COMMITTEE SUBSTITUTE
FOR
H. B. 2807
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[February 26, 1999]
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; 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.
(d) "Distribute" means to transfer possession, transport,
transmit, exhibit, sell, rent, or advertise for sale or rent, to the public whether with or without consideration.
(e) "Exhibit" means to show, expose, promote, or perform to
or for the public, or to offer to show, expose, promote, or
perform to or for the public.
(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 non-federal 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.
(j) "Matter" means any visual, audio, or physical item,
article, production, transmission, publication, exhibition, or
live performance, or reproduction thereof, including any two or
three dimensional visual or written material, film, picture,
drawing, video, graphic, or computer generated or reproduced
image; or any book, magazine, newspaper or other visual or
written material; or any motion picture or other pictorial
representation; or any statue or other figure; or any recording,
transcription, or mechanical, chemical, or electrical
reproduction; or any other articles, equipment, machines, video
laser disc, computers and related equipment, computer hardware
and software, or computer generated images or message recording, transcription, or object, or any public or commercial live
exhibition performed for consideration or before an audience of
one or more.
(k) "Minor" means an unmarried person under eighteen years
of age.
(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 sado-masochistic sexual abuse; and
(3) A reasonable person would find, taken 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 a person for the sake of its prurient appeal.
(n) "Parent" includes a natural or adoptive parent, guardian, or custodian.
(o) "Person" means any individual, 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.
§61-8A-2. Distribution to minor of harmful matter.
(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 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.
(a) Display to minor of harmful matter other than obscene
matter. -- Any person, with knowledge of the character of the
matter, who knowingly or recklessly displays to a minor harmful
matter 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) 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 marital status for excluding minors.
§61-8A-4. Exemptions from criminal liability.
(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.
(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.
Every person who, with knowledge that a person is a minor or
who fails to exercise reasonable care in ascertaining the age of
a minor, hires, employs or uses such minor to do or assist in
doing sexually explicit conduct is guilty of a felony, and upon
conviction thereof, shall be fined not more than fifty thousand
dollars, or imprisoned for not more than ten years, or both fined
and imprisoned.
§61-8A-7. Equitable remedies.
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.
This article has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.