H. B. 2807
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 17, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact article eight-a, chapter sixty-one of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section one,
article eight-b of said chapter; and to further amend said
article eight-b by adding thereto a new section, designated
section ten, all relating to public decency; defining terms,
including harmful matter and obscene matter; making it a
misdemeanor to distribute harmful matter to a minor; making
it a felony to distribute obscene matter to a minor;
providing penalties for repeat offenses; making it a
misdemeanor for a person to represent himself or herself as
a parent or guardian of a minor for the purpose of
distribution or perusal of harmful matter by a minor; making
it a misdemeanor to fail to preclude the perusal of harmful
matter by minors; making it a felony to knowingly or recklessly display obscene matter to a minor; identifying
defenses to such acts; identifying persons and institutions
exempt from criminal liability for such acts; making it a
felony to knowingly exhibit or distribute harmful matter to
a minor for the purpose of sexual seduction; making it a
felony to hire or use a minor in doing sexually explicit
conduct; authorizing a governmental entity or political
subdivision to seek an injunction against a present or
intended violation; providing for severance of any provision
of the article held to be invalid; making it a misdemeanor
to engage in sex acts, appear nude or fondle genitalia in a
public place; exempting certain acts in a public educational
institution modeling class or bona fide theatrical or public
performance presented for serious purposes; exempting
certain offenses from the sex offender registration act; and
providing for the imposition of fines for such offenses
which vary depending upon whether the offense is only
harmful, or also obscene, or a repeat offense.
Be it enacted by the Legislature of West Virginia:
That article eight-a, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that section one, article eight-b, chapter
sixty-one of said code be amended and reenacted; and that said
article eight-b be further amended by adding thereto a new section, designated section ten, 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:
(a) "Adult" means a person eighteen years of age or older.
(b) "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.
(c) "Distribute" means to transfer possession, transport,
transmit, exhibit, sell, rent, or advertise for sale or rent, to
the public whether with or without consideration.
(d) "Exhibit" means to show, expose, promote, or perform to
or for the public, or to offer to show, expose, promote, or
perform to or for the public.
(e) "Harmful matter" means any depiction, representation, or
description, in whatever form, of:
(1) Obscene matter, or
(2) Pornographic nudity or sexually explicit conduct that is harmful to minors.
(f) "Harmful to minors" means that matter, when judged with
reference to the age group of minors to which it is directed,
pandered, exhibited, displayed, or distributed, has the following
characteristics:
(1) An average adult, applying contemporary community
standards, would find that the matter, taken as a whole and with
respect to the intended or probable recipient minors, appeals to
the prurient interest, is intended to appeal to the prurient
interest, or is pandered to a prurient interest;
(2) An average adult, applying contemporary community
standards with respect to what is suitable for minors, would find
that the matter depicts, represents, or describes pornographic
nudity or sexually explicit conduct in a patently offensive way;
and
(3) A reasonable adult would find that the matter, taken as
a whole, lacks serious literary, artistic, political, or
scientific value for minors.
(g) "Knowledge of the character of the matter" means having
general knowledge of, reason to know, awareness of or notice of
the overall sexual content and character of matter as depicting,
representing, or describing obscene matter, pornographic nudity
or sexually explicit conduct. As used in this article, knowledge
of the character of matter does not require precise knowledge of the specific content of the matter.
(h) "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, equipment, machines, video
laser disc, computers and related equipment, 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.
(i) "Minor" means an unmarried person under eighteen years
of age.
(j) "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 contemporary adult community standards, would find depicts or describes, in a patently
offensive way, sexually explicit conduct consisting of an
ultimate sexual act, normal or perverted, actual or simulated, an
excretory function, masturbation, lewd exhibition of the
genitals, or sado-masochistic sexual abuse; and
(3) A reasonable person would find, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
(k) "Pandered" and "pander" mean that the circumstances of
production, presentation, marketing, promotion, sale,
dissemination, distribution, or advertisement indicate that the
matter was produced, exhibited, or commercially or publicly
exploited by a person for the sake of its prurient appeal.
(l) "Parent" includes a natural or adoptive parent,
guardian, or custodian.
(m) "Person" means any individual, partnership, firm,
association, corporation, or other legal entity, or any aider and
abettor or conspirator.
(n) "Peruse" means to view or read the contents of any
written or nonwritten material.
