H. B. 2195
(By Delegates Miley, Lawrence, P. Smith and Poore)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-8C-1 and §61-8C-3 of the Code of
West Virginia, 1931, as amended, all relating to crimes and
their punishment; filming of sexually explicit conduct of
minors; Legislative findings; including "lascivious" and
"child erotica" in definitions; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §61-8C-1 and §61-8C-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.
For the purposes of this article:
(a) "Minor" means any child under eighteen years of age.
(b) "Knowledge" means knowing or having reasonable cause to
know which warrants further inspection or inquiry.
(c) "Sexually explicit conduct" includes any of the following,
whether actually performed or simulated:
(1) Genital to genital intercourse;
(4) Anal intercourse;
(5) Oral to anal intercourse;
(8) Sadomasochistic abuse, including, but not limited to,
flagellation, torture or bondage;
(9) Excretory functions in a sexual context; or
(10) Lascivious exhibition of the genitals, pubic or rectal
areas of any person in a sexual context.
(d) "Person" means an individual, partnership, firm,
association, corporation or other legal entity.
_____(e) "Child Erotica" means any material relating to minors
that serves a sexual purpose for a given individual, to include
nonnude or seminude photographs and videos of minors in sexually
suggestive poses modeling a variety of clothing types such as
dresses, bikinis, nightgowns or undergarments. Child erotica may
also include, in addition to images, other materials that may cause
sexual arousal, such as children's diaries, drawings, underwear,
letters and other similar items.
§61-8C-3. Distribution and exhibiting of material depicting minors
engaged in sexually explicit conduct or child erotica
Any person who, with knowledge, sends or causes to be sent, or
distributes, exhibits, possesses, displays or transports any
material visually portraying a minor engaged in any sexually
explicit conduct is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a correctional facility, not
than two years less than two years for each offense committed, and
fined not more than $2,000.
_____ Any person who, with knowledge, sends or causes to be sent,
or distributes, exhibits, possesses, displays or transports any
material visually portraying child erotica is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000 and confined in jail for not less than thirty days nor
more than twelve months, or both fined and confined.
_____NOTE: The purpose of this bill is to add the term "lascivious"
to the sexually explicit conduct definitions under §61-8C-1 to more
closely resemble the Federal Statute and to allow prosecution for
child erotica images that serve a sexual purpose (See United States
v Knox (1994)). A new definition of "Child Erotica" is also added.
The criminal penalty is enhanced and a section was added to §61-8C-
3 providing for a misdemeanor offense relating to child erotica
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would