ENROLLED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 165

(Senators Laird, Tucker, Yost, Barnes, Plymale, Unger and Wills, original sponsors)

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[Passed February 6, 2012; in effect ninety days from passage.]

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AN ACT to amend and reenact §61-8B-2 and §61-8B-10 of the Code of West Virginia, 1931, as amended, all relating to prohibiting sexual acts between persons who are incarcerated, on probation or parole with state and local jail, correctional, probation and parole employees or contractors; prohibiting sexual contact; removing consent of victim as a defense for criminal acts; and establishing criminal penalties.

Be it enacted by the Legislature of West Virginia:

    That §61-8B-2 and §61-8B-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 8B. SEXUAL OFFENSES.

§61-8B-2. Lack of consent.

    (a) Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without the consent of the victim.

    (b) Lack of consent results from:

    (1) Forcible compulsion;

    (2) Incapacity to consent; or

    (3) If the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.

    (c) A person is deemed incapable of consent when such person is:

    (1) Less than sixteen years old;

    (2) Mentally defective;

    (3) Mentally incapacitated;

    (4) Physically helpless; or

    (5) Subject to confinement or supervision by a state or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact pursuant to subsections (a) and (b) of section ten of this article.

§61-8B-10. Imposition of sexual acts on persons incarcerated or under supervision; penalties.

    (a) Any person employed by the Division of Corrections, any person working at a correctional facility managed by the Commissioner of Corrections pursuant to contract or as an employee of a state agency, any person working at a correctional facility managed by the Division of Juvenile Services pursuant to contract or as an employee of a state agency, any person employed by a jail or by the Regional Jail and Correctional Facility Authority, any person working at a facility managed by the Regional Jail and Correctional Facility Authority or a jail or any person employed by, or acting pursuant to, the authority of any sheriff, county commission or court to ensure compliance with the provisions of article eleven-b, chapter sixty-two of this code who engages in sexual intercourse, sexual intrusion or sexual contact with a person who is incarcerated in this state is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one nor more than five years or fined not more than $5,000.

    (b) Any person employed by the Division of Corrections as a parole officer or by the West Virginia Supreme Court of Appeals as an adult or juvenile probation officer who engages in sexual intercourse, sexual intrusion or sexual contact with a person said parole officer or probation officer is charged as part of his or her employment with supervising, is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one nor more than five years or fined not more than $5,000, or both.

    (c) The term “incarcerated in this state” for purposes of this section includes in addition to its usual meaning, offenders serving a sentence under the provisions of article eleven-b, chapter sixty-two of this code.

    (d) Authorized pat-down, strip search or other security related tasks does not constitute sexual contact pursuant to this section.