H. B. 4207
(By Delegates Phillips, Smith, Lawrence,
Fragale, C. Miller, Sobonya, Hall,
Pethtel, Ennis)
[Introduced January 28, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-3C-14a of the Code of West
Virginia, 1931, as amended, relating to unlawful obscene,
anonymous, harassing and threatening communications by
computer, mobile phone and personal digital assistant; and
establishing penalties.
Be it enacted by the Legislature of West Virginia:
That §61-3C-14a of the Code of West Virginia, 1931, as
amended, be amended and reenacted, to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER AND MOBILE DEVICES CRIME AND
ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer and mobile devices;
penalty.
(a) It is unlawful for any person, with the intent to harass
or abuse another person, to use a computer,
mobile phone, personal
digital assistant or other mobile device to:
(1) Make contact with another without disclosing his or her
identity
by sending a message to the person on an electronic mail,
other computerized communication system or mobile phone, personal
digital assistant or other mobile device with the intent to harass
or abuse;
(2) Make contact with a person after being requested by the
person to desist from contacting them;
(3) Threaten to commit a crime against any person or property;
or
(4) Cause obscene material to be delivered or transmitted to
a specific person after being requested to desist from sending such
material.
For purposes of this section, "obscene material" means
material that:
(A) 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;
(B) 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
sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks
literary, artistic, political or scientific value.
(b) It is unlawful for any person to knowingly permit a
computer under his or her control to be used for any purpose
prohibited by this section.
(c) Any offense committed under this section may be determined
to have occurred at the place at which the contact originated or
the place at which the contact was received or intended to be
received.
(d) Any person who violates a provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $500 or confined in
a county or regional jail
not more than six months, or both
fined and confined. For a second
or subsequent offense, the person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $1,000 or
confined in
a county or regional jail for not more than one year,
or both
fined and confined. For a third or subsequent offense, the
person is guilty of a felony and, upon conviction thereof, shall be
fined not more than $5,000 or confined in a state correctional
facility for not more than two years, or both fined and confined.
NOTE: The purpose of this bill is to make it unlawful to send
obscene, anonymous, harassing and threatening communications by
computer, mobile phone, personal digital assistant or other mobile
device. The bill makes it a misdemeanor for first and second
offenses. The bill also provides that a third or subsequent offense is a felony and, establishes penalties of imprisonment for not more
than two years, a fine of not more than $5,000, or both.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.