctional facility not less than five 10 years nor more than fifteen 30 years.
(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 16 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 two years nor more than five 10 years.
(d) Notwithstanding any other provision of this code otherwise, any parent, guardian, custodian or other person in a position of trust in relation to a child who knows or learns that said child has been subjected to sexual assault or sexual abuse, sexual exploitation, sexual intrusion or sexual contact in violation of chapter sixty-one of this code, and who fails to report the same to law enforcement, shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than two years nor more than 10 years.
(d) (e) 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.
§61-8D-6. Sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian, or custodian, or person in a position of trust, depicting a child engaged in sexually explicit conduct; penalty.
Any parent, guardian, or custodian, or person of position of trust 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 four years, and fined not less than $400 $800 nor more than $4,000 $8,000.
Adopted
Rejected
