ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 133
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 3, 2000.]
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A BILL to repeal sections six and seven, article eight-a, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections one, two, three, four and five of said article, all relating to the distribution and display of obscene matter to minors; defining terms; creating felony for distributing or displaying obscene matter to a minor; creating felony for distributing or displaying obscene matter to a minor with intent to seduce; penalties; establishing defenses; establishing exemptions from criminal liability; and creating felony for hiring a minor in certain circumstances.

Be it enacted by the Legislature of West Virginia:
That sections six and seven, article eight-a, chapter sixty- one of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be repealed; and that sections one, two, three, four and five of said article be amended and reenacted, all to read as follows:
ARTICLE 8A. PREPARATION, DISTRIBUTION OR DISPLAY 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) "Computer network" means the interconnection of hardware or wireless communication lines with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
(c) "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.
(1) (d) "Distribute" means to transfer possession, of transport, transmit, sell or rent, whether with or without consideration.
(2) (e) "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.
(f) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.
(g) "Knowledge of the character of the matter" means having awareness of or notice of the overall sexual content and character of matter as depicting, representing, or describing obscene matter. (4) "Knowingly" means to have knowledge or to be aware of the content or character of obscene matter.
(5)(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, video laser disc, 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. 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) (i) "Minor" means any individual an unmarried person under the age of eighteen years of age.
(7) (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) Depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, masturbation, sodomy, fellatio, cunnilingus, bestiality,

lewd exhibition of the genitals, or sadomasochistic sexual abuse; and
(3) Taken as a whole, lacks serious literary, artistic, political or scientific value. 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 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.
(k) "Parent" includes a natural or adoptive parent, guardian, or custodian.
(8) (l) "Person" means any individual adult, 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, theatre, 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 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. Distribution and display to minor of obscene matter; 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, 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 to a minor, he shall be 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 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.
(a) Any adult, with knowledge of the character of the matter, who knowingly and willfully distributes, offers to distribute, or displays to a minor any obscene matter is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars, or confined in a state correctional facility for not more than two years, or both.
(b) It is a complete defense to a prosecution under the provisions of this section that the obscene matter:
(1) Was 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) Was 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) Was enclosed in an opaque wrapper such that the lower two thirds of the cover of the material is not exposed to view; or
(4) Was displayed behind a counter at which a store attendant is usually present; or
(5) Was 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, or other technically or reasonably feasible means of verification of age or martial status for excluding minors.
(c) The provisions of this section shall apply to the internet and computer networks only if obscene matter is distributed or displayed: (i) With the intent of or for the purpose of facilitating the sexual seduction or abuse of one or more specific minors; and (ii) the person distributing or displaying the obscene matter had knowledge of the minor's status as a minor.

§61-8A-3. Exemptions from criminal liability.
No employee shall be guilty of a violation of this article when such employee is a projectionist, ticket taker, usher, or when such employee distributes, prepares or exhibits displays obscene matter while acting within the scope of his regular employment.

The criminal provisions of section two of this article do not apply to:
(a) A bona fide school, public library, or museum, which is displaying or distributing any obscene matter to a minor if the minor was accompanied by his or her parent or custodian;
(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;
(c) A person who did not know or have reason to know, and could not reasonably have learned, that the person to whom the obscene matter was distributed or displayed was a minor and who took reasonable measures to ascertain the identity and age of the minor;
(d) A person who routinely distributes obscene 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 obscene matter;
(e) A radio or television station licensed by the federal communications commission; or
(f) A projectionist, ticket-taker, usher or other similar employee.

Any person who distributes or exhibits obscene matter, or possesses obscene matter with the intent to distribute or exhibit the same in the course of his business, is presumed to do so with knowledge of its content or character.

Any adult, having knowledge of the character of the matter, who knows that a person is a minor and distributes, offers to distribute, or displays by any means, any obscene matter to a minor, and such distribution, offer to distribute, or display is undertaken 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 confined in a state correctional facility for not more than five years, or both. For a second and each subsequent commission of such offense, such person is guilty of a felony and, upon conviction, shall be fined not more than fifty thousand dollars or confined in a state correctional facility for not more than ten years, or both.

No person shall be guilty of distributing or exhibiting obscene matter to a minor when such person has reasonable cause to believe that the minor involved was eighteen years of age or more and such minor exhibited to such person a driver's license, draft card or other official or apparently official document purporting to establish that such minor was eighteen years of age or more.
Every adult 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 produce obscene matter is guilty of a felony and, upon conviction thereof, shall be fined not more than fifty thousand dollars, or confined in a state correctional facility for not more than ten years, or both.