Age of Consent in West Virginia
West Virginia’s legal minimum age for sexual relations is sixteen (16) years. Prior to 2017, the law had a provision that stated it was "unlawful to have sexual intercourse with" a person under the age of 16 years. This was a misdemeanor level crime and carried a penalty of not less than one or more than twelve months of incarceration. With the passing of Senate Bill 283 (2017 West Virginia Code § 61-8-8(a)), the state moved from the misdemeanor level crime to that of 3rd degree felony. With this new ruling, any person 16 years or older can partake in sexual activity with a minor under the age of 16. If the penalty is handed down, it would be five to 25 years in jail.
The AP reported in March of 2017 that Republican Delegate Michael Folk said of the change , "If a young person is going to engage in sexual activity, they should be old enough to understand the consequences of their actions," as he sponsored the legislation. "We urge the House to act to protect the children of this great state."
Sexual abuse of minor children under the age of 16 has been a crime in West Virginia since 1943. Under the former wording of the law the penalty was one to five years of incarceration. Although the wording was changed in 2017, the penalties and classification of the crime went up considerably in the new revision.
After the change to Senate Bill 283, two important 2017 cases nullified the new law. One case saw a man declare the new law unconstitutional, yet it is still standing under the recent law change.
Exceptions and Particular Cases
The legal age of consent in West Virginia, generally is 16 years old. However, there are exceptions to this rule that are important to understand.
One exception to the rule against statutory rape in West Virginia relates to the so-called "Romeo and Juliet" exemption that may be found in W. Va. Code § 61-8-5(a). As a general rule, in matters of sexual conduct, a couple who is aged 4 years apart or fewer — if the younger of the two is at least age 14 — is exempt from investigation, indictment, or prosecution.
There are other exceptions that apply in West Virginia. For instance, in West Virginia, sexual conduct with a person age 16 or older can be legal if the person age 16 or older provides permission. The law requires the person age 16 or older to give this permission directly or via a parent or guardian.
Sexual conduct with someone under these age limits can be legal if the parties marry.
Few people know that the West Virginia law against sexual conduct requires that if either party is married, that the four-year window under the "Romeo and Juliet" exemption is reduced to 3 years. Only when neither party is married, is the exemption four years in length.
Like every other state, West Virginia is required by Federal Law to comply with the Uniform Age of Majority Act set out in the Family Law Reform Act of 1969.
Comparison with Other States
The legal age of consent can vary widely from state to state, and most states presume a younger age of consent than is the case in West Virginia. The median age of consent in the United States is generally 16 years of age. In fact, 31 states have an age of consent that is 16 years of age.
For instance, among our neighboring states, the legal age of consent is 16 in Kentucky and Ohio, and 17 in Pennsylvania and Maryland. In Virginia, the age of consent is 18 unless certain factors are met, including that the defendant be at least 20 years old. The age of consent in the District of Columbia is 16 years of age.
In terms of the ages of participants in sexual activity generally, the law provides certain immunities or defenses that may apply to parents, teachers or other responsible parties who may otherwise be subject to prosecution. Given the age of consent set forth under various laws, it is legal for teenagers to engage in sexual relations with another teenager, provided they are close in age and the circumstances do not otherwise suggest undue influence or coercion.
In locations beyond the borders of our neighboring states, the age of consent does not vary greatly. For instance, the national median age of consent is 16 years in Mexico and France. The legal age of consent is 17 years in England, Canada and Japan. Overall, comparing other states and countries the legal age of consent in West Virginia is not much different than many other locales.
Legal Implications and Penalties
Violating the legal age of consent in West Virginia can result in serious legal consequences, including criminal charges and severe penalties. Children younger than 16 years of age cannot legally consent under West Virginia Code §61-8B-1, meaning that anyone over the age of 16 who has sexual contact, engages in sexual intercourse, or performs sexually explicit conduct with a minor under the age of 16 can face prosecution.
If not specifically exempted, the most likely charge for individuals that violate the legal age of consent is third-degree sexual assault. Under West Virginia Code §61-8B-5:
(a) A person is guilty of a felony if, being 16 years of age or older, he or she . . .
