H. B. 2498
(By Delegates Azinger and Craig)
[Passed March 10, 2007; in effect ninety days from passage.]
AN ACT to amend and reenact §61-8-9 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-8B-1 of said
code, all relating to sexual offenses; increased penalties for
indecent exposure for the purpose of sexual gratification;
and, expanding the definition of sexual contact to include the
touching of the buttocks.
Be it enacted by the Legislature of West Virginia:
That §61-8-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-8B-1 of said code be amended
and reenacted, all to read as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-9. Indecent exposure.
(a) A person is guilty of indecent exposure when such person
intentionally exposes his or her sex organs or anus or the sex
organs or anus of another person, or intentionally causes such
exposure by another or engages in any overt act of sexual
gratification, and does so under circumstances in which the person
knows that the conduct is likely to cause affront or alarm.
(b) Except as provided in subsection (c), any person who
violates the provisions of this section shall be guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
not more than ninety days, or fined not more than two hundred fifty
dollars and confined in jail not more than ninety days.
(c) Any person who violates the provisions of subsection (a)
of this section by intentionally exposing himself or herself to
another person and the exposure was done for the purpose of sexual
gratification, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars or
confined in jail not more than twelve months, or both. For a
second offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars and confined in jail for not less than thirty days nor more
than twelve months. For a third or subsequent offense, the person
is guilty of a felony and, upon conviction thereof, shall be fined
not more than three thousand dollars and imprisoned in a state
correctional facility for not less than one year nor more than five
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is
(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 kidnapped; 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
(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) "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) "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) "Physically helpless" means that a person is unconscious
or for any reason is physically unable to communicate unwillingness
to an act.
(6) "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
(7) "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) "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) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition.
(10) "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) "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) "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.