§61-8B-12. Same -- Defense.
(a) In any prosecution under this article in which the
victim's lack of consent is based solely on the incapacity to
consent because such victim was below a critical age, mentally
defective, mentally incapacitated or physically helpless, it is an
affirmative defense that the defendant at the time he or she
engaged in the conduct constituting the offense did not know of the
facts or conditions responsible for such incapacity to consent,
unless the defendant is reckless in failing to know such facts or
(b) The affirmative defense provided in subsection (a) of this
section shall not be available in any prosecution under subdivision
(2), subsection (a), section three, and under subdivision (3),
subsection (a), section seven of this article.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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