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Introduced Version House Bill 2935 History

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hb2935 intr
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.
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