Senate Bill No. 100
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
[Originating in the Committee on the Finance;
reported February 21, 1996.]
A BILL to amend and reenact section one, article eight-b, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto four new sections, designated
sections fifteen, sixteen, seventeen and eighteen, all
relating to the definition of terms; creating a forensic
medical examination fund; administration of the fund by the
West Virginia prosecuting attorneys institute; reimbursement
of institute for expenses; payment from the forensic medical
examination fund of the costs of forensic medical exams
given to victims of certain sexual offenses; directing a
study regarding reimbursement from private insurance
companies; development and maintenance of a database;
disclosure; confidentiality; and development of rules,
instructional manuals and forms by the institute.
Be it enacted by the Legislature of West Virginia:
That section one, article eight-b, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto four new sections, designated
sections fifteen, sixteen, seventeen and eighteen, all to read as
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
child 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) "Mentally defective" means that a person suffers from a
mental disease or defect which renders
such 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
such that person without
his or her consent or as a result of any other act committed upon
such 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 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) "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
(8) "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) "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
§61-8B-15. Creation of a forensic medical examination fund.
There is hereby created "The Forensic Medical Examination
Fund" created as a special fund in the state treasury into which
shall be deposited the appropriations made to the fund by the
Legislature. Expenditures from the fund shall be made by the West Virginia prosecuting attorneys institute, created by the
provisions of section six, article four, chapter seven of this
code, for the payment of the costs of forensic medical
examinations as they are defined in section sixteen of this
article and for the reimbursement to the institute of its
expenses in administering the payment of the costs from the fund.
§61-8B-16. Payment for costs of forensic medical examination.
(a) When any person alleges that he or she has been the
victim of an offense proscribed by this article, the West
Virginia prosecuting attorneys institute shall pay to a licensed
medical facility from the forensic medical examination fund the
cost of the forensic medical examination for this person on the
following conditions and in the following manner:
(1) The payment shall cover all reasonable, customary and
usual costs of the forensic medical examination;
(2) The costs of additional nonforensic procedures performed
by the licensed medical facility, including, but not limited to,
prophylactic treatment, treatment of injuries, testing for
pregnancy and testing for sexually transmitted diseases, may not
be paid from the fund;
(3) The forensic medical examination must have been
conducted within seventy-two hours of the alleged violation;
(4) The licensed medical facility must apply for payment of
the costs of a forensic medical examination from the fund within
ninety days of the examination;
(5) The licensed medical facility shall submit a statement
of charges to the prosecuting attorney in the county in which the alleged offense occurred and the prosecuting attorney shall
certify, if proper, that the forensic medical examination was
conducted as a part of a criminal investigation; and
(6) The prosecuting attorney shall, within sixty days of
receipt of a statement of charges from the licensed medical
facility, forward the statement of charges and the certification
to the West Virginia prosecuting attorneys institute for payment
from the fund and for the reimbursement of the institute from the
fund for the reasonable costs of processing and recording the
(b) No licensed medical facility may collect the costs of
a forensic medical examination from the victim of an alleged
violation of this article if the reasonable, customary and usual
costs of the forensic medical examination qualifies for payment
from the forensic medical examination fund as set forth in
subsection (a) of this section.
§61-8B-17. Study of reimbursement; recordkeeping; disclosure;
(a) The West Virginia prosecuting attorneys institute is
hereby directed to undertake a study of the viability of the
state seeking reimbursement from private insurance companies for
the cost of forensic medical examinations. The study shall be
completed prior to the first day of the regular legislative
session, one thousand nine hundred ninety-seven, and provided to
the president of the Senate and the speaker of the House of
(b) The West Virginia prosecuting attorneys institute shall develop and maintain a database for use by law-enforcement
personnel, prosecuting attorneys and persons engaged in lawful
research of the information collected pursuant to its
administration of the forensic medical examination fund. The
database shall include the number of examinations performed, the
facilities performing the examination and where feasible, other
information considered to be of assistance to law-enforcement and
the prosecution of sexual offenses. The database shall be
maintained in a manner which assures the confidentiality of the
§61-8B-18. Rule-making authority.
The executive council of the West Virginia prosecuting
attorneys institute, created by the provisions of section six,
article four, chapter seven of this code, shall promulgate rules
in accordance with article three, chapter twenty-nine-a of this
code, for the administration of the forensic medical examination
fund, establishing qualifications for medical personnel
performing a forensic medical examination and any other rules
necessary to the implementation of this program. The institute
shall also create and distribute to all licensed medical
facilities, law-enforcement agencies and prosecuting attorneys'
offices the instructional manuals and forms necessary to perform
forensic medical examinations and to receive payment from the
fund. From the effective date of this section until the date of
the promulgation of these rules, the executive council of the
West Virginia prosecuting attorneys institute may file rules as
emergency rules in accordance with the applicable provisions of this code in order to govern during this period of time the
administration of the fund.