Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 4407 History

   |  Email


H. B. 4407

 

         (By Delegates Miley, Lawrence, Smith and Poore)

         [By Request of the State Police]

         [Introduced February 2, 2012; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

A BILL to amend and reenact §61-8C-1 and §61-8C-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto six new sections, designated §61-8C-6, §61-8C-7, §61-8C-8, §61-8C-9, §61-8C-10, §61-8C-11, and §61-8C-12 of the Code of West Virginia, 1931, as amended, all relating crimes and their punishment; filming of sexually explicit conduct of minors; Legislative findings; including “lascivious” and “child erotica” in definitions; establishing procedures for seizure, sale and forfeiture of assets and other real property used for the exploitation of children; and criminal penalties.

Be it enacted by the Legislature of West Virginia:

    That §61-8C-1 and §61-8C-3 as amended, be amended and reenacted, and that said code be amended by adding thereto six new sections designated §61-8C-6 §61-8C-7, §61-8C-8, §61-8C-9, §61-8C-10, §61-8C-11 and §61-8C-12 of the Code of West Virginia, 1931, all to read as follows:

ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.

§61-8c-1. Definitions.

    For the purposes of this article:

    (a) "Minor" means any child under eighteen years of age.

    (b) "Knowledge" means knowing or having reasonable cause to know which warrants further inspection or inquiry.

    (c) "Sexually explicit conduct" includes any of the following, whether actually performed or simulated:

    (1) Genital to genital intercourse;

    (2) Fellatio;

    (3) Cunnilingus;

    (4) Anal intercourse;

    (5) Oral to anal intercourse;

    (6) Bestiality;

    (7) Masturbation;

    (8) Sadomasochistic abuse, including, but not limited to, flagellation, torture or bondage;

    (9) Excretory functions in a sexual context; or

    (10) Lascivious exhibition of the genitals, pubic or rectal areas of any person.

    (d) "Person" means an individual, partnership, firm, association, corporation or other legal entity.

    (e) “Child Erotica” means any material relating to minors that serves a sexual purpose for a given individual, to include nonnude or seminude photographs and videos of minors in sexually suggestive poses modeling a variety of clothing types such as dresses, bikinis, nightgowns or undergarments. Child erotica may also include, in addition to images, other materials that may cause sexual arousal, such as children's diaries, drawings, underwear, letters and other similar items.

§61-8C-3. Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct or child erotica prohibited; penalty.

    Any person who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses, displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility, not more than two years less than two years for each offense committed, and fined not more than $2,000.

     Any person who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses, displays or transports any material visually portraying child erotica is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 and confined in jail for not less than thirty days nor more than twelve months, or both fined and confined.

§61-8C-6. Legislative findings.

    The Legislature hereby finds and declares that the seizure and sale of items under the provisions of this article is not contemplated to be a forfeiture as the same is used in article twelve, section five of the West Virginia Constitution and to the extent that a seizure and sale may be found to be a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article is not part of net proceeds as the same is contemplated by such article twelve, section five of the West Virginia Constitution.

§61-8C-7. Items subject to forfeiture; persons authorized to seize property subject to forfeiture.

    (a) The following are subject to forfeiture:

    (1) All visual depictions which have been manufactured, distributed, dispensed or possessed in violation of articles three-c, eight-a, or eight-c of this chapter;

    (2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any visual depictions or any crimes against children in violation of articles three-c, eight-a, or eight-c of this chapter;

    (3) All property which is used, or has been used, or is intended for use, as a container for property described in subdivision (1), (2) or (3) of this subsection;

    (4) All conveyances, including aircraft, vehicles or vessels, which are used, have been used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in subdivision (1), (2) or (3) of this subsection, except that:

    (i) A conveyance used by any person as a common carrier in the transaction of business as a common carrier may not be forfeited under this section unless it appears that the person owning the conveyance is a consenting party or privy to a violation of the provisions of articles three-c, eight-a, or eight-c of this chapter;

