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[Excerpts]

GLOSSARY

Bodily injury: substantial physical pain, illness or any impairment of physical condition.

Consent:
* Lack of consent results from:
1. Forcible compulsion; or
2. Incapacity to consent; or
3. If the offense charged is sexual abuse, any circumstances in addition to forcible compulsion and incapacity to consent in which the victim does not expressly or impliedly agree with the actor's conduct.
* A person is considered incapable of consent when she or he is:
1. Less then 16 years old; or
2. Mentally defective; or
3. Mentally incapacitated; or
4. Physically helpless.

Deadly weapon: any instrument, device or thing capable of inflicting death or serious bodily injury, and designed or specifically adapted for use as a weapon, or possessed, carried or used as a weapon. This does not include having AIDS or being HIV positive.

Defendant: the person accused of committing the sexual offense, including anyone who aided in committing the crime. The defendant is also referred to as the accused, alleged perpetrator, assailant, offender, or suspect.

Double jeopardy: the trying of a person a second time for an offense he was acquitted of at a previous trial. Prohibited by the fifth amendment of the Constitution.

Forcible compulsion:
1. Physical force that overcomes such earnest resistance as might be expected under the circumstances; or
2. Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to herself or another person or in fear that she or another person will be kidnapped; or
3. Fear by a child under 16 years old caused by intimidation, expressed or implied, by another person at least 4 years older than the victim.

For this definition, "resistance" means either physical resistance or any clear communication of the victim's lack of consent.

Indictment: a formal written accusation from the Grand Jury.

Juvenile defendant: anyone who is under the age of nineteen years and was under the age of eighteen years at the time of the offense.

Married: people living together as husband and wife regardless of the legal status of their relationship.

Mentally defective: a person that suffers from a mental disease or defect which renders the person incapable of appraising the nature of her conduct.

Mentally incapacitated: a person who is rendered temporarily incapable of appraising or controlling her conduct as a result of the influence of a controlled or intoxicating substance administered to such a person without her consent or as a result of any other act committed upon such a person without his or her consent.

Physically helpless: a person who is unconscious or for any reason is physically unable to communicate unwillingness to an act.

Probable cause: good reason for assuming that a charge has sufficient evidence.

Prosecution: the legal procedure to determine whether a person is criminally guilty or innocent.

Serious bodily injury: bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged impairment or loss of the function of any body organ. Psychological injury is not considered a serious bodily injury.

Sexual contact: any intentional touching, either directly or through clothing, of the anus or any part of the sex organs of another person, or the breasts of a female or intentional touching of any part of another person's body by the actor's sex organs, provided the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.

Sexual intercourse:
1. Any act between persons not married to each other involving penetration, however slight, of the female sex organ by the male sex organ; or
2. Contact between the sex organs of one person and the mouth or anus of another person.

When a defendant commits separate acts of sexual intercourse in different ways, each act may be prosecuted and punished as a separate offense. (State vs. Lola Mae C., 1991)

Sexual intrusion: any act between persons not married to each other involving penetration of the female sex organ or of the anus of either person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.

Victim: the person who was subjected to the sexual assault.
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PROSECUTION OF A SEXUAL OFFENSE

IMMEDIATE CONCERNS

A victim's immediate concerns after a sexual assault should be her health and safety. After a sexual assault occurs, she should go to a safe place and call the police. The police will send an officer to aid the victim, arrange for transportation to Women's and Children's Hospital, and begin collecting evidence at the crime scene.

Going to the hospital as soon as possible after the assault is extremely important for several reasons: 1) the victim may need immediate medical attention; 2) tests for pregnancy, venereal disease, and AIDS need to be done; 3) medical evidence is extremely helpful if she decides to prosecute.

It should be noted that merely reporting the assault to the police is not the same as prosecuting--it merely gives the victim the option to prosecute. The decision of whether or not to prosecute can be made later. Though the decision ultimately rests with the victim, she can receive guidance from a sexual assault counselor and medical and law enforcement personnel.

COLLECTION OF EVIDENCE FROM THE VICTIM

Since most of the evidence for prosecution of a sexual assault is medical evidence obtained from the victim, it is most important that the victim goes to the hospital as soon as possible and does not bathe, shower, douche, or change clothes until she is given permission by medical personnel. If possible, it is also very helpful if the victim refrains from defecating, urinating, gargling or drinking until given permission.

