(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 conditions.
(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.
Structure West Virginia Code
Chapter 61. Crimes and Their Punishment
§61-8B-3. Sexual Assault in the First Degree
§61-8B-4. Sexual Assault in the Second Degree
§61-8B-5. Sexual Assault in the Third Degree
§61-8B-7. Sexual Abuse in the First Degree
§61-8B-8. Sexual Abuse in the Second Degree
§61-8B-9. Sexual Abuse in the Third Degree
§61-8B-9a. Mandatory Sentence for Person Committing Certain Sex Offenses Against Children
§61-8B-11. Sexual Offenses; Evidence
§61-8B-11a. Convictions for Offenses Against Children
§61-8B-13. Payment of Treatment Cost for Victim
§61-8B-14. Limits on Interviews of Children Eleven Years Old or Less
§61-8B-15. Forensic Medical Examination Fund; Training of Sexual Assault Nurse Examiners
§61-8B-16. Payment for Costs of Forensic Medical Examination
§61-8B-17. Study of Reimbursement; Recordkeeping; Disclosure; Confidentiality
§61-8B-18. Rule-Making Authority
§61-8B-19. Court Files and Law-Enforcement Records; Confidentiality