    (ii) A conveyance may not be forfeited under the provisions of this article if the person owning the conveyance establishes that he or she neither knew, nor had reason to know, that the conveyance was being employed or was likely to be employed in a violation of the provisions of articles three-c, eight-a, or eight-c of this chapter; and

    (iii) A bona fide security interest or other valid lien in any conveyance may not be forfeited under the provisions of this article, unless the state proves by a preponderance of the evidence that the holder of the security interest or lien either knew, or had reason to know, that the conveyance was being used or was likely to be used in a violation of the provisions of articles three-c, eight-a, or eight-c of this chapter;

    (5) All books, records, research products and materials, including formulas, microfilm, tapes and data which are used, or have been used, or are intended for use, in violation of the provisions of articles three-c, eight-a, or eight-c of this chapter;

    (6) All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished in violation of this chapter by any person in exchange for a visual depiction, all proceeds traceable to the exchange and all moneys, negotiable instruments and securities used, or which have been used, or which are intended to be used to facilitate any violation of the provisions of articles three-c, eight-a, or eight-c of this chapter: Provided, That property may not be forfeited under this subdivision, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his or her knowledge or consent; and

    (7) All real property, including any right, title and interest in any lot or tract of land, and any appurtenances or improvements, which are used, or have been used, or are intended to be used, in any manner or part, to commit or to facilitate the commission of a violation of the provisions of articles three-c, eight-a, or eight-c articles of this chapter punishable by more than one year imprisonment: Provided, That property may not be forfeited under this subdivision, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without his or her knowledge or consent.

    (a) The requirements of this subsection pertaining to the removal of seized property are not mandatory in the case of real property and the appurtenances to the real property.

    (b) Property subject to forfeiture under this article may be seized by the State Police (hereinafter referred to as the "appropriate person" in this article).

    (c) Visual depictions listed in section one, article eight-c of this chapter which are manufactured, possessed, transferred, sold or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Visual depictions which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state upon the seizure of the visual depictions.

    (d) Notwithstanding any other provisions of this article to the contrary, any items of real property or any items of tangible personal property sold to a bona fide purchaser are not subject to forfeiture unless the state establishes by clear and convincing proof that the bona fide purchaser knew or should have known that the property had in the previous three years next preceding the sale been used in violation of this chapter.


 

§61-8C-8. Procedures for seizure of forfeitable property.

    (a) Seizure of property made subject to forfeiture by the provisions of this article may be made upon process issued by any court of record having jurisdiction over the property.

    (b) Notwithstanding the provisions of subsection (a) of this section, seizure of property subject to forfeiture by the provisions of this article may be made without process if:

    (1) The seizure is incident to a lawful arrest or pursuant to a search under a search warrant or an inspection warrant;

    (2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this article;

    (3) The appropriate person has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

    (4) The appropriate person has probable cause to believe that the property was used or intended for use in violation of this chapter.

    (c) If there is a seizure pursuant to subsection (b) of this section, forfeiture proceedings shall be instituted within ninety days of the seizure thereof.

    (d) Property taken or detained under this section may not be subject to replevin, but is considered to be in the custody of the appropriate person, subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this article, the appropriate person may:

    (1) Place the property under seal;

    (2) Remove the property to a place designated by him or her;

    (3) Require the appropriate law-enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law; or

    (4) In the case of seized moneys, securities or other negotiable instruments, place the assets in any interest-bearing depository insured by an agency of the federal government. The requirements of this subsection pertaining to the removal of seized property are not mandatory in the case of real property and appurtenances to the real property.

§61-8C-9. Procedures for forfeiture.

    (a) (1) Any proceeding wherein the state seeks forfeiture of property subject to forfeiture under this article shall be a civil proceeding. A petition for forfeiture may be filed on behalf of the state and any law-enforcement agency making a seizure under this article by the prosecuting attorney of a county or duly appointed special prosecutor.

    (2) A petition for forfeiture may be filed and proceedings held thereon in the circuit court of the county wherein the seizure was made, the real property subject to forfeiture is situate or the circuit court of the county wherein any owner of the property subject to forfeiture may reside.