Upon arrival at Women's and Children's Hospital, the assigned registered nurse will accompany the victim to a private room for the initial interview, and a sexual assault counselor will be notified (usually Marla Eddy from the Sexual Assault Services of the Family Service of Kanawha Valley ). The registered nurse will then ask the victim about the rape and her current gynecological status. The nurse will also document the victim's medical history as well as her sexual history, allergies, current medications, menstrual cycle, use of contraceptives, and any current or past illnesses. The nurse will then determine if the victim has made or desires to make a police report (exactly when the police report is made can vary). If she desires to make a police report, the nurse then contacts the police.

To collect medical evidence for the police, Women's and Children's Hospital uses a "Sexual Assault Kit" (often referred to as a "rape kit"). The nurse first collects the evidence and then a physician performs the pelvic exam. The steps involved in evidence collection are:
* The nurse explains the hospital's HIV testing procedure and why HIV testing is beneficial. The victim then decides whether or not to permit HIV testing.
* Routine blood collection is done (to check for pregnancy or sexually transmitted diseases).
* The nurse documents any evidence of torn clothing or external injuries and takes photographs.
* The victim's clothing is collected and she is given a gown and robe to wear.
* Any physical evidence from the rape scene (such as grass or leaves) is also collected.
* Hairs are collected: the nurse collects any loose hairs or debris in the pelvic area (looking for pubic hairs of the assailant). The nurse then plucks 15-20 of the victim's pubic hairs and 15-20 of the victim's head hairs (to differentiate the victim's hairs from the assailant's).
* Fingernail scrapings are collected for detection of blood or tissue.
* The nurse then examines the victim's perineum, thighs, abdomen, buttocks and facial area for evidence of semen and, if detected, it is collected.
* Several slides are made and swabs taken from the vaginal, anal, and oral areas to check for semen, sexually transmitted diseases, and infections.
* The hospital provides the victim with any preventive medicine necessary (for tetanus, sexually transmitted diseases, pregnancy, etc.).
* The physician performs the pelvic exam. The victim may request to have the examination done by a female physician. Unfortunately, this request cannot always be granted because a female physician may not be available at the time.

The sexual assault kit is then locked in a box at the hospital until given to the police for further laboratory analysis. The nurse will discuss with the victim what follow-up tests and blood work need to be done. The sexual assault counselor provides the victim with hotline numbers and follow-up appointments. The victim also receives a brochure and application for the victim's assistance program (which pays certain compensation and medical benefits to victims of crime. See Crime Victims Compensation Act) All victims receive a follow-up phone call within 72 hours after the exam from an Emergency department nurse.

POLICE INTERVIEW

Once the medical exam is completed, the victim is interviewed by the police. A victim always has the right to refuse to talk with them, but the police will not be able to continue the investigation and prosecution cannot proceed without the cooperation of the victim. The interviewing officer will ask for a recounting of the assault, including what force, threats, or weapons the assailant may have used. The officer will also inquire about everything said or done by any participant in the crime and anything that would aid in identifying the offender. Questions about what happened before and after the assault may also be asked. Sometimes the questions may seem harsh, invasive or insensitive, but they are often necessary for investigating the crime. If the victim has any doubts or suspicions about the appropriateness or necessity of any police question, she should ask why the question is being asked. The officer should be able to provide a reason for every question asked. The victim may request to have the sexual assault counselor present during the interview, but this is allowed at the officer's discretion. It is important that the victim answer all questions honestly and completely, even if the questions are embarrassing or appear to weaken the case. If all details are not given to the police (and later to the prosecuting attorney), it may give the assailant's attorney an opportunity to argue that the victim should not be believed because facts were concealed.

The victim may request a female officer to conduct the interview. Unfortunately, this request cannot always be granted because a female officer may not be available at the time. For future reference, the victim should write down the interviewing officer's name, badge number, and how she can contact him/her.

OTHER EVIDENCE

In addition to medical evidence collected from the victim, the police collect physical evidence from the crime scene. It is extremely important that the victim refrain from moving or altering anything at the scene of the crime. If a struggle occurred and the crime scene is later altered, the credibility of the victim's story may be questioned.

