Senate Bill No. 740
(By Senator Green)
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[Introduced March 23, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §61-3C-14a of the Code of West
Virginia, 1931, as amended, relating to obscene, anonymous,
harassing and threatening communications by computer; and
penalty.
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 CRIME AND ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer; penalty.
(a) It is unlawful for any person, with the intent to harass
or abuse another person, to use a computer to:
(1) Make contact with another without disclosing his or her
identity
by sending a message to the person on an electronic mail,
media or other computerized communication system 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. 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.
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 regional jail for not more than two years, or
both.
NOTE: The purpose of this bill is to provide that a third or
subsequent offense under this section is a felony and, provide
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.