WEST virginia legislature

2020 regular session

Introduced

Senate Bill 125

By Senator Trump

[Introduced January 8, 2020; referred
to the Committee on the Judiciary]

A BILL to amend and reenact §61-8B-11 of the Code of West Virginia, 1931, as amended, relating generally to evidence in prosecution for sexual offenses; prohibiting a victim from being subjected to certain physical examinations; and providing that a victim’s refusal to undergo certain physical examinations does not preclude admission of evidence regarding other physical examinations.

Be it enacted by the Legislature of West Virginia:

ARTICLE 8B. SEXUAL OFFENSES.

§61-8B-11. Sexual offenses; evidence.

(a) 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.

(b) 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.

(c) In any prosecution under this article, neither age nor mental capacity of the victim shall preclude the victim from testifying.

(d) At any stage of the proceedings, in any prosecution under this article, the court may permit a child who is 11 years old or less to use anatomically correct dolls, mannequins, or drawings to assist such child in testifying.

(e) No court may require or order a victim, in any prosecution under this article, to submit to or undergo a gynecological or physical examination of the breasts, buttocks, anus, or any part of the sex organs. The refusal of a victim to undergo such examination at the request of the defendant may not serve as the basis to exclude evidence obtained from other relevant physical examinations of the victim, except where constitutionally required. The purpose of this subsection is to expressly overrule the decision of the Supreme Court of Appeals in State ex rel. J.W. v. Knight, 223 W.Va. 785, 679 S.E.2d 617 (2009).

NOTE: The purpose of this bill is to prohibit a victim in sexual offense prosecutions from being subjected to certain physical examinations. The bill overrules the decision of the Supreme Court of Appeals in State ex rel. J.W. v. Knight, 223 W.Va. 785, 679 S.E.2d 617 (2009).

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.