The physical evidence collected includes fingerprints, hair, clothing fibers, body fluids, and items such as bed sheets or couch cushions that may contain trace evidence linking the assailant to the scene. The victim should try to remember anything the assailant might have touched, such as glass, windows, tabletops, etc. This will aid in the detection of fingerprints.

The police will interview the first person who spoke with the victim after the sexual assault. The police will also interview any eye witnesses or others who may be able to confirm the victim's description of the assault.

Statements from the victim and witnesses, and all medical and physical evidence are used to develop the legal case for prosecution. The police then prepare the written reports for the prosecuting attorney.

LIE DETECTOR TEST

The police may ask sexual assault victims to take a polygraph examination (lie detector test). Although the victim does not have to agree to take the test, it may help the police in their investigation. A polygraph is a machine that measures bodily functions such as heart rate, breathing rate, and blood pressure. The person administering the exam first asks questions that have nothing to do with the assault and then ask questions concerning specific details of the assault. The changes in heart rate, breathing rate, and blood pressure are used to indicate truthfulness. The results of polygraph examinations are not admissible in court because their accuracy is disputed by some experts. Polygraph results are sometimes used by the prosecuting attorney to decide whether or not to take a case. The defendant may ask to be given a polygraph test to try to show the prosecuting attorney that he is innocent. The results of the defendant's polygraph test also have some influence as to whether or not the prosecuting attorney takes the case.

THE PROSECUTING ATTORNEY

A sexual assault is considered an offense against the state. In West Virginia, the prosecuting attorney prosecutes sexual assault cases in criminal court. The victim is a witness for the state. The state, and not the victim, is the prosecuting party. The prosecuting attorney makes all critical decisions about the case and will ordinarily consult with the victim about these decisions.

One of the most important roles of the prosecuting attorney is to determine what action should be taken in criminal cases. The prosecuting attorney learns whether the victim is willing to undergo prosecution, evaluates the victim as a potential witness, and evaluates the evidence to determine whether guilt could be proven beyond a reasonable doubt. The prosecuting attorney is not required to automatically prosecute a crime. He or she may decide to begin a criminal prosecution, order further investigation, take an alternative to formal prosecution, or not even proceed with the case at all.

The decision about whether to prosecute is made several times during the progression of the case. The factors considered include whether there is enough evidence to convict, the probability of conviction, the nature of the crime, and the character of the offender.

ARREST AND CHARGE

The procedure for arresting and charging the suspected offender (defendant) differs based on the defendant's age and the nature of the offense. The procedures differ for prosecuting a juvenile and prosecuting an adult. If the defendant is under the age of 19 years and was under the age of 18 years at the time of the offense, the defendant is tried as a juvenile. Otherwise, the defendant is charged as an adult. Both procedures will be discussed in this guide.

JUVENILE DEFENDANT
JUVENILE PETITION

Instead of obtaining an arrest warrant (as for adult offenders), a juvenile is issued a juvenile petition. If the victim knows who committed the sexual assault, can identify the offender from police photographs, or if the offender can be identified by other evidence, she can file a juvenile petition that contains specific accusations about the assault. After filing the petition, the court will set a time and place for the preliminary hearing. A copy of the petition is then issued to the defendant. The parents, guardians, or custodians of the juvenile are named in the petition as well and are required to appear with the juvenile at the preliminary hearing.

When filing a petition, the court may order the juvenile to be taken into custody only if:
1. The petition shows that grounds exist for the arrest of an adult in identical circumstances; or
2. The health, safety, and welfare of the child demand such custody; or
3. The juvenile is a fugitive of a lawful custody; or
4. The juvenile has a record of willful failure to appear at juvenile proceedings, and custody is necessary to assure his presence before the court.

Since the United States legal system operates on the principle that an accused person is innocent until proven guilty, most defendants can be released from custody. This decision is made by the court. The court also orders the defendant not to contact the victim in any way. If the victim is contacted by the defendant, the defendant's friends or family, or is threatened in any way, she should immediately contact the detective assigned to her case or the prosecuting attorney.

