H. B. 4469
(By Delegate Houston (By Request))
[Introduced February 9, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight-g, relating to
the distribution of obscenity and providing criminal penalties
therefor; definitions; and what constitutes evidence of
Be it enacted by the Legislature of West Virginia:
That chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article eight-g, to read as
ARTICLE 8G. CRIMES AGAINST EXHIBITING PORNOGRAPHY.
The following definitions apply in this article:
(a) "Obscene" means matter which:
(1) The average adult, applying contemporary adult community
standards, would find, taken as a whole, that it appeals to the
prurient interest; and
(2) The average adult, applying contemporary adult community
standards, would find that it depicts or describes sexual conduct
in a patently offensive way; and
(3) A reasonable adult would find, taken as a whole, that it
lacks serious literary, artistic, political or scientific value.
(b) "Matter" means any two or three dimensional item,
article, exhibition or live performance, including: any book,
magazine, newspaper, film, video recording or other visual or
written material; or any picture, drawing, photograph, 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
messages; or any public or commercial live exhibition performed for consideration or before an audience of one or more.
(c) "Person" means any individual, partnership, firm,
association, corporation or other legal entity.
(d) "Distribute" means to transfer possession, transport,
transmit, import into or export out of the state, promote, exhibit,
sell, rent or advertise for distribution or assist, offer or agree
to do so, whether to members of the public or for consideration.
(e) "Knowledge" means having knowledge of or reason to know
or being aware of the overall sexual character of the matter or
(f) "Exhibit" means to show, expose, promote or perform for
the public or before an audience of one or more.
(g) "Sexual conduct" means ultimate sexual acts (both normal
and perverted, actual and simulated), including sexual intercourse,
sodomy, oral copulation, sexual bestiality, sexual sadism or
masochism, masturbation, eroticized excretory functions and lewd
exhibition of the genitals.
§61-8G-2. Distribution Of obscene matter.
Every person, with knowledge of the character of the matter,
who knowingly sends or causes to be sent, or brings or causes to be
brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, reproduces or prints with intent to
distribute or to exhibit to others or who offers to distribute,
distributes or exhibits to others, any obscene matter is guilty of
a misdemeanor and, shall be fined an amount not to exceed five
thousand dollars or be imprisoned for a term not to exceed one
year, or both, on first offense, and for second and subsequent
offenses is guilty of a felony and, shall be fined an amount not to
exceed ten thousand dollars or be imprisoned for a term not to
exceed three years, or both.
§61-8G-3. 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 injunction
against any present, intended or imminent violation of this article
and any person may apply for a declaratory judgment as to the
obscene nature of any matter or the application of this article to
any display or distribution of matter and such actions 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 and be subject to prompt
judicial hearing and expedited appellate review as required by state or federal constitutional or statutory law.
§61-8G-4. Evidence of obscenity.
Where circumstances of production, presentation, marketing,
promotion, sale, dissemination, distribution or publicity indicate
that matter is being produced or commercially exploited by the
defendant for the sake of its prurient appeal, such evidence is
probative with respect to the obscenity of the matter and can
justify the conclusion that the matter lacks serious literary,
artistic, political or scientific value.
NOTE: The purpose of this bill is to provide criminal
sanctions for the distribution of pornography. The bill provides
definitions for various terms, provides criminal penalties and
prescribes circumstances that may be construed as evidence of what
This article is new; therefore strike-throughs and
underscoring have been omitted.