Though statutory rape does not require an assault, it is still rape.
Of course, rape that does involve an assault is illegal in West Virginia (see West Virginia Sexual Battery Laws).
Penalties increase when the defendant was 18 or older. Code § 61-8B-3, 61-8B-5, 61-8B-7, & 61-8B-9.) West Virginia has a marital exemption for statutory rape that allows married people to have consensual sex even if their ages would prohibit it if they were not married.
Sexual abuse in the third degree includes sexual contact between a victim who was younger than 16 years old and a defendant who was at least 16 years old (and at least four years older than the victim). Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15 year old willingly has sex with Tony, her 23 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
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The West Virginia Foundation for Rape Information and Services (FRIS) is West Virginia's state sexual assault coalition.
Assaults of a sexual nature may also be charged under the state’s assault and battery laws (to learn more, see Aggravated Assault Laws in West Virginia) or the state’s child molestation and enticement laws.
And for information about rape between spouses, see West Virginia Marital Rape Laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law, even if the two are married. Therefore even if the minor “consented,” the sexual activity was nonetheless illegal and the defendant may be convicted of rape, unless the a “Romeo and Juliet” exception applies.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age.
They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her.
But even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.
Sexual assault in the first degree includes intercourse between a victim younger than 12 years old and a defendant who was at least 14 years old (and four or more years older than the victim) at the time of the crime.