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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
House Bill 5191
By Delegate Mazzocchi
[Introduced January 25, 2024; Referred to the Committee on the Judiciary]
A BILL to amend and reenact sections §61-8A-1, §61-8A-2 and §61-8A-3 of the Code of West Virginia, 1931, as amended, relating to distribution and display to minor of obscene matter; penalties; defenses and exemptions; providing that exemptions do not apply to public libraries or museums with regard minors in elementary or middle schools; and requiring public libraries or museums to block access to obscene matter to minors in elementary or middle schools who have a library card or a county or state board of education that supplies a tablet or notepad or a laptop computer.
Be it enacted by the Legislature of West Virginia:
When used in this article, the following words, and any variations thereof required by the context, shall have the meaning ascribed to them in this section:
(a) "Adult" means a person 18 years of age or older.
(b) "Computer" means an electronic, magnetic, optical, electrochemical or other high-speed data processing device performing logical, arithmetic or storage functions and includes any data storage facility or communication facility directly related to or operating in conjunction with such device. As used in this article, computer includes file servers, mainframe systems, desktop personal computers, laptop personal computers, tablet personal computers, cellular telephones, game consoles and any electronic data storage device or equipment. The term "computer" includes any connected or directly related device, equipment or facility which enables the computer to store, retrieve or communicate computer programs, computer data or the results of computer operations to or from a person, another computer or another device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator or other similar device.
(c) "Computer network" means the interconnection of hardware or wireless communication lines with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
(d) "Display" means to show, exhibit or expose matter, in a manner visible to general or invited public, including minors. As used in this article, display shall include the placing or exhibiting of matter on or in a billboard, viewing screen, theater, marquee, newsstand, display rack, window, showcase, display case or similar public place.
(e) "Distribute" means to transfer possession, transport, transmit, sell or rent, whether with or without consideration.
(f) "Employee" means any individual who renders personal services in the course of a business, who receives compensation and who has no financial interest in the ownership or operation of the business other than his or her salary or wages.
(g) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.
(h) "Knowledge of the character of the matter" means having awareness of or notice of the overall sexual content and character of matter as depicting, representing or describing obscene matter.
(i) "Matter" means any visual, audio, or physical item, article, production transmission, publication, exhibition, or live performance, or reproduction thereof, including any two- or three- dimensional visual or written material, film, picture, drawing, video, graphic, or computer generated or reproduced image; or any book, magazine, newspaper or other visual or written material; or any motion picture or other pictorial representation; or any statue or other figure; or any recording, transcription, or mechanical, chemical, or electrical reproduction; or any other articles, video laser disc, computer hardware and software, or computer generated images or message recording, transcription, or object, or any public or commercial live exhibition performed for consideration or before an audience of one or more.
(j) "Minor" means an person under eighteen years of age or a person representing himself or herself to be a minor. Any prosecution under this article relating to a victim who is representing himself or herself to be a minor shall be limited to investigations being conducted or overseen by law enforcement.
(k) "Obscene matter" means matter that:
(1) 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;
(2) An average person, applying community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct, or that a particular item is lascivious or pornographic in nature; and
(3) A reasonable person would find, taken as a whole, lacks serious literary, artistic, political or scientific value.
(l) "Parent" includes a biological or adoptive parent, legal guardian or legal custodian.
(m) "Person" means any adult, partnership, firm, association, corporation or other legal entity.
(n) "Sexually explicit conduct" means an ultimate sexual act, normal or perverted, actual or simulated, including sexual intercourse, sodomy, oral copulation, sexual bestiality, sexual sadism and masochism, masturbation, excretory functions and lewd exhibition of the genitals.
(a) (1) Any adult, with knowledge of the character of the matter, who knowingly and intentionally distributes, offers to distribute, or displays to a minor any obscene matter, is guilty of a felony and, upon conviction thereof, shall be fined not more than $25,000, or confined imprisoned in a state correctional facility for not more than five years, or both fined and imprisoned.
(2) Any adult, with knowledge of the character of the matter, who knowingly and intentionally uses interactive computer services to display obscenity in a manner that makes it available to a minor under the age of 18 years is guilty of a felony and, upon conviction thereof, shall be fined not more than $25,000, or imprisoned in a state correctional facility for not more than five years, or both fined and imprisoned.
(3) Any person using misleading domain name, words, or digital images on the internet with intent to deceive a minor under the age of 18 years into viewing harmful or obscene material is guilty of a felony and, upon conviction thereof, shall be fined not more than $25,000, or imprisoned in a state correctional facility for not more than five years, or both fined and imprisoned.
(b) It is a defense to a prosecution under the provisions of this section that the obscene matter:
(1) Was displayed in an area from which minors are physically excluded and the matter so located cannot be viewed by a minor from nonrestricted areas; or
(2) Was covered by a device, commonly known as a "blinder rack," such that the lower two thirds of the cover of the material is not exposed to view; or
(3) Was enclosed in an opaque wrapper such that the lower two thirds of the cover of the material was not exposed to view; or
(4) Was displayed or distributed after taking reasonable steps to receive, obtain or check an adult identification card, such as a driver's license or other technically or reasonably feasible means of verification of age.
(c) A public library, or museum that displays any obscene matter and that issues a library card and a county or state board of education that supplies a tablet or notepad laptop computer to minors in elementary or middle schools shall block access by those minors to the obscene matters.
(d)
(c) (d) It is a defense to an alleged violation under this section that a parent had taken reasonable steps to limit the minor's access to the obscene matter.
The criminal provisions of §61-8A-2 of this code do not apply to:
(a) A bona fide school, in the presentation of local or state approved curriculum: Provided, That this exemption does not apply to elementary or middle schools levels;
(b) A public library, or museum, which is displaying or distributing any obscene matter to a minor only when the minor was accompanied by his or her parent: Provided, That this exemption does not apply to elementary or middle schools levels;
(c) A licensed medical or mental health care provider, or judicial or law-enforcement officer, during the course of medical, psychiatric, or psychological treatment or judicial or law-enforcement activities;
(d) A person who did not know or have reason to know, and could not reasonably have learned, that the person to whom the obscene matter was distributed or displayed was a minor and who took reasonable measures to ascertain the identity and age of the minor;
(e) A person who routinely distributes obscene matter by the use of telephone, computer network or the Internet and who distributes such matter to any minor under the age of eighteen years after the person has taken reasonable measures to prevent access by minors to the obscene matter; or
(f) A radio or television station, cable television service or other telecommunications service regulated by the federal communications commission.
NOTE: The purpose of this bill is to provide that exemptions to distribution and display to minor of obscene matters do not apply to public libraries or museums with regard minors in elementary or middle schools. The bill also requires public libraries or museums to block access to obscene matter to minors in elementary or middle schools who have a library card or a county or state board of education that supplies a tablet or notepad or a laptop computer.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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