If the juvenile is in custody, he must immediately be taken before a judge for a detention hearing. Otherwise, the case proceeds to the preliminary hearing.

DETENTION HEARING

If there is a detention hearing, the judge will inform the juvenile of his right to remain silent, that any statement may be used against him, his right to legal counsel, and that no interrogation will be made without the presence of a parent or counsel. The judge will hear testimony concerning the accusations made in the petition and decide whether the juvenile should be detained until further court proceedings. The court may release the juvenile to his parents or an appropriate agency, but may require bail to do so. It is possible that the preliminary hearing may be held in conjunction with the detention hearing. This depends on whether all parties are ready to proceed and if the defendant has legal counsel during the hearing.

PRELIMINARY HEARING

The purpose of the preliminary hearing is to determine whether there is enough evidence for a judge to decide that a crime probably was committed and that the juvenile defendant probably committed the crime. This is called probable cause. If probable cause is found, the case will proceed to adjudication. If probable cause is not found, the case against the defendant is dropped. If the case is dropped, the victim cannot make a criminal suit but may still pursue a civil suit (see Civil Suit). If the defendant is in custody, the preliminary hearing will be held within 10 days of the time the defendant was taken into custody. The preliminary hearing may be waived by the defendant, upon advice from his legal counsel.

At the hearing, the court:
1. Informs the defendant of his right to an attorney (and the right to have one appointed, if needed)
2. Determines if probable cause exists. If probable cause is not found, the defendant is released and the case is dismissed. If probable cause is found, the case will proceed to adjudication (and a date is set for the adjudicatory hearing).
3. Informs the defendant of his right to demand a jury trial.

The defendant has the right to ask for an improvement period for a period no longer than one year. If the court decides that the best interest of the defendant is likely to be served by an improvement period, the court may delay the adjudicatory hearing and allow the improvement period to serve the rehabilitative needs of the defendant. Once the improvement period is over, the court may dismiss the case if rehabilitation is successful, otherwise the case proceeds to the adjudicatory hearing. Note that the defendant's asking for an improvement period may not be construed as admission to the accusations nor used as evidence.

Preliminary hearings are held in the office of the Juvenile Referee.

TRANSFER OF A JUVENILE TO ADULT STATUS

In some cases, the prosecuting attorney may file a written motion asking for the case to be transferred from juvenile jurisdiction to criminal jurisdiction (asking that the juvenile be tried as an adult). The transfer to criminal jurisdiction may be made if:
1. The defendant is being tried for an offense of violence to the victim which would be a felony if the defendant were an adult provided that the defendant has been previously guilty of an offense that would be a violent felony if the defendant were an adult; or
2. The defendant is being tried for an offense which would be a felony if the defendant were an adult provided that the defendant has been twice previously guilty of an offense that would be a felony if the defendant were an adult; or
3. The defendant is at least 16 years old and is being tried for an offense of violence to the victim that would be a felony if the defendant were an adult; or
4. The defendant is at least 16 years old and is being tried for an offense that would be a felony if the defendant were an adult provided that the defendant has been previously guilty of an offense that would be a felony if the defendant were an adult.

Transfer to criminal jurisdiction is automatic for first degree sexual assault. If a transfer to criminal jurisdiction is made, the case proceeds to the Grand Jury as if the defendant were an adult (see Grand Jury). Otherwise, the case remains in juvenile jurisdiction and proceeds to the adjudicatory hearing.

ADJUDICATORY HEARING

At the beginning of the adjudicatory hearing, the court informs the defendant of the allegations made in the petition and allows him to enter a plea (whether he admits to or denies the allegations). The defendant has the right to not say anything at all, in which case the court considers his plea to be not guilty.

If the defendant admits to the allegations in the petition, the court considers his admission to be proof of the allegations if:
1. The defendant fully understands his rights.
2. The defendant voluntarily, intelligently, and knowingly admits to all allegations.
3. The defendant's admission did not contain facts which constitute a defense to the allegations.

If the defendant denies the allegations, the court proceeds to hear evidence. If the allegations in the petition are admitted or are sustained by proof beyond a reasonable doubt, the court schedules the case for disposition. Otherwise, the petition is dismissed and the defendant released from custody.

