H. B. 2357
(By Delegates Poore, Marshall, Moore, Hamilton, Miley,
Longstreth, Caputo, Manchin and Ellem)
(Originating in the Committee on the Judiciary)
(March 29, 2013)
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §49-5-13g, relating to the development of an educational diversion program for minors engaged in delinquent offenses associated with sexting and related offenses; delineation of sexting and associated offenses; providing for the establishment of a specialized diversion program by the West Virginia Supreme Court of Appeals for sexting by minors and associated offenses; suggested scope and topics to be included in such specialized diversion program; providing for the participation in the diversion program as a part of a pre-petition diversion and informal resolution in advance of a filed petition, as part of a required counseling plan, or as part of an improvement period requirement established in advance of adjudication; consideration of successful completion of specialized diversion program on first offense and subsequent offenses; allowing for court discretion as to whether adjudicated juvenile should be required to register as a sex offender as a result of adjudication as status offender for sexting and related offenses.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §49-5-13g, to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13g. Sexting educational diversion program.
(a) A minor who intentionally possesses, creates, produces, distributes, presents, transmits, posts, exchanges or otherwise disseminates a visual portrayal of another minor or who distributes, presents, transmits, posts, exchanges or otherwise disseminates a visual portrayal of himself or herself engaging in sexually explicit conduct is engaging in an activity which is equivalent to one or more felony offenses under the provisions of eight-a and eight-c of this chapter and article fourteen-a, article three-c of this chapter, if committed by an adult, and be sufficient to support a juvenile delinquency petition filed pursuant to the provisions of article five, chapter forty-nine of this code.
(b) As used in this section, a “visual portrayal” means:
(1) A photograph;
(2) A motion picture;
(3) A digital image;
(4) A digital video recording; or
(5) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person that includes, but is not limited to, computers, cellphones, PDAs and other digital storage devices.
(c) Before a juvenile petition is filed for activity described in subsection (a) of this section, or after probable cause has been found to believe a juvenile is a status offender or a juvenile delinquent, but before an adjudicatory hearing on the petition, the court or a prosecuting attorney may direct or allow a minor who engaged in such activity to participate in an educational diversion program which meets the requirements of subsection (d) of this section. The prosecutor or court may refer the minor to the educational diversion program, as part of a pre-petition diversion and informal resolution pursuant to the provisions of section two-a of this article; as part of counseling provided pursuant to the provisions of sections three or three-a of this article; or as part of the requirements of an improvement period to be satisfied in advance of an adjudicatory hearing pursuant to the provisions of section nine of this article.
(d) The West Virginia Supreme Court of Appeals may develop an educational diversion program for minors who are accused of activity described in subsection (a) of this section. As a part of any specialized educational diversion program so developed, the following issues and topics should be included:
(1) The legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable federal and state statutes;
(2) The nonlegal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities;
(3) How the unique characteristics of cyberspace and the Internet, including searchability, replicability and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials; and
(4) The connection between bullying and cyber-bullying and minors sharing sexually suggestive or explicit materials.
(e) Once a specialized educational diversion program is established by the West Virginia Supreme Court of Appeals consistent with the provisions of this section, the minor’s successful completion of the educational diversion program shall be duly considered by the prosecutor or the court in their respective decisions to either abstain from filing the juvenile petition or to dismiss the juvenile petition, as follows:
(1) If the minor has not previously been found delinquent, and the minor’s activities represent a first offense for the activities described in subsection (a) of this section, the minor shall not be subject to the requirements of this article and chapter, as long as they successfully complete the educational diversion program; and
(2) If the minor’s activities represent a second or subsequent offense for the activities described in subsection (a) of this section, the minor’s successfuly completion of the educational diversion program may be considered as one of several factors to be considered by the prosecutor and court in deciding to not file a petition or to dismiss a petion, upon successful completion of an improvement plan established by the court.
(f) Notwithstanding the provisions of article twelve, chapter fifteen of this code, whether or not a minor adjudicated delinquent for a second or subsequent violation or offense as set forth in subsection (a) of this section shall be subject to the provisions of article twelve, chapter fifteen shall remain in the discretion of the circuit court.