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.

(1) Less than sixteen years old;

(2) Mentally defective;

(3) Mentally incapacitated;

(4) Physically helpless; or

(5) Subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse or causing sexual intrusion or sexual contact pursuant to §61-8B-10 of this code. ~~subsections (a) and (b) of section ten of this articl~~e.

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

(a) Any person employed by the Division of Corrections and Rehabilitation, any person working at a correctional facility managed by the Commissioner of Corrections and Rehabilitation pursuant to contract or as an employee of a state agency or as a volunteer 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 §62-11B-1 et seq. 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 fined not more than $5,000 or imprisoned ~~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~~ both fined and imprisoned.

(b) Any person employed by the Division of Corrections and Rehabilitation 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 fined not more than $5,000 or imprisoned ~~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 both fined and imprisoned. ~~or fined not more than $5,000, or both.~~

(c) Any person working or volunteering in an alternative sentence program authorized by the provisions of §62-11C-1, et seq. of this code who, as part of his or her employment or volunteer duties, supervises program participants, engages in sexual intercourse, sexual intrusion, or sexual contact with a program participant is guilty of a felony and upon conviction, shall be fined not more than $5,000, imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and imprisoned.

~~(c)~~ (d) 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 §62-11B-1 et seq. of this code.

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