    (3) Any civil trial stemming from a petition for forfeiture brought under this chapter at the demand of either party shall be by jury.

    (4) A petition for forfeiture of the seized property shall be filed within ninety days after the seizure of the property in question. The petition shall be verified by oath or affirmation of a law-enforcement officer representing the law-enforcement agency responsible for the seizure or the prosecuting attorney and shall contain the following:

    (i) A description of the property seized;

    (ii) A statement as to who is responsible for the seizure;

    (iii) A statement of the time and place of seizure;

    (iv) The identity of the owner or owners of the property, if known;

    (v) The identity of the person or persons in possession of the property at the time seized, if known;

    (vi) A statement of facts upon which probable cause for belief that the seized property is subject to forfeiture pursuant to the provisions of this article is based;

    (vii) The identity of all persons or corporations having a perfected security interest or lien in the subject property, as well as the identity of all persons or corporations known to the affiant who may be holding a possessory or statutory lien against the property;

    (viii) A prayer for an order directing forfeiture of the seized property to the state and vesting ownership of the property in the state.

    (b) At the time of filing or as soon as practicable thereafter, a copy of the petition for forfeiture shall be served upon the owner or owners of the seized property, as well as all holders of a perfected security interest or lien or of a possessory or statutory lien in the same class, if known. Should diligent efforts fail to disclose the lawful owner or owners of the seized property, a copy of the petition for forfeiture shall be served upon any person who was in possession or alleged to be in possession of the property at the time of seizure, where that person's identity is known. The service shall be made pursuant to the provisions of the West Virginia Rules of Civil Procedure. Any copy of the petition for forfeiture so served shall include a notice substantially as follows:
    "To any claimant to the within described property: You have the right to file an answer to this petition setting forth your title in, and right to possession of, the property within thirty days from the service hereof. If you fail to file an answer, a final order forfeiting the property to the state will be entered, and such order is not subject to appeal."

    If no owner or possessors, lien holders or holders of a security interest are found, then the service may be by Class II legal publication in accordance with the provisions of article three, chapter fifty-nine of this code and the publication area shall be the county wherein the property was located at the time of seizure and the county wherein the petition for forfeiture is filed.

    (c) In addition to the requirements of subsection (b) of this section, the prosecuting attorney, or law-enforcement officer upon whose oath or affirmation the petition for forfeiture is based, is responsible for the publication of an additional notice that a petition for forfeiture has been filed. The additional notice shall be published by Class II legal advertisement in accordance with article three, chapter fifty-nine of this code. The publication area shall be the county wherein the property was seized and the county wherein the petition for forfeiture is filed. The additional notice shall advise any claimant to the property of the right to file a claim on or before the date set forth in the notice, which date may not be less than thirty days from the date of the first publication. This notice shall specify that any claim must clearly state the identity of the claimant and an address where legal process can be served upon that person. This notice shall also contain the following information:

    (1) A description of the property seized;

    (2) A statement as to who is responsible for the seizure;

    (3) A statement of the time and place of seizure;

    (4) The identity of the owner or owners of the property, if known;

    (5) The identity of the person or persons in possession of the property at the time of seizure, if known;

    (6) A statement that prayer for an order directing forfeiture of the seized property to the state and vesting ownership of the property in the state shall be requested of the court.

    (d) If no answer or claim is filed within thirty days of the date of service of the petition pursuant to subsection (b) of this section, or within thirty days of the first publication pursuant to subsection (b) of this section, the court shall enter an order forfeiting the seized property to the state. If any claim to the seized property is timely filed, a time and place shall be set for a hearing upon such claim. The claimant or claimants shall be given notice of the hearing not less than ten days prior to the date set for the hearing.

    (e) At the hearing upon the claim or claims, the state has the burden of proving by a preponderance of the evidence that the seized property is subject to forfeiture pursuant to the provisions of this chapter.

