H. B. 4596
(By Delegates Staton, Wills, Hines and Flanigan)
February 21, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nine, article eight, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to public indecency
and indecent exposure; and providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That section nine, article eight, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-9. Legislative findings; public indecency; indecent
(a) The Legislature finds:
(1) The supreme court has found that a substantial
governmental interest exists in protecting societal order and
morality and that because of this governmental interest, a law
aimed at regulating public conduct such as nudity, is constitutionally permissible despite its incidental impact on
(2) The courts have found that nude dancing establishments
are frequently used for unlawful sexual activities, including
prostitution, and that such activity encourages prostitution,
sexual assaults and attracts other criminal activity.
(3) There is convincing documented evidence that
sexually-oriented businesses, including nude dancing
establishments, because of their very nature, have a deleterious
effect on both the existing businesses around them and the
surrounding residential areas adjacent to them, causing increased
crime and the down grading of property values.
(4) It is recognized that sexually-oriented businesses,
including nude dancing establishments, have serious objectionable
operational characteristics thereby contributing to urban blight
and downgrading the quality of life in the adjacent area.
(5) The Legislature desires to minimize and control the
above mentioned adverse effects and thereby protect the health,
safety and welfare of the citizenry; protect the citizens from
increased crime; preserve the property values and character of
surrounding neighborhoods; and deter the spread of urban blight.
(6) The purpose of this section is to regulate public
conduct and the public commercial exploitation of sex, without
any express or implied intent to suppress or prohibit any
legitimate speech or expression.
(b) A person is guilty of public indecency if the person, in
a public place, as defined in subsection (d) of this section,
knowingly or intentionally:
(1) Engages in sexual intercourse, masturbation, sodomy,
bestiality, oral copulation, flagellation, excretory functions or
other ultimate sex acts;
(2) Appears in a state of nudity; or
(3) Fondles his or her genitals or those of another person.
(c) A person is not guilty of public indecency if the person
makes intentional and reasonable attempts to conceal himself or
herself from public view while performing an excretory function,
and the person performs the function in an unincorporated area of
(d) As used in subsection (b) of this section:
(1) "Nudity" or "state of nudity" means the showing of the
bare human male or female genitals or pubic area with less than
a fully opaque covering, the showing of the female breast with
less than a fully opaque covering of the areola or the showing of
the covered male genitals in a discernibly turgid state.
"Nudity" or "state of nudity" does not include a mother in the
act of nursing the mother's baby; and
(2) "Public place" means any location frequented by the
public, where the public is present or likely to be present or
where a person may reasonably be expected to be observed by
members of the public. "Public places" includes, but is not limited to, streets, sidewalks, parks, beaches, business and
commercial establishments (whether for profit or not-for-profit
and whether open to the public-at-large or where entrance is
limited by a cover charge or membership requirement), hotels,
motels, restaurants, private clubs licensed under article seven,
chapter sixty of this code, night clubs, country clubs, cabarets
and meeting facilities utilized by any religious, social,
fraternal or similar organizations. Premises used solely as a
private residence, whether permanent or temporary in nature, are
not a public place. "Public places" does not include enclosed
single sex public restrooms, enclosed single sex functional
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 constitutionally protected in the home; nor does it
include a person appearing in a state of nudity in a modeling
class operated by a proprietary school, licensed by the state, a
college, junior college or university supported entirely or
partly by taxation or a private college or university where the
private college or university maintains and operates educational
programs in which credits are transferable to a college, junior
college or university supported entirely or partly by taxation or
an accredited private college. "Public place" does not include a private facility which has been formed as a family-oriented
clothing optional facility, properly licensed by the state.
(e) A person who is found guilty of public indecency is
guilty of a misdemeanor and shall, upon conviction, be punished
(1) For a first or second offense, by a fine of five hundred
(2) For a third or subsequent offense, by a fine of one
thousand five hundred dollars or confinement in a regional or
county jail for not more than one year, or both.
(f)(1) The employer or principal of a person who engages in
public indecency while working as an employee or a contractor may
be held liable for a fine imposed by subsection (e) of this
(2) The employer may not be held liable under this
subsection unless it is shown the employer knew or should have
known the acts of the employee or contractor were in violation of
(g) The provisions of subsection (b) of this section do not
apply to any theatrical production which contains nudity as
defined by this section performed in a theater by a professional
or amateur theatrical or musical company which has serious
(h) Subsection (b) of this section does not affect the
ability of local jurisdictions or the state to regulate any activity where alcoholic beverages or nonintoxicating beer are
sold for consumption.
(i) A person is guilty of indecent exposure if:
(1)(A)In a public place, as defined in this section, or on
the private premises of another or so near to the premises as to
be seen from the private premises the person intentionally
exposes his or her genitals or buttocks to another or engages in
sexual contact or sexual penetration; and
(B) Reasonably expects that the acts will be viewed by
another and the acts will offend an ordinary viewer or are for
the purpose of sexual arousal and gratification of the defendant;
(2) The person knowingly invites, entices or fraudulently
induces the child of another into the person's residence for the
purpose of attaining sexual arousal or gratification by
intentionally engaging in the following conduct in the presence
of the child:
(A) Exposure of the person's genitals, buttocks or female
(3) For the provisions of subdivision (2) of this subsection
to apply, the defendant must be eighteen years of age or older
and the child victim must be less than thirteen years of age.
(4)(A) A person guilty of indecent exposure, as provided in
subdivision (2) of this subsection, shall be confined in a regional or county jail for at least sixty and not more than one
hundred twenty days, and fined not more than five thousand
dollars, unless the defendant is eighteen years of age or older
and the victim is under thirteen years of age, in which event the
person shall be confined in a regional or county jail for at
least ninety days and not more than twelve months, and fined not
more than ten thousand dollars.
(B) If the defendant is eighteen years of age or older, the
victim is under thirteen years of age and the defendant has any
combination of two or more prior convictions under this section,
the defendant shall be imprisoned in a correctional facility
under the supervision of the commissioner of corrections for at
definite period of at least ten and not more than twenty years,
and fined not more than twenty thousand dollars.
(5) A person guilty of indecent exposure, as provided in
subdivision (1) of this subsection, shall be fined not more than
two hundred fifty dollars, or confined in a regional or county
jail for not more than ninety days, or both.
(j) As used in subsection (i) of this section:
(A) "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, and the touching is done for the purpose of
gratifying the sexual desire of either party.
(B) "Sexual intrusion" means any act between persons
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.
NOTE: The purpose of this bill is to revise the law relating
to indecent exposure and to create the crime of public indecency.
This section has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.