DISPOSITION

The disposition is when the court decides upon one of several methods of punishment (including no punishment) for the offender. To aid in this process, the juvenile probation officer or state department worker assigned to the case will investigate the juvenile's environment (home life, school, etc.) and the alternative dispositions possible. A psychiatric exam of the juvenile may be ordered as well.

Following the adjudicatory hearing, the court holds the dispositional proceeding and allows all parties to be heard. The court is not bound to the punishment sought in the juvenile petition and will only give the least restrictive of the alternatives that is consistent with the best interests of the welfare of the public and the juvenile. The alternatives range from dismissal of the petition (no punishment) to incarceration. In addition to the court's disposition, the court may order one or more of the following penalties:
1. Fine the juvenile no more than $100
2. Require the offender to repay the victim for damages or losses caused by the offenses of which he was found guilty.
3. Require the juvenile to take part in a public service project.
4. If the offender is 15 years old or younger, the court may not allow him a junior operator's driver's license. If the offender is between 16 and 18 years old, his license may be revoked for as long as 2 years.

Note that even if a juvenile is transferred to adult status and tried and convicted as an adult, the court may still make its disposition as if he were tried and convicted as a juvenile.

The offender may appeal any dispositional order to the supreme court of appeals. If an appeal is made, the judge may delay punishment until further proceedings are complete.

ADULT DEFENDANT
ARREST

If the victim knows who committed the sexual assault, can identify the offender from police photographs, of if the offender can be identified by other evidence, the police will obtain an arrest warrant from a judge. Once the warrant is issued, the police can arrest the suspected assailant and place him in jail.

Sometimes the victim is asked to identify the offender from a line-up of several persons at the police station. The victim can ask that the people in the line-up do or say something to help recall how the offender looked or sounded during the assault. The victim cannot be seen by the people in the line-up.

Within 24 hours of the arrest, the suspect will be brought before a judge and informed of:
1. The charges being brought against him.
2. The defendant's right to an attorney (one will be appointed if the defendant cannot hire one)
3. The right to remain silent.
4. The date of the preliminary hearing.

Since the United States legal system operates on the principle that an accused person is innocent until proven guilty, most defendants can be released from jail on bail or the promise that he will appear in court. This decision is made by the judge. The judge also orders the defendant not to contact the victim in any way. If this order is violated, the defendant's bail can be increased or he can be returned to jail. If the victim is contacted by the defendant, the defendant's friends or family, or is threatened in any way, she should immediately contact the detective assigned to her case or the prosecuting attorney.

PRELIMINARY HEARING

The purpose of the preliminary hearing is to determine whether there is enough evidence for a judge to decide that a crime probably was committed and that the defendant probably committed the crime. This is called probable cause. If probable cause is found, the case will proceed to the Grand Jury and the defendant will remain on bail or in jail. If probable cause is not found, the case is dismissed and the defendant is released from bail bond or jail. The victim may still request that the case be taken to the Grand Jury, but this decision is ultimately made by the prosecuting attorney. In this case, the defendant is still released from bail bond or jail.

The preliminary hearing involves the victim answering questions asked by both the prosecuting attorney and the defense attorney (the defendant's attorney). The defendant will be at the hearing but will probably not testify. Preliminary hearings are held in the Magistrate Court.

GRAND JURY

The grand jury is a group of sixteen men and women selected for jury duty that decides whether there is enough evidence to make a formal charge against the defendant. If the victim testifies, it is done privately to the Grand Jury so neither the defendant nor the defense attorney is present. The prosecuting attorney questions the victim and/or police officer about the crime. If the Grand Jury decides that there is sufficient evidence for the case to go to trial, it will issue an indictment against the defendant and the case proceeds to arraignment (at least twelve of the sixteen must return the indictment). If sufficient evidence is not found, the case against the defendant is dropped. If the case is dropped, the victim cannot make a criminal suit but may still pursue a civil suit (see Civil Suit). The Grand Jury hearing usually takes place within a few months of the preliminary hearing.

ARRAIGNMENT

Soon after the Grand Jury hearing, the defendant is required to appear in court for arraignment. The victim is not required to be present. At the arraignment, the defendant is informed of the charges against him and is allowed to enter a plea (whether he admits to or denies the allegations). If he pleads guilty, the judge will set a date for sentencing. If he pleads not guilty, a trial date will be set and the case will proceed to pre-trial. The defendant may also postpone making a plea in which case another court date for arraignment will be set.

