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Introduced Version Senate Bill 13 History

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Senate Bill No. 13

(By Senator McKenzie)

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[Introduced February 9, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend and reenact §61-8-28 of the Code of West Virginia, 1931, as amended, relating to criminal invasion of privacy generally; adding the criminal offense of voyeurism where an individual has an expectation of privacy; providing misdemeanor penalties; providing an exception for law-enforcement and security surveillance; and limiting a criminal action pursuant to said section to three years.

Be it enacted by the Legislature of West Virginia:
That §61-8-28 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-28. Criminal invasion of privacy; penalties.

(a) For the purposes of this section, the words or terms defined in this subsection have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context:
(1) "A person fully or partially nude" means a male or female who is either clothed or unclothed so that: (A) All or any part of his or her genitals, pubic area or buttocks is visible; or (B) in the case of a female only, a part of a nipple of her breast is visible and is without a fully opaque covering;
(2) "To visually portray" a person means to create a reproducible image of that person by means of:
(A) A photograph;
(B) A motion picture;
(C) A video tape;
(D) A digital recording; or
(E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person; and
(3) "Place where a reasonable person would have an expectation of privacy" means a place where a reasonable person would believe that he or she could, in privacy, be fully or partially nude without expecting that the act of exposing his or her body was being viewed or visually portrayed by another person; and
(4) "View" means the looking upon another person with the unaided eye or with any device designed or intended to improve visual acuity, for the purpose of arousing or gratifying the sexual desire of any person.
(b) It is unlawful for a person to knowingly view or visually portray another person without that other person's knowledge, while that other person is fully or partially nude and is in a place where a reasonable person would have an expectation of privacy. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both fined and imprisoned.
(c) Any person who displays or distributes visual images of another person with knowledge that said visual images were obtained in violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both fined and imprisoned.
(d) A person who is convicted of a second or subsequent violation of subsection (b) or (c) of this section is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than one year nor more than five years or fined not more than ten thousand dollars, or both fined and imprisoned.
(e) This section does not apply to:
(1) The visual portrayal by law-enforcement officers during a lawful criminal investigation;
(2) The visual portrayal by law-enforcement officers or by personnel of the Department of Corrections or of a local jail or correctional facility for security purposes or during an investigation of alleged misconduct by a person in the custody of the Department of Corrections or the local jail or correctional facility;
(3) Security surveillance for the purposes of decreasing or prosecuting theft, shoplifting or other security surveillance measures in bona fide business establishments.
(f) Prosecutions under this section must be commenced within the following periods of limitation:
(1) Three years from the date the viewing, or the original visual portrayal occurred; or
(2) If the person who was viewed or visually portrayed did not realize at the time that he or she was being viewed or visually portrayed, within three years of the time the person who was viewed or visually portrayed first learns that he or she was viewed or visually portrayed.




NOTE: The purpose of this bill is to protect the privacy rights of an individual by making it a criminal offense to engage in voyeurism where an individual has expectation of privacy. This bill makes an exception for law-enforcement and security surveillance. This bill also limits a criminal action pursuant to the section to three years.

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