W. Va. Code § 61-8B-2 – Lack of consent.

(a) Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without the consent of the victim.
(b) Lack of consent results from:
1. (1) Forcible compulsion;
2. (2) Incapacity to consent; or
3. (3) If the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.
(c) A person is deemed incapable of consent when such person is:
1. (1) Less than sixteen years old;
2. (2) Mentally defective;
3. (3) Mentally incapacitated;
4. (4) Physically helpless; or
5. (5) Subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse or causing sexual intrusion or sexual contact pursuant to §61-8B-10 of this code.