PRE-TRIAL

During the time between arraignment and the trial, there may be several court appearances where the prosecuting attorney and the defense attorney argue various motions before the court. The victim usually does not have to be present.

During this time, the attorneys will be involved in learning the facts about the case. The defense attorney learns what evidence the state has and is allowed to see the physical evidence and copies of the hospital and laboratory reports. The defense attorney may also request to interview any witnesses, including the victim. Only the victim may decide whether she wants to be interviewed at this time. Note that it is strongly recommended that the victim contact the prosecuting attorney, the detective assigned to the case, or a local rape support organization before any contact with the defense attorney is made.

PLEA BARGAIN

Once the pre-trial phase is complete, both attorneys will be familiar with the evidence in the case. They may try to negotiate a settlement through plea bargaining. Plea bargaining is when the defendant admits to committing an offense and accepts an agreed upon punishment without a trial ever taking place. A plea bargain is a compromise so the prosecuting attorney may agree to drop some charges, reduce the charge to a less serious one, or recommend a lesser sentence than the defendant would receive if found guilty in a trial. Although not ideal, plea bargaining can sometimes benefit the victim. In a plea bargain, there is no chance that the defendant will be found not guilty and the victim does not have to endure the stress of a trial. The prosecuting attorney will discuss the option of plea bargaining with the victim and can explain its benefits and disadvantages. Once the trial has begun, the judge may still allow a plea bargain to be made. If no plea-bargain is made or agreed upon, the case proceeds to trial.

TRIAL

The defendant has the right to decide whether he wants a trial by jury or by a judge alone. If a trial by jury is chosen, the jury is selected by the prosecuting attorney and the defense attorney. After the jury is selected, both attorneys will make opening statements to the jury expressing each of their theories about the case and what each believes the evidence will show. Once the opening statements are complete, the prosecution will present its case. The victim is usually the first witness for the prosecution. The prosecuting attorney asks the victim questions about the case knowing in advance what the answers will be. Once the prosecuting attorney has finished questioning the victim, the defense attorney will cross-examine. This means that the defense attorney will question the victim. This part of questioning is often more detailed, difficult, and stressful. The best strategy for any witness being cross-examined is to remain calm and simply answer the questions asked without volunteering information.

The defense is then allowed to present its evidence. It is up to the prosecution to prove that the defendant is guilty beyond a reasonable doubt. Because the defendant does not have to prove innocence, there is no guarantee that the defendant will testify or that the defense attorney will present any evidence at all.

At the conclusion of all the evidence, both attorneys will make their final arguments and the judge will instruct the jury on the law to be applied to the facts of the case. The jury then deliberates in private. If all members of the jury cannot reach the same decision, it is called a "hung jury." If this happens, another trial may or may not take place at a later time. This decision is made by the prosecuting attorney.

If the jury finds the defendant not guilty, the decision is final and cannot be appealed. The case is finished and the defendant released. Note that a not guilty decision does not necessarily mean that the jury thought the victim was lying or believed the defendant. It simply means that there was not enough evidence for the jury to believe, beyond a reasonable doubt, that the defendant was guilty.

If the jury finds the defendant guilty, the judge will set a date for sentencing. The sentencing hearing is where the judge decides on an appropriate punishment for the offender. Note that if given a guilty verdict, the defendant has the option to appeal the case. If an appeal is made, the judge may delay punishment until further proceedings are complete.

NOTES * A conviction for rape or any other sexual offense may be had on the uncorroborated testimony of the victim provided the jury decides her testimony is not inherently incredible (State vs. Green, 1979 and State v. McPherson, 1988).
* In any prosecution of the above sexual offenses, neither age nor mental capacity of the victim may prevent the victim from testifying.
* In any prosecution of the above sexual offenses where the victim's lack of consent was due solely to being younger than 16 years old, evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct is not admissible. In any other sexual offense prosecution, evidence of specific instances of the victim's prior sexual conduct with the defendant is admissible on the issue of consent only if that evidence is first heard out of the presence of the jury and found by the judge to be relevant.
* A sexual assault victim's previous sexual conduct with others has very little relevance to questions concerning her consent to intercourse with a particular person at a particular time. The portion of the law which prohibits such evidence is constitutional (State v. Green, 1979).
* An offender who is sentenced to jail may not actually spend the entire length of the sentence in jail. A standard offender can be eligible for parole after having served only one-fourth of his sentence. For example, an offender sentenced to 15 years in jail may be let out after only 5 years. The remaining time is served on parole.

