Senate Bill No. 133
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
[Passed March 10, 2000; in effect ninety days from passage.]
AN ACT 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
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,
offering to distribute or displaying obscene matter to a
minor; creating felony for distributing or displaying obscene
matter to a minor with intent to seduce; establishing
defenses; establishing exemptions from criminal liability;
creating felony for using a minor in certain circumstances:
and providing penalties.
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one, as amended, be repealed; and that sections one, two, three,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.
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
(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.
(d)"Distribute" means to transfer possession, transport, transmit, sell or rent, whether with or without consideration.
(e) "Employee" means any individual who renders personal
services in the course of a business, who receives compensation and
who has no financial interest in the ownership or operation of the
business other than his salary or wages.
(f) "Internet" means the international computer network of
both federal and nonfederal interoperable packet switched data
(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.
(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.
(i) "Minor" means an unemancipated person under eighteen years
(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 community standards, would
find depicts or describes, in a patently offensive way, sexually
(3) A reasonable person would find, taken as a whole, lacks
serious literary, artistic, political or scientific value.
(k) "Parent" includes a biological or adoptive parent, legal
guardian or legal custodian.
(l) "Person" means any adult, partnership, firm, association,
corporation or other legal entity.
(m) "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
exhibition of the genitals.
§61-8A-2. Distribution and display to minor of obscene matter; penalties; defenses.
(a) Any adult, with knowledge of the character of the matter,
who knowingly and intentionally 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 five years, or both.
(b) It is a 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 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 was not exposed to view; or
(4) Was displayed or distributed after taking reasonable steps
to receive, obtain or check an adult identification card, such as
a driver's license or other technically or reasonably feasible
means of verification of age; or
(c) It is a defense to an alleged violation under this section
that a parent had taken reasonable steps to limit the minor's access to the obscene matter.
§61-8A-3. Exemptions from criminal liability.
The criminal provisions of section two of this article do not
(a) A bona fide school, in the presentation of local or state
(b) A public library, or museum, which is displaying or
distributing any obscene matter to a minor only when the minor was
accompanied by his or her parent;
(c) 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
(d) 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
(e) A person who routinely distributes obscene matter by the
use of telephone, computer network or the internet 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; or
(f) A radio or television station, cable television service or
other telecommunications service regulated by the federal
§61-8A-4. Use of obscene matter with intent to seduce minor.
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 the
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.
§61-8A-5. Employment or use of minor to produce obscene matter or
assist in doing sexually explicit conduct; penalties.
Any 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
or to do or assist in doing any sexually explicit conduct, 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.