Senate Bill No. 31

(By Senators Blatnik, Bowman, Ross, Sharpe and Anderson)

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[Introduced January 11, 1996; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections one and two, article eight-a, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the preparation of, distribution or exhibition of obscene matter to minors; definitions; and penalties.

Be it enacted by the Legislature of West Virginia:
That sections one and two, article eight-a, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE MATTER TO MINORS.

§61-8A-1. Definitions.

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:
(1) "Distribute" means to transfer possession of, whether with or without consideration.
(2) "Employee" means any individual who renders personal services in the course of a business, who receives compensation therefor at a fixed rate and who has no financial interest in the ownership or operation of the business other than his salary or wages.
(3) "Exhibit" means to display or offer for viewing, whether with or without consideration.
(4) "Knowingly" means to have knowledge or to be aware of the content or character of obscene matter.
(5) "Matter" means any book, magazine, newspaper or other printed or written material, or any picture, drawing or photograph, motion picture, or other visual representation, or any statue or other figure, or live conduct, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines or materials.
(6) "Minor" means any individual under the age of eighteen years.
(7) "Obscene matter" means to the average individual, applying contemporary state standards, matter which:
(a) Considered as a whole, appeals to the prurient interests;
(b) Depicts or describes in a patently offensive manner gratuitous acts of violence or degradation or ultimate sexual acts, both normal and perverted, actual or simulated, masturbation, sodomy, fellatio, cunnilingus, bestiality, sadism, excretory functions or lewd exhibition of the genitals; and
(c) Considered as a whole lacks serious literary, artistic, political or scientific value.
(8) "Person" means any individual, partnership, firm, association, corporation or other legal entity.
(9) "Prepare" means to produce, publish or print.
(10) "Public display" means the placing of material on or in a billboard, viewing screen, audio equipment, theater, marquee, newsstand, display rack, window, showcase, display case or similar public place so that the material within the meaning of "obscene matter" is easily visible or within hearing from a public thoroughfare, from the property of others or from commercial or business premises generally open to minors at the time of such placing.
§61-8A-2. Preparation, distribution or exhibition of obscene matter to minors; penalties.

If any person knowingly sends or causes to be sent or brings or causes to be brought into this state for distribution, exhibition, or public display, or in this state prepares, distributes, exhibits or makes a public display or offers to prepare, distribute, exhibit, or make a public display, or has in his possession with the intent to distribute, exhibit, or make a public display of any obscene matter, as defined in section one of this article, to a minor, he shall be or she is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned in the county jail not more than six months or both fined and imprisoned. A person convicted of a second or subsequent offense under this section shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in the county jail not more than one year or both fined and imprisoned.




NOTE: The purpose of this bill is to include gratuitous acts of violence and degradation within the definition of "obscene matter" so that the knowing distribution, exhibition or display of such matter, including audio materials, to minors is punishable as a misdemeanor.

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