Senate Bill No. 665

(By Senator Hunter)

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[Introduced March 26, 2001; referred to the Committee on the Judiciary.]

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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 exposure; penalties.

(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 nude dancing.
(2) The courts have found that nude dancing establishments are frequently used for unlawful sexual activities, including prostitution, and that the 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 the state.
(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, upon conviction, be punished as follows:
(1) For a first or second offense, by a fine of five hundred dollars; and
(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 section.
(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 law.
(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 artistic merit.
(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; or
(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 breasts; or
(B) Masturbation.
(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 a 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.