Senate Bill No. 100
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
[Introduced January 19, 1996;
referred to the Committee on the Judiciary;
and then to the Committee on Finance.]
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 three new sections, designated
sections fifteen, sixteen and seventeen, all relating to the
definition of terms; the creation of a forensic medical
examination fund; and the payment from the forensic medical
examination fund of the costs of forensic medical exams
given to victims of sexual assault.
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 three new sections, designated
sections fifteen, sixteen and seventeen, all to read as follows:
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
another person or in fear that he or another person will be
(c) Fear by a child under sixteen years of age caused by
intimidation, expressed or implied, by another person 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 person incapable of
appraising the nature of his 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 person without his or
her consent or as a result of any other act committed upon such
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 exam" means an examination provided to a sexual assault victim by medical personnel trained to gather
evidence of a sexual assault 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 sexual assault
occurred and to the determination of the identity of the
§61-8B-15. Creation of a forensic medical examination fund.
The forensic medical examination fund shall be created as
a special fund in the state treasury into which shall be
deposited the appropriations made to such 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 exams as
set forth in section sixteen of this article and for the
reimbursement to the institute of its expenses in administering
the payment of such 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 sexually assaulted, 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 exam
for this person on the following conditions and in the following
(1) The payment shall cover all reasonable, customary and
usual costs of the forensic medical exam;
(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, shall
not be paid from the fund;
(3) The forensic medical exam must have been conducted
within seventy-two hours of the alleged sexual assault;
(4) The licensed medical facility shall apply for payment
of the costs of a forensic medical exam from the fund within the
ninety days' period of time commencing on the date of the
(5) The licensed medical facility shall submit a bill 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 exam was conducted as a part of a
criminal investigation; and
(6) The prosecuting attorney shall, within the sixty days'
period of time commencing on the date of receipt of a bill from
the licensed medical provider, forward the bill and the
certification to the West Virginia prosecuting attorneys
institute for the payment of the bill from the fund and for the
reimbursement of the institute from the fund of the reasonable
costs of processing and recording such payment.
(b) A licensed medical provider shall not collect the costs
of a forensic medical exam from the victim of an alleged sexual
assault if the reasonable, customary and usual costs of the
forensic medical exam qualifies for payment from the forensic
medical examination fund as set forth in subsection (a) of this
§61-8B-17. 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
for the administration of the forensic medical examination fund
and shall create and distribute to all medical facilities, law enforcement agencies and prosecuting attorneys' offices the
instructional manuals and forms necessary 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.
NOTE: A bill to create a fund to pay the cost of forensic
medical examinations for victims of sexual assault. This bill
will bring the State of West Virginia in compliance with the
federal Violence Against Women Act, which compliance is necessary
for continued funding under the act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§61-8B-15, 16 and 17 are new, therefore, strike-throughs and
underscoring have been omitted.