Senate Bill No. 133
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 18, 2000; referred to the Committee
on the Judiciary.]
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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, relating to preparation, distribution
and exhibition of obscene matter to minors; defining terms;
creating misdemeanor for distributing harmful matter to a
minor; creating felony for distributing obscene matter to a
minor; penalties for repeat offenses; creating misdemeanor for
representing oneself as a parent or guardian; creating
misdemeanor for failing to preclude the perusal of harmful
matter by minors; creating felony for knowingly or recklessly
displaying obscene matter to a minor; establishing defenses;
establishing exemption from criminal liability; creating
felony for knowingly exhibiting or distributing harmful matter to a minor; creating felony for hiring a minor in certain
circumstances; and authorizing injunction.
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 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) "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, exhibit, sell, rent, or advertise for sale or
rent, to the public whether with or without consideration.
(2) "Employee" means any individual who renders personal
services in the course of a business, who receives compensation
therfor 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)
display or offer for viewing,
whether with or without consideration
(f) "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.
(g) "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.
(h) "Internet" means the international computer network of
both federal and nonfederal interoperable packet switched data
networks.
(i) "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.
(4) "Knowingly" means to have knowledge or to be aware of the
content or character of obscene matter.
(5)
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) (k)
"Minor" means any individual an unmarried person under
the age of eighteen years of age.
(7) (l)
"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
sadomasochistic sexual abuse; and
(3) A reasonable person would find, 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.
(m) "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 an adult for the sake of its prurient appeal.
(n) "Parent" includes a natural or adoptive parent, guardian,
or custodian.
(8) (o)
"Person" means any individual adult, partnership,
firm, association, corporation or other legal entity, or any aider
and abettor or conspirator.
(p) "Peruse" means to view or read the contents of any written
or nonwritten material.
(q) "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.
(r) "Pornographic nudity" means the depiction or
representation of visibly discernible human genitalia or pubic
area, anus or post-pubertal female breast, when presented, promoted, pandered, or marketed for sexual gratification,
exploitation, or abuse.
(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 to minor of harmful matter.
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) 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
or herself 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.
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 obscene matter
while acting within the scope of his regular employment.
(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 martial status for excluding minors.
§61-8A-4. Exemptions from criminal liability.
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.
(a) The criminal provisions of sections two and three of this
article do not apply to:
(1) 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;
(2) 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
(3) 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;
(4) 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; or
(5) A radio or television station licensed by the federal
communications commission.
(b) The criminal provisions in subsection (a), section two and
subsection (a), section three of this article apply to the internet
and computer networks only if: (i) Harmful matter is distributed
or displayed with the intent of arousing, appealing to, or
gratifying the lust, passions or sexual desires of the minor or
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 harmful matter had knowledge
of the minor's status as a minor.
§61-8A-5. Harmful matter used with intent to seduce minor.
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.
(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.
Any person who, with knowledge that a person is a minor under
eighteen years of age, or who, while in possession of such facts
that he should reasonably know that such person is a minor under
eighteen years of age, hires, employs or uses such minor to do or
assist in doing any of the acts prescribed in paragraph (b),
subdivision (7), section one of this article, shall be guilty of a
misdemeanor.
§61-8A-7. Equitable remedies.
Nothing herein shall be construed to limit the free exercise
of free speech or picketing by any organization, group or
individual for the purpose of upholding community standards.
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.
NOTE: The purpose of this bill is to strengthen laws
concerning the preparation, distribution, and exhibition of
pornographic and obscene matter to minors, through the
establishment of misdemeanor and felony offenses, penalties and
authorization for injunction.
Strike-throughs indicate language that would be stricken from
the present law. Underscoring indicates new language that would be
added.
..
§61-8A-8 is new; therefore, strike-throughs and underscoring
have been omitted.