(o) "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.
(p) "Pornographic nudity" means the depiction or
representation of visibly discernible human genitalia or pubic
area, anus, post-pubertal female breast, or discernibly erect
male genitalia, when presented, promoted, pandered, or marketed
for sexual gratification, exploitation, or abuse.
§61-8A-2. Distribution to minor of harmful matter.
(a) Distribution to minors of harmful matter other than
obscene matter. -- Any person, with knowledge of the character of
the matter, who: (1) Knowingly or recklessly distributes or
offers to distribute to a minor any harmful matter that is
harmful to minors but is not obscene matter as defined in this
article; or (2) knowingly or recklessly permits or fails to
preclude the perusal by minors of harmful matter in his or her
custody and control, that is harmful to minors but is not obscene
matter; is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than five thousand dollars, or imprisoned
for not more than one year, or both fined and imprisoned;
(b) Distribution to minors of obscene matter. -- Any person,
with knowledge of the character of the matter, who: (1)
Knowingly or recklessly distributes or offers to distribute to a
minor any harmful matter that is obscene matter as defined in
this article; or (2) knowingly or recklessly permits or fails to
preclude the perusal by minors of harmful matter in his or her
custody and control, that is obscene matter, is guilty of a felony and, upon conviction thereof, shall be fined not more than
twenty-five thousand dollars, or imprisoned for not more than
five years, or both fined and imprisoned.
(c) Penalty for repeat offenses. -- Any person who is guilty
of violating subsection (a) of this section, where such violation
is a repeat offense, is guilty of a felony and, upon conviction
thereof, shall be fined not more than twenty-five thousand
dollars, or imprisoned for not more than five years, or both
fined and imprisoned. A repeat offense shall include a prior
conviction under an obscenity or child pornography or harmful to
minors law of this or another state or of the United States.
(d) Misrepresentation for purpose of distribution to minor
of harmful matter. -- Any person who knowingly misrepresents
himself to be the parent or guardian of a minor for the purpose
of distribution of harmful matter to or perusal of harmful matter
by a minor is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars, or
imprisoned not more than six months, or both fined and
imprisoned, on first offense and, for repeat offenses is guilty
of a felony and, upon conviction thereof, shall be fined not more
than ten thousand dollars, or imprisoned for not more than five
years, or both fined and imprisoned.
§61-8A-3. Display to minor of harmful matter.
(a) Display to minor of harmful matter other than obscene matter. -- Any person, with knowledge of the character of the
matter, who knowingly or recklessly displays to a minor harmful
matter that is harmful to minors but is not obscene matter, is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five thousand dollars, or imprisoned for not
more than one year, or both fined and imprisoned,
(b) Display to minor of obscene matter. -- Any person, with
knowledge of the character of the matter, who knowingly or
recklessly displays to a minor harmful matter that is obscene
matter, is guilty of a felony and, upon conviction thereof, shall
be fined not more than twenty-five thousand dollars, or
imprisoned for not more than five years, or both fined and
imprisoned.
(c) Penalty for repeat offenses. -- Any person who is
guilty of violating subsection (a) of this section, where such
violation is a repeat offense, is guilty of a felony and, upon
conviction thereof, shall be fined not more than twenty-five
thousand dollars, or imprisoned for not more than five years, or
both fined and imprisoned.
(d) Legal defenses. -- It is a defense under this section
if the harmful matter:
(1) Is 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) Is in an area segregated from nonharmful matter and
clearly marked with a sign prohibiting perusal by minors and is
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) Is enclosed in an opaque wrapper such that the lower two
thirds of the cover of the material is not exposed to view; or
(4) Is displayed behind a counter at which a store attendant
is usually present; or
(5) Is displayed or distributed after taking reasonable
steps to receive, obtain, check, or process a credit card, credit
card number, adult identification code or number, adult
subscription, verifiable parental or custodial permission, or
other technically or reasonably feasible means of verification of
age or marital status for excluding minors.
§61-8A-4. Exemptions from criminal liability.
