Introduced Version
House Bill 2935 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2935
(By Delegates Hunt, Moore, Marcum, Miley, P. Smith,
Skaff, White, Paxton, Hamilton, Faircloth and Barill)
[Introduced March 14, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-8C-2 and §61-8C-3 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §61-8C-3b, all
relating to child pornography; increasing criminal penalties
for certain violations; providing enhanced penalties for
second and subsequent violations; providing enhanced penalties
for violations involving possession of five hundred or more
images; providing enhanced penalties for violations involving
images showing a minor subjected to pain or engaging in sexual
activity with an animal; and providing that certain violators
are not eligible for probation.
Be it enacted by the Legislature of West Virginia:
That §61-8C-2 and §61-8C-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §61-8C-3b, all to read
as follows:
ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.
§61-8C-2. Use of minors in filming sexually explicit conduct
prohibited; penalty.
(a) Any person who causes or knowingly permits, uses,
persuades, induces, entices or coerces such a minor to engage in or
uses such the minor to do or assist in any sexually explicit
conduct shall be is guilty of a felony when such the person has
knowledge that any such the act is being photographed or filmed.
Upon conviction thereof, such the person shall be fined not more
than $10,000, or imprisoned in the penitentiary a correctional
facility not more than ten years, or both fined and imprisoned.
(b)(1) Any person who photographs or films such a minor
engaging in any sexually explicit conduct shall be is guilty of a
felony, and, upon conviction thereof, shall be:
(A) For a first offense under this article, fined not more
than $10,000, or and imprisoned in the penitentiary a correctional
facility for at least fifteen and not more than ten thirty years;
or both fined and imprisoned
(B) For a second or subsequent offense under this article,
fined not more than $100,000, and imprisoned in a correctional
facility for at least twenty-five and not more than fifty years.
_____(2) Notwithstanding section two, article twelve, chapter
sixty-two of this code, a person sentenced under paragraph (B),
subdivision (1) of this subsection, is not eligible for probation.
(c) (1) Any parent, legal guardian or person having custody
and control of a minor, who photographs or films such the minor in
any sexually explicit conduct or causes or knowingly permits, uses,
persuades, induces, entices or coerces such the minor child to
engage in or assist in any sexually explicit act shall be is guilty
of a felony when such the person has knowledge that any such the
act may be photographed or filmed. Upon conviction thereof, such
the person shall be:
(A) For a first offense under this article, fined not more
than $10,000, or and imprisoned in the penitentiary a correctional
facility for at least fifteen and not more than ten thirty years;
or both fined and imprisoned and
_____(B) For a second or subsequent offense under this article,
fined not more than $100,000, and imprisoned in a correctional
facility for at least twenty-five and not more than fifty years.
_____(2) Notwithstanding section two, article twelve, chapter
sixty-two of this code, a person sentenced under paragraph (B),
subdivision (1) of this subsection, is not eligible for probation.
§61-8C-3. Distribution and exhibiting of material depicting
minors engaged in sexually explicit conduct
prohibited; penalty.
(a) Any A person who
may not, with knowledge, sends or causes
send or cause to be sent, or distributes, exhibits, possesses or
displays or transports any distribute, exhibit, possess or display or transport any
material visually portraying a minor engaged in
any sexually explicit conduct.
(b) (1) A person who violates subsection (a) of this section
is:
(A)
For a first offense under this article,
guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary not more than two a correctional facility for not
less than five nor more than twenty years, and fined not more than
$2,000; and
_(B) For a second or subsequent offense under this article,
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a correctional facility for not less than fifteen nor
more than forty years, and fined not more than $200,000.
_(2) Notwithstanding section two, article twelve, chapter
sixty-two of this code, a person sentenced under paragraph (B),
subdivision (1) of this subsection, is not eligible for probation.
_(c) A person or who receives five hundred or more images
visually portraying a minor engaged in sexually explicit conduct
is:
_(1) For a first offense under this article, guilty of a felony
and, upon conviction thereof, shall be imprisoned in a correctional
facility for not less than five nor more than twenty years, and
fined not more than $2,000; and
_(2) For a second or subsequent offense under this article, guilty of a felony and, upon conviction thereof, shall be
imprisoned in a correctional facility for not less than fifteen nor
more than forty years, and fined not more than $200,000.
_(3) Notwithstanding section two, article twelve, chapter
sixty-two of this code, a person sentenced under this subsection,
is not eligible for probation.
§61-8C-3b. Enhanced penalty for violations involving image
showing minor subjected to pain or engaging in
sexual activity with an animal.
_____(a) In addition to the penalties provided in sections two and
three of this article, a person convicted of a violation of those
sections where the images involved include an image of a minor
subjected to pain or engaging in sexual activity with an animal
other than a human, shall be punished by adding an additional
fifteen years to the punishment imposed pursuant to those sections.
_____(b) Notwithstanding section two, article twelve, chapter
sixty-two of this code, a person whose sentence is enhanced under
subsection (a) of this section, is not eligible for probation.
NOTE: The purpose of this bill is to increase certain
penalties under the child pornography law to make them similar to
those imposed under federal law. The bill also provides enhanced
penalties for:
(1) Second and subsequent violations under some circumstances;
(2) Violations involving possession of five hundred or more
images; and
(3) Violations involving images showing a minor subjected to pain or engaging in sexual activity with an animal.
The bill also provides that certain violators are not eligible
for probation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-8C-3b is new; therefore, it has been completely
underscored.