H. B. 2315
(By Delegate Hall)
[Introduced January 12, 2011; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-3C-14a of the Code of West Virginia, 1931, as amended, relating to obscene, anonymous, harassing and threatening communications by computer; criminal penalties; and providing a felony criminal penalty for third and subsequent offenses.
Be it enacted by the Legislature of West Virginia:
That §61-3C-14a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer; penalty.
(a) It is unlawful for any person, with the intent to harass or abuse another person, to use a computer to:
(1) Make contact with another without disclosing his or her identity by sending a message to the person on an electronic mail or other computerized communication system with the intent to harass or abuse;
(2) Make contact with a person after being requested by the person to desist from contacting them;
(3) Threaten to commit a crime against any person or property; or
(4) Cause obscene material to be delivered or transmitted to a specific person after being requested to desist from sending such material.
For purposes of this section, “obscene material” means material that:
(A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest;
(B) An average person, applying contemporary adult community standards, would find, depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or scientific value.
(b) It is unlawful for any person to knowingly permit a computer under his or her control to be used for any purpose prohibited by this section.
(c) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.
(d) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in a county or regional jail not more than six months, or both fined and confined. For a second or subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in a county or regional jail for not more than one year, or both fined and confined. For a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility for not more than two years, or both fined and imprisoned.
NOTE: The purpose of this bill is to provide that a third or subsequent offense under this section is a felony and, provide penalties of imprisonment for not more than two years, a fine of not more than $5,000, or both.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.