H. B. 2588


(By Delegates Henderson, Harrison, Faircloth,
Louisos, Pino, Johnson and Trump)

[Introduced March 15, 1993; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact section five, article eight, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to defining proscribed sexual acts committed in public; increasing criminal penalties.

Be it enacted by the Legislature of West Virginia:
That section five, article eight, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.

§61-8-5. Houses of ill fame and assignation; prostitution law reform; penalties; jurisdiction of courts.

(a) Any person who shall keep, set up, maintain, or operate any house, place, building, hotel, tourist camp, other structure, or part thereof, or vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall own any place, house, hotel, tourist camp, other structure, orpart thereof, or trailer or other conveyance knowing the same to be used for the purpose of prostitution, lewdness, or assignation, or who shall let, sublet, or rent any such place, premises, or conveyance to another with knowledge or good reason to know of the intention of the lessee or rentee to use such place, premises, or conveyance for prostitution, lewdness, or assignation; or who shall offer, or offer to secure, another for the purpose of prostitution, or for any other lewd or indecent act; or who shall receive or offer or agree to receive any person into any house, place, building, hotel, tourist camp, or other structure, or vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there for such purpose; or who for another or others shall direct, take, or transport, or offer or agree to take or transport, or aid or assist in transporting, any person to any house, place, building, hotel, tourist camp, other structure, vehicle, trailer, or other conveyance, or to any other person with knowledge or having reasonable cause to believe that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any acts herein prohibited, shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period not less than six months nor more than one year, and by a fine of not less than one hundred thousand dollars and not to exceed two thousand five hundred fifty dollars, and upon conviction for anysubsequent offense under this section shall be punished by imprisonment in the penitentiary for a period of not less than one year nor more than five years.
(b) Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any of the acts herein prohibited, shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than sixty days nor more than six months, and by a fine of not less than fifty dollars and not to exceed one hundred dollars; and upon conviction for the second offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years.
The subsequent offense provision shall apply only to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute.
(c) All leases and agreements, oral or written, for letting, subletting, or renting any house, place, building, hotel, tourist camp, or other structure which is used for the purpose of prostitution, lewdness, or assignation, shall be void from and after the date any person who is a party to such an agreement shall be convicted of an offense hereunder. The term "tourist camp" shall include any temporary or permanent buildings, tents, cabins, or structures, or trailers, or other vehicles which are maintained, offered, or used for dwelling or sleeping quarters for pay.
(d) In the trial of any person, charged with a violation of any of the provisions of this section, testimony concerning the reputation or character of any house, place, building, hotel, tourist camp, or other structure, and of the person or persons who reside in or frequent same, and of the defendant or defendants, shall be admissible in evidence in support of the charge. Justices of the peace Magistrates shall have concurrent jurisdiction with circuit intermediate, and criminal courts to try and determine the misdemeanors set forth and described in this section.
Evidence in excess of the usual twelve month limitation on misdemeanors shall be specifically allowed and shall be considered according to the rules of law regarding a felony.
(e) As used in this section:
"Assignation" means the act of arranging for sexual acts to take place between two or more persons or to provide a place ofbusiness or facilities which promote, encourage or allow anonymous or planned sexual acts.
"House of ill fame" means a house, place, building, hotel, tourist camp, other structure, or part thereof, or vehicle, trailer or other conveyance which is used for the purpose of prostitution, lewdness or assignation.
"Lewd act" means an act of lewdness to include, but not be limited to, the public display of live sexual acts or live imitation of sexual acts, the public display of live human nudity, or the photography of sexual acts by persons under the age of eighteen years or public display of sexual acts by persons under the age of eighteen years or possession of any material depicting sexual acts by persons under the age of eighteen years.
"Lewdness" means vulgar or obscene activity which is offensive to public sensibilities as defined herein as a lewd act.
"Obscene" means any material or performance which: (i) The average person applying contemporary community standards would find that the work taken as a whole, appeals to the prurient interest; and (ii) the work depicts or describes, in a patently offensive way, sexual conduct of any kind; and (iii) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
"Prostitution" means the solicitation for, or the acceptance of payment for, sexual acts.
"Sexual act" means sexual contact or sexual intercourse asthose terms are defined in section one, article eight-b of this chapter and also includes sexual contact and sexual intercourse between married persons or between persons or animals; sexual intercourse as that term is defined in section one, article eight-b of this chapter, and sexually explicit conduct as that term is defined in section one, article eight-c of this chapter.
"Subsequent offense" means a second or subsequent offense which may occur on the same day and appear on the same criminal complaint as the first offense.



NOTE: The purpose of this bill is to specify sexual acts proscribed in public, and to restrict sexual activity in businesses which allow or promote such acts.

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