(2) Engages in sexual intercourse or incest with another person, and when the actor knows or has reasonable cause to believe the other person is under the age of 16 years; . . .
(b) A person is a second-degree sexual offender if he or she is guilty of a felony defined in subsection (a) of this section, and the victim is less than 14 years of age.
Third-degree sexual assault can be charged as either a felony or a misdemeanor. If convicted, this charge carries with it a possible one to five year sentence and any measures deemed necessary for rehabilitation.
In addition, if the offender is in a position of trust, authority, or supervision over a minor, the penalties are enhanced. Under West Virginia Code §61-8B-6:
(a) A person is guilty of a felony if, being 18 years of age or older, he or she engages in sexual intercourse, incest or sexual intrusion with another person
(1) Being less than 16 years of age, and . . .
(b) The actor is in a position of trust or authority over the other person, or the actor is the parent, foster parent, step-parent, guardian or custodian of the other person, whether or not they have shared or are sharing a residence together. . .
(c) For the purpose of this section, "position of trust or authority" means a parent, grandparent, guardian, foster parent, family member, step-parent, step-grandparent, step-sibling, stepparent, teacher, doctor, attorney, police officer, coach, camp counselor, clergy member, or any other person who is entrusted with the care, custody or control of a minor.
(d) A person found guilty of a violation of this section or a violation of section five of this article, is guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than two nor more than 20 years.
As indicated in the law above, West Virginia classifies all sexual contact with underage children as a felony offense, meaning that the convicted individual will have a permanent felony on their criminal record, regardless of the degree of the crime.
Protective Steps and Legal Guidance
Given the complexities and the serious consequences of these laws and their enforcement, a strong understanding of consent will protect those that interact with minors the most from criminal charges that may come as a result of their legal sexual activities with minors. While the law may seem straight forward to many, there is a lot of room for interpretation that may lead to questions regarding what actions may each adult parent consider acceptable and those that may have negative consequences . There are a lot of resources available to both teens and parents to better understand consent laws and how they apply to them and their family. Through respect, knowledge, and guardianship, parents and legal guardians can protect their teens from the criminal charges that can come from those who do not understand the law and the legal ramifications that may come from their actions.
Implications for Teen Dating
The legal age of consent in West Virginia has a substantial impact on the dating landscape for teenagers. With the high school years often being a time of first experiences in relationships, it is essential to have a clear understanding of the nuances of the law, both for young people and their parents.
In the state, the age of consent is 16. This means that once a person reaches the age of 16, he or she can consent to having sexual interactions with another person who is of the same or older age, and some of the consequences for failure to do so.
If a person engages in a sexual act with an underage person in West Virginia, he or she could face a misdemeanor charge of contributing to the delinquency of a minor. While this is a misdemeanor, it is important to know that it can establish a criminal record for the actor.
It is also possible for an older person to be charged for engaging in sexual acts with an underage person, even if the underage person seeks to bring the charges themselves. If an underage youth is involved with an older partner and their actions come to the attention of authorities, both parties may be prosecuted for statutory rape, even if they are the same age.
The most significant influence of statutory rape laws on teen relationships in West Virginia simply comes through education. Young people should understand exactly how the law applies to their situation. It is also important for parents to understand the law and counsel their children appropriately, as the ramifications associated with statutory rape can follow a young person for years after.
Education is the key to promoting safe sex and healthy relationships for all young people. By taking the time to teach kids about safe practices and the legal implications of statutory rape, parents and educators can help create an environment in which young people are better able to communicate with their partners and make responsible choices.
Historical Context on Consent Laws
Historically, age of consent laws can be traced back to the early 19th century, when the law protected young women who might be at risk of sexual exploitation and abuse. In West Virginia, the legal age of consent has evolved over time, reflecting broader shifts in societal attitudes toward these issues. West Virginia first established an age of consent at the age of 18 in 1863. Its consent laws were revised in 1891 and 1994 . The age of consent, which was 14, was raised to 16 for females and 17 for males in 1891 as a result of a 19th amendment to the constitution of West Virginia. In 1994, the age of consent was raised again to 16 for both sexes when the state made it a felony to have sex with a person in the custody of the Department of Health and Human Resources, remove the state as a separate criminal offense, and raise the age of consent to 16.