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.