The criminal provisions of sections two and three of this
article shall not be applied to:
(a) A bona fide school, public library, or museum, which is
displaying or distributing any harmful matter to a minor only
when the minor was accompanied by his or her parent or custodian
or had the knowing and written permission of the parent or
custodian as to the specific harmful matter displayed or
distributed to the minor;
(b) 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; or
(c) A person who did not know or have reason to know, and
could not reasonably have learned, that the person to whom the
harmful matter was distributed or displayed was a minor and who
took reasonable measures to ascertain the identity and age of the
minor; or
(d) A person who routinely distributes harmful matter by the
use of telephone or computer facilities 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 harmful matter.
§61-8A-5. Harmful matter used with intent to seduce minor.
(a) Use of harmful matter to seduce minor. -- Any person,
having knowledge of the character of the matter, who either knows
that a person is a minor or fails to exercise reasonable care in
ascertaining the age of a minor, and: (1) Distributes, exhibits
or offers to distribute or exhibit by any means, any harmful
matter to a minor; or (2) permits or fails to preclude the
perusal by a minor of harmful matter in that person's custody and
control, and such distribution, exhibition or failure to preclude
perusal is undertaken with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person
or of the minor, with the intent or for the purpose of
facilitating the sexual seduction or abuse of the minor, is
guilty of a felony and, upon conviction thereof, shall be fined
not more than twenty-five thousand dollars, or imprisoned for not
more than five years, or both fined and imprisoned.
(b) Penalty for repeat offenses. -- Any person who is guilty
of violating subsection (a) of this section, where such violation
is a repeat offense, is guilty of a felony and, upon conviction
thereof, shall be fined not more than twenty-five thousand
dollars, or imprisoned for not more than ten years, or both fined
and imprisoned.
§61-8A-6. Hiring, employing minors.
Every person who, with knowledge that a person is a minor or
who fails to exercise reasonable care in ascertaining the age of
a minor, hires, employs or uses such minor to do or assist in
doing sexually explicit conduct is guilty of a felony, and upon
conviction thereof, shall be fined not more than fifty thousand
dollars, or imprisoned for not more than ten years, or both fined
and imprisoned.
§61-8A-7. Equitable remedies.
Any governmental entity or political subdivision may apply
for injunctive relief in a court of competent equitable
jurisdiction to obtain a preliminary or permanent or both preliminary and permanent injunctions against any present,
intended, or imminent violation of this article and any person
may apply for a declaratory judgment as to the obscene, child
pornography, or harmful to minors nature of any matter or the
application of this article to any display or distribution of
matter, and such action shall be subject to applicable
constitutional and due process requirements and time scheduling
and shall receive priority on the docket of the court in which
the action is filed or heard and be subject to prompt judicial
hearing and expedited appellate review as required by state or
federal constitutional or statutory law.
§61-8A-8. Interpretation, authoritative construction, and
severability.
(a) If any term, definition, or application of this article
is declared or found to be unconstitutional, on its face or as
applied, either partially or totally, or invalid under state or
federal law, such provision shall be interpreted and construed in
accordance with constitutional and due process principles and the
provisions of this article shall be applied as so interpreted or
construed and the courts shall adopt any required constitutional
interpretations or constructions so as to save the statutes,
provisions, or applications thereof.
(b) If any phrase, clause, sentence, section, or provision
of this article, or application thereof to any person or circumstance, either partially or totally, is held invalid and
not susceptible to any reasonable constitutional interpretation
so as to save it, then that provision or application is severable
and such invalidity shall not affect any other provision or
application of this article which can be given effect without the
invalid part or application and to this end the provisions and
applications of this article are declared to be severable.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is
required:
(1) "Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as
might reasonably be expected under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a
person in fear of immediate death or bodily injury to himself or
herself or another person or in fear that he or she or another
person will be kidnapped; or
(c) Fear by a person under sixteen years of age caused by
intimidation, expressed or implied, by another person who is at
least four years older than the victim.
For the purposes of this definition "resistance" includes
physical resistance or any clear communication of the victim's
lack of consent.
(2) "Married", for the purposes of this article in addition
to its legal meaning, includes persons living together as husband
and wife regardless of the legal status of their relationship.
(3) "Mentally defective" means that a person suffers from a
mental disease or defect which renders that person incapable of
appraising the nature of his or her conduct.
(4) "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his or her
conduct as a result of the influence of a controlled or
intoxicating substance administered to that person without his or
her consent or as a result of any other act committed upon that
person without his or her consent.
(5) "Physically helpless" means that a person is unconscious
or for any reason is physically unable to communicate
unwillingness to an act.