CONCLUSION

Victims of sexual assault have survived a horrifying, humiliating, degrading, brutalizing, angering, demeaning, and dehumanizing experience. Except for homicide, rape is the most serious violation of a person's body because it deprives the victim of both physical and emotional privacy and autonomy. When a rape occurs, the victim's sense of self as well as her body is penetrated and used without consent. She has lost the most basic human need and right: control of physical and emotional self. The sexual assault victim has been forced to experience an event that, from her viewpoint, is often mostly emotionally asexual. The victim's psychological response to rape primarily reflects her reaction to violation of self. Therefore, it is extremely important that others treat rape victims as having been both emotionally and physically assaulted. They deserve to be treated with dignity and compassion and assured that their decision of whether or not to prosecute is respected.

This decision is extremely difficult to make and is one that will continue to affect the life of the victim for months, and quite often, years. This guide was created to aid in making this decision.

CRIME VICTIMS COMPENSATION ACT

The Crime Victims Compensation Act establishes a fund which pays certain compensation and medical benefits (money) to victims of crime. The program is administered by the West Virginia Court of Claims. The program is funded by additional court costs assessed to every person who is convicted of or pleads guilty to a misdemeanor or felony offense, other than a non-moving traffic violation. These additional court costs are transmitted to the State Treasurer for deposit into the Crime Victims Compensation Fund.

In order to be eligible to file a claim, one must be:
1. An innocent victim who suffers personal injury as the result of a crime; or
2. An individual who is the dependent of a deceased victim of a crime; or
3. A West Virginia resident who is victimized in a state that does not have a victim compensation program.

One must also have reported the crime to law enforcement officials within 72 hours, fully cooperated with the law enforcement officials, and the claim for compensation must be filed within 2 years of the date of the crime.

An attorney is not needed but if a claimant seeks the services of an attorney, reasonable fees will be paid by the Fund at no cost to the claimant. There is no filing fee.

The claim is processed by a Claim Investigator who reviews the claim and files a finding of fact and recommendation. A judge of the Court of Claims then evaluates the claim without a hearing and renders a decision. A hearing on the matter will be held if either the claimant or the Claim Investigator disagrees with the decision rendered.

Compensation payable to a victim and to all other claimants sustaining economic loss because of injury to that victim shall not exceed $20,000. Compensation for the death of a victim shall not exceed $30,000, which includes up to $3,000 for funeral expenses.

CIVIL SUIT

In addition to criminal prosecution, a victim can hire a private attorney and sue the assailant for personal injury in Civil Court. If the civil lawsuit is won, the assailant is ordered to pay money for damages caused, including medical expenses, loss of income, and pain and suffering. Punitive damages may also be available. Punitive damages are not to compensate the victim for actual injury, but to punish the offender. If the offender was found guilty in criminal court, the victim is likely to win in Civil Court as well.

In a civil suit, the assailant will be publicly charged and held accountable for his actions. He will not be able to escape anonymously. The woman is much more in control over this kind of proceeding. There is no detailed questioning about her past sexual conduct, medical documentation of intercourse, etc. There are also psychological benefits to this kind of suit: it gives the victim an outlet for her anger and lets her regain some of the power the assailant took from her. An important factor to consider when deciding whether to file a civil suit is whether the assailant will be able to pay the money damages. If he owns nothing of value or has no income, a civil suit could result in a judgement that is impossible to collect.

Another alternative in filing a civil suit is to bring the suit against a person or business for failing to provide reasonable security when and where the sexual assault occurred. This kind of suit usually requires some sort of special relationship between the victim and the person or business that failed to prevent the assault (employee-workplace, student-campus, tenant-landlord, guest-hotel, etc.).

For further information, a victim should consult with a lawyer to learn the specific process and requirements to file a civil suit.
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SEXUAL OFFENSE LAWS (WV)
The laws listed here are from the 1993 edition of the West Virginia Code

SEXUAL ASSAULT OF THE FIRST DEGREE

A person is guilty of first-degree sexual assault when:
* Such person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
1. Inflicts serious bodily injury upon anyone; or
2. Employs a deadly weapon in the commission of the act; or
* Such person, being 14 years old or more, engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less.

Any person who violates the above provisions shall be guilty of a felony, and, upon conviction, shall be:
1. Imprisoned in the penitentiary between 15 and 35 years; or
2. Imprisoned in the penitentiary between 15 and 35 years and fined between $1,000 and $10,000.

Note: Evidence that a defendant committed violent or turbulent acts toward the sexual assault victim or toward others of which is she aware is relevant to establish her fear of her attacker which is a major element of proof of first-degree sexual assault (State v. Pancake, 1982).

Note: A juvenile assailant is automatically tried as an adult for first-degree sexual assault (see Transfer of a Juvenile to Adult Status)

SEXUAL ASSAULT OF THE SECOND DEGREE

A person is guilty of second-degree sexual assault 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.

Any person who violates the above provisions shall be guilty of a felony, and, upon conviction, shall be: 1. Imprisoned in the penitentiary between 10 and 25 years; or 2. Imprisoned in the penitentiary between 10 and 25 years and fined between $1,000 and $10,000.

Note: A juvenile assailant is sometimes tried as an adult for second-degree sexual assault (see Transfer of a Juvenile to Adult Status)

SEXUAL ASSAULT OF THE THIRD DEGREE

A person is guilty of third-degree sexual assault (statutory rape) when: 1. Such person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
2. Such person, being 16 years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than 16 years old and who is at least 4 years younger than the defendant.

Any person who violates the above provisions shall be guilty of a felony, and, upon conviction, shall be:
1. Imprisoned in the penitentiary between 1 and 5 years; or
2. Imprisoned in the penitentiary between 1 and 5 years and fined no more than $10,000.

Note: Consent is not a defense to third-degree sexual assault. Consent is irrelevant. (State v. Persinger, 1982)

SEXUAL ABUSE OF THE FIRST DEGREE

A person is guilty of first-degree sexual abuse when:
1. Such person subjects another person to sexual contact without his/her 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, who is 14 years old or more, subjects another person to sexual contact who is 11 years old or less.

Any person who violates the above provisions shall be guilty of a felony, and, upon conviction, shall be:
1. Imprisoned in the penitentiary between 1 and 5 years; or
2. Imprisoned in the penitentiary between 1 and 5 years and fined no more than $10,000.

SEXUAL ABUSE OF THE SECOND DEGREE

A person is guilty of second-degree sexual abuse when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.

Any person who violates the above provisions shall be guilty of a misdemeanor, and, upon conviction, shall be:
1. Imprisoned in the county jail no more than 12 months; or
2. Imprisoned in the county jail no more than 12 months and fined no more than $500.

SEXUAL ABUSE OF THE THIRD DEGREE

A person is guilty of third-degree sexual abuse when such person subjects another person to sexual contact without the victims consent, when lack of consent is due to being less than 16 years old.

Any person who violates the above provisions shall be guilty of a misdemeanor, and, upon conviction, shall be:
1. Imprisoned in the county jail no more than 90 days; or
2. Imprisoned in the county jail no more than 90 days and fined no more than $500.

Note: defenses for third-degree sexual abuse are:
1. The defendant was less than 16 years old; or
2. The defendant was less than 4 years older than the victim.

NOTES
* Sexual assault of a spouse is handled differently than the above cases.
* For purposes of punishment, sexual abuse involving parents, custodians, or guardians is a separate and distinct crime from the general sexual offenses listed above. Consequently, separate sentences for both crimes are permissible. (State vs. Gill 1992)
* Convictions for first and third degree sexual assault, and for incest, did not violate the defendant's rights under the double jeopardy clause (State v. Peyatt, 1983).
* Convictions for abduction and sexual assault did not violate the defendant's rights under the double jeopardy clause (State v. Trail, 1985).

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