    (f) Any order forfeiting property to the state and entered pursuant to this section perfects the state's right, title and interest in the forfeited property and relates back to the date of seizure: Provided, That the circuit court shall make specific findings in its final order with respect to whether probable cause to seize the property existed at the time of the seizure in any proceeding under this article.

    (g) It is unlawful for any property owner or holder of a bona fide security interest or other valid lien holder to transfer or attempt to transfer any ownership interest or security interest in seized property with the intent to defeat the purpose of this article during the pendency of a forfeiture proceeding. The court wherein the petition for forfeiture is filed may enjoin a property owner or holder of a security interest or other lien holder from making a transfer should one come to its attention. Any such transfer which is made in violation of the provisions of this subsection has no effect upon an order of the court forfeiting seized property to the state, if a notice of lis pendens is filed prior to the recording of the instrument of transfer.

    (h) The court may void any transfer of property which is subject to forfeiture and made before or after a forfeiture proceeding has been commenced, if the transfer was not to a bona fide purchaser without notice for value.

    (i) An appeal of a decision of the circuit court concerning a forfeiture proceeding brought pursuant to this chapter must be filed within one hundred twenty days of the date of entry of the final appealable order. The appellant shall give notice of intent to appeal within thirty days of the entry of the appealable order.

§61-8C-10. Disposition of forfeited moneys, securities or other negotiable instruments; distribution of proceeds.

    (a) When moneys, securities or other negotiable instruments are forfeited under the provisions of this article, the proceeds shall be distributed as follows:

    (1) Ten percent of the proceeds shall be tendered to the office of the prosecuting attorney which initiated the forfeiture proceeding;

    (2) The balance shall be deposited in a special Law-enforcement Investigation Fund. The fund may be placed in any interest-bearing depository insured by an agency of the federal government. The fund shall be administered by the Superintendent of the State Police or his or her designee.

    (b) Funds may not be expended from the special Law-enforcement Investigation Fund except as follows:

    (1) The funds shall only be expended at the direction of the Superintendent of the State Police and in accordance with the provisions of section fifteen, article two, chapter five-a of this code and the provisions of subsection (j), section two, article two, chapter twelve of this code;

    (2) If funds belong to the office of the prosecuting attorney of any county in which the special fund has been created, the funds therein may only be expended in the manner provided in sections four and five, article five, chapter seven of this code; and

§61-8C-11. Disposition of other forfeited property; distribution of proceeds.

    (a) When property other than that referred to in section seven of this article is forfeited under this article, the circuit court ordering the forfeiture, upon application by the prosecuting attorney or the Superintendent of the State Police or his designee, may direct that:

    (1) Title to the forfeited property be vested in the Law-enforcement Agency so petitioning; or

    (2) The Law-enforcement Agency responsible for the seizure retain the property for official use; or

    (3) The forfeited property shall be offered at public auction to the highest bidder for cash. Notice of the public auction shall be published as a Class III legal advertisement in accordance with article three, chapter fifty-nine of this code. The publication area shall be the county where the public auction will be held.

    (b) When a Law-enforcement Agency receives property pursuant to this section, the court may, upon request of the prosecuting attorney initiating the forfeiture proceeding, require the Law-enforcement Agency to pay unto the office of the prosecuting attorney a sum not to exceed ten percent of the value of the property received to compensate that office for actual costs and expenses incurred.

    (c) The proceeds of every public sale conducted pursuant to this section shall be paid and applied as follows: (1) The balance due on any security interest preserved by the court; (2) to the costs incurred in the storage, maintenance and security of the property and; (3) to the costs incurred in selling the property.

    (d) Any proceeds of a public sale remaining after distribution pursuant to subsection (c) of this section shall be distributed as follows:

    (1) Ten percent of the proceeds shall be tendered to the office of the prosecuting attorney who initiated the forfeiture proceeding.