(6) "Sexual contact" means any intentional touching, either
directly or through clothing, of the anus or any part of the sex
organs of another person, or the breasts of a female or
intentional touching of any part of another person's body by the
actor's sex organs, where the victim is not married to the actor
and the touching is done for the purpose of gratifying the sexual
desire of either party.
(7) "Sexual intercourse" means any act between persons not
married to each other involving penetration, however slight, of the female sex organ by the male sex organ or involving contact
between the sex organs of one person and the mouth or anus of
another person.
(8) "Sexual intrusion" means any act between persons not
married to each other involving penetration, however slight, of
the female sex organ or of the anus of any person by an object
for the purpose of degrading or humiliating the person so
penetrated or for gratifying the sexual desire of either party.
(9) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition.
(10) "Serious bodily injury" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(11) "Deadly weapon" means any instrument, device or thing
capable of inflicting death or serious bodily injury, and
designed or specially adapted for use as a weapon, or possessed,
carried or used as a weapon.
(12) "Forensic medical examination" means an examination
provided to a possible victim of a violation of the provisions of
this article by medical personnel qualified to gather evidence of
the violation in a manner suitable for use in a court of law, to
include: an examination for physical trauma; a determination of
penetration or force; a patient interview; and the collection and evaluation of other evidence that is potentially relevant to the
determination that a violation of the provisions of this article
occurred and to the determination of the identity of the
assailant.
(13) "Sexually oriented nudity" means the showing of the
human male or female genitals, pubic area, or anus, the showing
of the female breast below the top of the areola, or the showing
of the covered male genitals in a discernibly turgid state, when
presented, promoted, pandered, or marketed for sexual
gratification, exploitation or abuse.
(14) "Public place" means any location open or frequented by
the public, whether for commercial or public activities, or where
the public is present or invited to be present, or where a person
may reasonably be expected to be observed by members of the
general public or customers. Public places include, but are not
limited to, streets, sidewalks, parks, beaches, and business or
commercial establishments that are open to the public at large or
where entrance is invited or permitted for a cover charge or fee.
Public place shall not include premises used solely as private
residences, enclosed public restrooms, showers, locker or
dressing room facilities, enclosed motel rooms and hotel rooms
designed and intended for sleeping accommodations, doctors'
offices, portions of hospitals and similar places in which nudity
or exposure is necessarily and customarily expected outside of the home and the sphere of privacy is constitutionally protected
therein.
§61-8B-10. Public indecency, commercial nudity; penalties; exceptions.
(a) Public indecency. -- Every person who knowingly or
intentionally, in a public place:
(1) Engages in actual or simulated sexual intercourse,
masturbation, sodomy, bestiality, oral copulation, flagellation,
excretory functions, or other ultimate sex acts;
(2) Appears in a state of sexually oriented nudity or
engages in or promotes the lewd exhibition of the genitals or
female breast; or
(3) Fondles the genitalia of himself, herself or another
person, is guilty of the misdemeanor offense of public indecency
and, upon conviction thereof, shall be fined not more than five
thousand dollars, or imprisoned for not more than one year, or
both fined and imprisoned.
(b) Penalty for repeat offenses. -- Any person who is
guilty of violating subsection (a) of this section, where such
violation is a repeat offense, is guilty of a felony and, upon
conviction thereof, shall be fined not more than fifty thousand
dollars, or imprisoned for not more than five years, or both
fined and imprisoned.
(c) Exceptions. -- This section shall not apply to a person appearing in a state of nudity:
(i) In a modeling class operated by a public or proprietary
school licensed by the state or an accredited college, junior
college, or university; or,
(ii) A bona fide theatrical or other public performance
presented for serious literary, artistic, political, or
scientific purposes and not for the purpose of exploiting,
promoting, or pandering the sexual or prurient appeal of the
nudity involved.
(d) A conviction for an offense under this section shall not
constitute a qualifying offense for purposes of the sex offender
registration act.
NOTE: The purpose of this bill is to strengthen the state's
laws governing exposure of children to harmful and obscene matter
and using children to engage in sexually explicit conduct. The
bill also bans nude dancing in public places.
§61-8A has been completely rewritten; therefore, strike- throughs and underscoring have been omitted.
§61-8B-1 - Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.
§61-8B-10 is new; therefore, strike-throughs and
underscoring have been omitted.