Senate Bill No. 174
(By Senator McKenzie)
____________
[Introduced January 11, 2002; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact section twenty-eight, article eight,
chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the protection of an individual's privacy rights.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-eight, 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.
§61-8-28. Criminal invasion of privacy; penalties.
(a) For the purposes of this section, the words or terms
defined in this subsection have the meanings ascribed to them.
These definitions are applicable unless a different meaning
clearly appears from the context:
(1) "A person fully or partially nude" means a male or
female who is either clothed or unclothed so that: (A) All or
any part of his or her genitals, pubic area or buttocks is
visible; or (B) in the case of a female only, a part of a nipple
of her breast is visible and is without a fully opaque covering;
(2) "To visually portray" a person means to create a
reproducible image of that person by means of:
(A) A photograph;
(B) A motion picture;
(C) A video tape;
(D) A digital recording; or
(E) Any other mechanical or electronic recording process or
device that can preserve, for later viewing, a visual image of
a person; and
(3) "Place where a reasonable person would have an
expectation of privacy" means a place where a reasonable person
would believe that he or she could, in privacy, be fully or
partially nude without expecting that the act of exposing his or
her body was being viewed or visually portrayed by another
person.
(4) "View" means the looking upon another person with the
unaided eye or with any device designed or intended to improve
visual acuity, for the purpose of arousing or gratifying the sexual desire of any person.
(b) It is unlawful for a person to knowingly view or
visually portray another person without that other person's
knowledge, while that other person is fully or partially nude
and is in a place where a reasonable person would have an
expectation of privacy. A person who violates the provisions of
this subsection is guilty of a misdemeanor and, upon conviction,
shall be confined in a county or regional jail for not more than
one year or fined not more than five thousand dollars, or both.
(c) Any person who displays or distributes visual images of
another person with knowledge that said visual images were
obtained in violation of subsection (b) of this section is
guilty of a misdemeanor and, upon conviction, shall be confined
in a county or regional jail for not more than one year or fined
not more than five thousand dollars, or both.
(d) A person who is convicted of a second or subsequent
violation of subsection (b) or (c) of this section is guilty of
a felony and, upon conviction, shall be confined in a state
correctional facility for not less than one year nor more than
five years or fined not more than ten thousand dollars, or both.
(e) This section shall not apply to:
(1) The visual portrayal by law-enforcement officers during
a lawful criminal investigation;
(2) The visual portrayal by law-enforcement officers or by
personnel of the department of corrections or of a local jail or
correctional facility for security purposes or during an
investigation of alleged misconduct by a person in the custody
of the department of corrections or the local jail or
correctional facility;
(3) Security surveillance for the purposes of decreasing or
prosecuting theft, shoplifting or other security surveillance
measures in bona fide business establishments.
(f) Prosecutions under this section shall be commenced
within the following periods of limitation:
(1) Three years from the date the viewing, or the original
visual portrayal occurred; or
(2) If the person who was viewed or visually portrayed did
not realize at the time that he or she was being viewed or
visually portrayed, within three years of the time the person
who was viewed or visually portrayed first learns that he or she
was viewed or visually portrayed.
NOTE: The purpose of this bill is to protect the privacy
rights of an individual by making it a criminal offense to
engage in voyeurism where an individual has a expectation of
privacy. This bill makes an exception for law enforcement and
security surveillance. This bill also limits a criminal action
pursuant to the section to three years.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.