CHARLESTON, W.Va. — A county prosecutor is urging state lawmakers to take a look at removing marital exemption language when it comes to sexual assault allegations.
Monongalia County Prosecutor Perri Jo DeChristopher addressed the Joint Standing Committee on the Judiciary during Monday’s legislative interim committee meetings.
DeChristopher told lawmakers 24 states and the District of Columbia have removed marital immunity provisions while 26 states, including West Virginia retain them.
“The existence of forcible compulsion would be a crime for which someone could receive a penitentiary sentence, but it is absolutely excused if it is a spouse committing that crime against another spouse,” DeChristopher said.
West Virginia law does state any type of forcible sexual intercourse is against the law, regardless of marital status.
Senator Robert Karnes, R-Randolph, said a legislative change like could result in additional litigation and really is not needed within the contract of marriage.
“You want to make it a crime to do inside of a marriage what would be a crime outside of a marriage,” Karnes said. “Even though married partners assume because it’s part of the implied contract of marriage that those things are going to be ok.”
If the marital exception is lifted, Karnes said spouses in a divorce could claim unwanted touching or sexual assault and add criminal charges, some years after the allegation while a divorce is being litigated.
“That just needs to be viewed like any other criminal investigation,” DeChristopher said. ” Part of the investigation and a decision of law enforcement or prosecutors to be made within the totality of the circumstances in each and every case.”
Delegate Joey Garcia, D-Marion, said married or not, each sexual assault case contains the same components. Technically, the accused can completely admit to the assault and be granted immunity from prosecution because of the exception.
“Under the marriage exception here they can admit to all of the elements of having sexually abused or sexually assaulted a victim, but they can say we’re married,” Garcia said. “And that means they cannot be prosecuted.”
DeChristopher said part of the concern with the exemption is marriage laws in the state that allow children younger than 16 to marry, but only upon order of a circuit judge. When questioned about that issue DeChristopher acknowledged that speaking for Monongalia County it was not a concern.
A 2021 bill, Senate Bill 498, was proposed to change the definition of sexual contact to address the issue but was not passed.