H. B. 4732


(By Delegate Miley)
[Introduced February 23, 2006; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §61-8B-3, §61-8B-4, §61-8B-5,§61-8B-7, §61-8B-8 and §61-8B-9 of the Code of West Virginia, 1931, as amended, all relating to increasing penalties for certain sexual criminal offenses and to eliminating eligibility for probation by certain sex offenders.

Be it enacted by the Legislature of West Virginia:
That §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8 and §61-8B-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years, or and fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years. A sentence imposed under the provisions of this section is mandatory and a person convicted of an offense under the provisions of this section is not eligible for probation.
§61-8B-4. Sexual assault in the second degree.
(a) A person is guilty of sexual assault in the second degree when:
(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than ten nor more than twenty-five years, or and fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary not less than ten nor more than twenty-five years. A sentence imposed under the provisions of this section is mandatory and a person convicted of an offense under the provisions of this section is not eligible for probation.
§61-8B-5. Sexual assault in the third degree.
(a) A person is guilty of sexual assault in the third degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
(2) The person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant and is not married to the defendant.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year seven years nor more than five fifteen years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than five years. A sentence imposed under the provisions of this section is mandatory and a person convicted of an offense under the provisions of this section is not eligible for probation.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree when:
(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or
(2) Such person subjects another person to sexual contact who is physically helpless; or
(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than one year five nor more than five years, or fined not more than ten thousand dollars and imprisoned in the penitentiary not less than one year five years nor more than five ten years.
§61-8B-8. Sexual abuse in the second degree.
(a) A person is guilty of sexual abuse in the second degree when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.
(b) Any person who violates the provisions of this section shall be guilty of a misdemeanor felony and, upon conviction thereof, shall be confined in the county jail not more than twelve months, or fined not more than five hundred dollars and confined in the county jail not more than twelve months in a state correctional facility not less than one year nor more than three years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than three years.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter's consent, when such lack of consent is due to the victim's incapacity to consent by reason of being less than sixteen years old.
(b) In any prosecution under this section it is a defense that:
(1) The defendant was less than sixteen years old; or
(2) The defendant was less than four years older than the victim.
(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail not more than ninety days, or fined not more than five hundred dollars and confined in the county jail not more than ninety days one year and fined not more than five hundred dollars. A sentence imposed under the provisions of this section is mandatory and a person convicted of an offense under the provisions of this section is not eligible for probation.



NOTE: The purpose of this bill is to increase penalties for certain sexual criminal offenses and to eliminate eligibility for probation by certain sex offenders.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.