    (2) The balance shall be deposited in a special Law-enforcement Investigation fund. This fund shall be administered by the Superintendent of the State Police or his designee and shall take the form of an interest-bearing account with any interest earned to be compounded to the fund. Any funds deposited in the special Law-enforcement Investigative Fund pursuant to this article shall be expended only to defray the costs of protracted or complex investigations, to provide additional technical equipment or expertise, to provide matching funds to obtain federal grants or for such other law-enforcement purposes as the Superintendent of the State Police or, designee, may determine appropriate: Provided, That these funds may not be utilized for regular operating needs.

    (e) If more than one Law-enforcement Agency was substantially involved in effecting the seizure and forfeiture of property, the court wherein the petition for forfeiture was filed shall equitably distribute the forfeited property among the law-enforcement agencies. If there is a public sale of the property pursuant to subsection (a) of this section, the court shall equitably distribute any proceeds remaining after distribution pursuant to subsection (c) and subdivision (1), subsection (d) of this section among such law-enforcement agencies for deposit into their individual special Law-enforcement Investigative Fund. Equitable distribution shall be based upon the overall contribution of the individual Law-enforcement Agency to the investigation which led to the seizure.

    (f) The state shall issue a title or registration certificate to any bona fide purchaser at a public sale of the property conducted pursuant to subsection (a) of this section for which title or registration is required by law. The state shall issue a title or registration certificate to the appropriate governmental body, upon the request of the Law-enforcement Agency receiving or electing to retain any forfeited property for which title or registration is required by law, pursuant to subsection (a) of this section.

    (g) Any funds expended pursuant to the provisions of this section, shall only be expended in the manner provided in subsection (b), section ten of this article.

    (h) Every prosecuting attorney or Law-enforcement Agency receiving forfeited property or proceeds from the sale of forfeited property pursuant to this article shall submit an annual report to the body which has budgetary authority over the agency. The report shall specify the type and approximate value of all forfeited property and the amount of proceeds from the sale of forfeited property received in the preceding year. A county or municipality may not use anticipated receipts of forfeited property in their budgetary process.

    (i) In lieu of the sale of any forfeited property subject to a bona fide security interest preserved by an order of the court, the Law-enforcement Agency receiving the forfeited property may pay the balance due on any security interest preserved by the court from funds budgeted to the office or department or from the special fund and retain possession of the forfeited property for official use pursuant to subsection (a) of this section.

    (j) In every case where property is forfeited, disposition of the forfeited property, in accordance with this article, shall be made within six months of the date upon which the court of jurisdiction orders forfeiture. Should the office or agency receiving the property fail either to place the property in official use or dispose of the property in accordance with law, the court of jurisdiction shall cause disposition of the property to be made with any proceeds there from to be awarded to the state.

    (k) A disposition may not occur until all applicable periods for filing a notice of intent to appeal has expired and a party in interest has not filed a notice. The filing of the notice of intent to appeal shall stay any such disposition until the appeal has been finally adjudicated or until the appeal period of one hundred eighty days has expired without an appeal having actually been taken or filed, unless a valid extension of the appeal has been granted by the circuit court under the provisions of section seven, article four, chapter fifty-eight of this code.

    (l) The special Law-enforcement Investigative Funds of each Law-enforcement Agency may be placed in an interest-bearing depository insured by the federal government.



 

    NOTE: The purpose of this bill is to add language to the code to provide for the seizure of assets and other real property used for the exploitation of children and mirrors current code related to the forfeiture of assets and real property in drug trafficking investigations. It adds the term “lascivious” and to the sexually explicit conduct definitions under §61-8C-1 to more closely resemble the Federal Statute by adding the word lascivious and to allow prosecution for child erotica images that serve a sexual purpose (See United States v Knox (1994)). A new definition of “Child Erotica is also added. The criminal penalty is enhanced and a section was added to §61-8C-3 providing for a misdemeanor offense relating to child erotica material.




    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §61-8C-6, §61-8C-7, §61-8C-8, §61-8C-9, §61-8C-10, §61-8C-11, and §61-8C-12 are new; therefore, it has been completely underscored.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature **