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W. Va. Code § 61-8B-12

Same -- Defense

Applied in 3 court decisions — leading case Garnett v. State (1993)

Most recently applied in United States v. Wilson (February 2008)

How often courts cite this section

198519902000200810
citing decisions per year

Court decisions citing this, by year. The dip in the last several years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the most recent years, so recent citations are undercounted.

(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.

Official source: West Virginia Legislature. Reproduced from public-domain West Virginia statutes; confirm against the official source for the current text. Not legal advice.