The Legal Age of Consent in West Virginia Explained

What is the Legal Age of Consent in West Virginia?

The legal age of consent in West Virginia is 16 years of age. Under West Virginia Code § 61-8B-3 and § 61-8B-7, a person who is at least 18 years old, and who has sexual intercourse with a person who is not his or her spouse, shall be guilty of a misdemeanor offense, provided that the other person is at least 16 years of age. A person not a spouse of the older person, who commits an unlawful act that would constitute the crime of sexual assault in the first degree , sexual assault in the second degree, or sexual abuse by a parent, guardian or custodian as defined in West Virginia Code § 61-8D-5, and is at least four years older than the victim, shall be guilty of a felony offense.
The legal definition of age of consent is basic. Generally, the term refers to the minimum legal age at which you can consent to sex, independent from age limits set in relation to marriage or pornography.

Evolution of Consent Laws in West Virginia

Historically, the age of consent for sexual relations was low; in fact, it has long been held at the statutory minimum of 16 in West Virginia. Until the year 2001, the prevailing view was that an individual under 16 years old could consent to sexual relations, but they could still be viewed as a "victim" and have their partner charged with a sexual offense.
However, this automatic "victim" paradigm was changed with the passage of the "Romeo and Juliet Law," otherwise known as S.B. 258. This Safe Harbor for Minors Law became effective on May 11, 2001. It provides a number of exemptions to the general prohibition against sexual relations with minors.
In particular, individuals between 16-18 years old cannot be prosecuted for sexual conduct with another individual if they are not more than four years older. Thus, if a 17-year-old is engaged in sexual relations with a 19-year-old, then neither would be considered a victim for purposes of the applicable sexual offense statute. However, if the 17-year-old were to have sexual relations with a 21-year-old, the younger party would still be considered a victim and the elder would be vulnerable to prosecution for criminal sexual assault or abuse.
The current law makes a distinction by factor of the victim’s age, even though he or she still needs to consent to the relationship in the first place. The purpose of this change in the law was founded in the idea that many young people from 16 to 18 are engaging in consensual relationships and had their partners automatically charged as criminals, even though such actions were not harmful or abusive.
Generally, this bill amended W.Va. Code section 61-8B-2, which specifies the different crimes of sexual violence, as well as their associated sentencing enhancements for rape and other criminal sexual offenses.

Legal Consequences of Violating West Virginia’s Age of Consent

Parallels can be drawn between sex-based offenses in West Virginia and highly complex, finely calibrated machines. One little piece put in the wrong place, or operating outside of design specs, can result in myriad problems right up to and including total and complete failure. This is nowhere more evident than in the enforcement of statutory law relating to unlawful sex with minors. Although there are certain offenses that stand on their own, the majority of these offenses revolve around consent. In these cases, the law becomes so fine-tuned that it is easy to run afoul and make serious and costly mistakes.
Here are just a few examples. State code specifies, for example, that if any person 18 years old or older has sexual intercourse or sexual intrusion with any minor, he or she commits a felony called "unlawful carnal knowledge" – unless the minor is his or her spouse. The same crime applies to individuals 16 years or older who have such encounters with any child under the age of 16. The maximum prison term for that crime? Ten years.
Under another statute, it is also a crime (felony) for a person over the age of 16 to solicit, persuade, entice or coerce any minor at least 14 years of age but under 16 to engage in sexual activity unless he or she is the minor’s parent. The statute goes on to specify that "soliciting," as just described, is also a crime when it is done through computer, through the use of "any other electronic means" or by mail or messenger or "any other delivery service." Again, a conviction carries a 10-year maximum sentence in state prison.
If you think that sounds like a tricky area of the law, consider the possible consequences of violating the state’s prohibition against distributing child pornography. That crime, too, is a felony, punishable by a minimum of one year and a maximum of five years behind bars. In addition, upon the third violation, the person will be deemed a sexually violent predator, a status that subjects that violator to many other major legal penalties.
As you read about these laws, you can probably spot the possible errors fairly quickly and easily. And yes, for someone who is regularly involved in the criminal justice system in West Virginia, these laws may very well seem simple – and the possible pitfalls, especially to a trained eye, are easy to spot.
But if you are someone who is lost in the system, someone who is out of your element, someone who is in it for the first time – or for the first time in a while – temptations not to take these laws seriously and to violate them often just enough to be caught can be very difficult to resist. This is especially true for people with psychiatric conditions, who can be at their most susceptible at times when they are most vulnerable.

Exceptions and Special Situations

While the age of consent in West Virginia clearly delineates when individuals can legally engage in consensual sex or sexual acts, there are a few exceptions or special circumstances that are worth knowing about. The first is with regard to close-in-age exemptions, commonly referred to as "Romeo and Juliet" laws. West Virginia has not enacted such a law or exemption.
The second, however, is with regard to individuals who are below the age of consent but who are married to one another. In West Virginia, individuals 15 and older are legally permitted to marry if the parents or guardians provide their consent. Moreover, the courts do not look favorably upon parents denying their consent to such a marriage. Importantly , the Licensing Officials Handbook gives certain instructions to clerks about the appropriate question when a couple appears to be a "common law" married couple (common law marriage means they are married even though they did not go through the government process of obtaining the "marriage license") to include if either is under 18 years of age, "is either party under 18, and if so, will that party obtain a marriage license in the presence of a parent or guardian?" So, if the answer is yes, then a license is going to be issued.
However, and it is important to note this, the marriage exemption does not act as a blanket protection and does not apply in all circumstances. For example, if one of the parties is substantially older than the minor (specifically, the law used to be an individual 21 or older), or the minor qualifies as a "victim of human trafficking," the exemption does not apply and the minors will still be subject to prosecution.

How West Virginia Compares with Other States

Among the four states that border West Virginia, Pennsylvania and Kentucky share West Virginia’s age of consent (16 years old), while Ohio, Virginia, Maryland and Tennessee all have an age of consent of 18 (with Maryland being a minor exception, allowing for consensual sexual conduct involving those between 16 and 18 years old). North Carolina, which also borders West Virginia, has an age of consent of 16. Virginia, Tennessee and Kentucky – which are located south of West Virginia – each have an age of consent of 18, while Maryland and Ohio, which lie to the east, have an age of consent of 18.

Getting Legal Help

If you are facing legal issues in relation to the West Virginia age of consent, it is important for you to speak with an experienced family law attorney. Because the law is complex and the consequences of violating the law are steep, you should not try to deal with such issues on your own.
The state’s sexual assault laws are extremely complex and can pertain to many different situations, including child pornography offenses, sexual exploitation of minors, sexual abuse by family, and other related matters . Each of these issues requires that the parent or guardian retains an attorney who understands their rights under state and federal laws in order to fully protect their interests.
If you are interested in speaking with an attorney about your situation, you should take advantage of the free consultations offered by many attorneys. Although you may not necessarily have to pay anything upfront, our lawyers can help you understand the possible outcomes for you and what steps you should take.
For further information about resources and legal aid services in West Virginia, we recommend that you visit the West Virginia state bar’s website.