Senate Bill No. 418
(By Senator Oliverio, By Request)
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[Introduced February 3, 1999;
referred to the Committee on the Judiciary.]
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A BILL to repeal section six, article eight-b, chapter sixty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section one
of said article, relating to abolishing the partial spousal
immunity for sexual abuse.
Be it enacted by the Legislature of West Virginia:
That section six, article eight-b, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; and that section one of said article be
amended and reenacted to read 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) Physical force that overcomes such earnest resistance as
might reasonably be expected under the circumstances; or
(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 kidnaped; or
(c) Fear by a person under sixteen 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 anus or any part of
the sex organs of another person, or the breasts of a female 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
not married to each other 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
not
married to each other 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: (1) An examination for physical
trauma; (2) a determination of penetration or force; (3) a patient interview; and, (4) 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.
NOTE: The purpose of this bill is to abolish the partial
spousal immunity for sexual assault by eliminating all
distinction between a spouse or a stranger with regard to the
crime of rape.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.