Senate Bill No. 134
(By Senators McKenzie, Weeks, Minear, Bowman and Sharpe)
[Introduced January 13, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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
(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; and
(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 does 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
(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 must 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
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 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