H. B. 2752
(By Delegates Border, Greear, Rowe, Beane,
Pino and Ashley)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
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 prohibiting the
distribution and display to minors of sexually explicit
material; definitions; distribution of harmful material to
minors; criminal penalties; display of harmful material to
minors; criminal penalties; exemptions from criminal
liability; harmful material used with intent to seduce a
minor; criminal penalties; and injunctive relief by
governmental entities or political subdivisions.
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. MATERIAL HARMFUL TO MINORS.
§61-8A-1. Definitions:
As used in this article, the following terms mean as
follows:
(a) "Child" means a person under eighteen years of age and
may include a ward or charge of the state or other entity.
(b) "Display" means to show or exhibit or expose to public
view so as to be visible by minors or to minors as part of the
general or invited public.
(c) "Distribute" means to transfer possession, transport,
transmit, import into or export out of the state, promote,
exhibit, sell, rent, or advertise for distribution, or assist,
offer, or agree to do so, whether to members of the public or for
consideration.
(d) "Exhibit" means to show, expose, promote, or perform for
the public or before an audience of one or more.
(e) "Harmful Material" means any depiction, representation
or description, in whatever form, of sexually oriented nudity or sexual conduct which is harmful to minors. Material is harmful
to minors when:
(1) The average adult, applying contemporary community
standards, would find that the material, taken as a whole and
with respect to minors, appeals to the prurient interest; and
(2) The average adult, applying contemporary community
standards with respect to what is suitable for minors, would find
that the material depicts, represents, or describes sexually
oriented nudity or sexual conduct in a patently offensive way;
and
(3) A reasonable adult would find that the material, taken
as a whole, lacks serious literary, artistic, political or
scientific value for minors.
Where circumstances of production, presentation, marketing,
promotion, sale, dissemination, distribution or publicity
indicate that matter is being pandered or commercially exploited
by the defendant for the sake of its prurient appeal, such
evidence is probative with respect to the harmful nature of the
material and can justify the conclusion that the material lacks
serious literary, artistic, political or scientific value for minors.
(f) "Knowledge" means having knowledge of or reason to know
or being aware of the overall sexual character of the material or
live performance.
(g) "Material" means any two or three dimensional item,
article, exhibition, or live performance, including: Any book,
magazine, newspaper, film, video recording or other visual or
written material; or any picture, drawing, photograph, 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
messages; or any public or commercial live exhibition performed
for consideration or before an audience of one or more.
(h) "Minor" means an unmarried person under eighteen years
of age.
(i) "Parent" refers to natural or adoptive parent, guardian
or custodian.
(j) "Peruse" means view, look at or read the contents of any written or nonwritten material.
(k) "Sexual conduct" means ultimate sexual acts (both normal
and perverted, actual and simulated), including sexual
intercourse, sodomy, oral copulation, sexual bestiality, sexual
sadism or masochism, masturbation, eroticized excretory functions
and lewd exhibition of the genitals.
(l) "Sexually oriented nudity" means the depiction or
representation of visibly discernible human genitals or pubic
area, buttocks, postpubertal female breast or discernibly erect
male penis, when presented, promoted, pandered or marketed for
sexual, gratification, interest, exploitation or abuse.
§61-8A-2. Distribution of harmful material to minors.
(a) Every person, with knowledge of the character of the
material, who knowingly or recklessly distributes or offers to
distribute any harmful material to a minor or permits or fails to
preclude the perusal of harmful material by minors as part of the
general public or as reasonably foreseen viewers or users is
guilty of a misdemeanor, and, shall be fined an amount not to
exceed one thousand dollars or be imprisoned for a term not to
exceed six months, or both on first offense and for second and subsequent offenses is guilty of a felony, and shall be fined an
amount not to exceed five thousand dollars or be imprisoned for
a term not to exceed three years, or both.
(b) Every person who knowingly misrepresents himself to be
the parent of a minor for the purpose of distribution of harmful
material to or perusal of harmful material by the minor is guilty
of a misdemeanor and shall be fined an amount not to exceed one
thousand dollars or be imprisoned for a term not to exceed six
months, or both, on first offence and for second and subsequent
offenses is guilty of a felony and shall be fined an amount not
to exceed five thousand dollars or be imprisoned for a term not
to exceed three years, or both.
§61-8A-3. Display of harmful material to minors.
(a) Any person, with knowledge of the character of the
material, who knowingly or recklessly displays harmful material
to a minor is guilty of a misdemeanor and shall be fined an
amount not to exceed one thousand dollars or be imprisoned for a
term not to exceed six months, or both, on first offense and for
second and subsequent offenses is guilty of a felony and shall be
fined an amount not to exceed five thousand dollars or be imprisoned for a term not to exceed three years, or both.
(b) It is not an offense under this section if the harmful
material:
(1) Is displayed in an area from which minors are physically
excluded and the material so located cannot be viewed by any
minor from non-restricted areas; or
(2) Is in an area segregated from nonharmful material 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.
§61-8A-4. Exemptions from criminal liability.
The criminal provisions of this article shall not be applied
to:
(a) A parent who distributes any harmful material to his or
her child, or who permits his or her child to attend an exhibition of any harmful material if the child is accompanied by
him or her; or
(b) A person who exhibits any harmful material to a minor
who is accompanied by his or her parent, or to a minor who is
accompanied by an adult who represents himself or herself to be
the parent of the minor and whom the person, by the exercise of
reasonable care, does not have reason to know is not the parent
of the minor; or
(c) A bona fide school, public library or museum, which is
displaying or distributing any harmful material to a minor only
when the minor is accompanied by his or her parent or has the
knowing and written permission of the parent as to the specific
harmful material displayed or distributed to the minor; or
(d) A licensed medical or mental health care provider during
the course of medical, psychiatric or psychological treatment; or
(e) A person who did not know or have reason to know, and
could not reasonably have learned, that the person to whom the
harmful material was distributed or displayed was a minor and who
took reasonable measures to ascertain the identity and age of the
minor; or
(f) A person who distributes any harmful material by the use
of telephones or telephone or computer facilities who distributes
such material to any minor under the age of eighteen years after
the person has taken either of the following measures to prevent
access by minors to the harmful material:
(1) Required the person receiving the harmful material to
use an authorized access or identification code, before
transmission of the harmful material begins, which the defendant
has previously issued by mailing to the person receiving the
harmful material after taking reasonable measures to ascertain
that the person receiving the harmful material was eighteen years
of age or older and has established a procedure to immediately
cancel the code of any person after receiving notice that the
code has been lost, stolen or used by persons under the age of
eighteen years, or that the code is no longer desired; or
(2) Required payment by credit card before transmission of
the material.
§61-8A-5. Harmful material used with intent to seduce minor.
Every person who, with knowledge or reckless disregard that
a person is a minor, or who fails to exercise reasonable care in ascertaining the age of a minor, distributes, sends, causes to be
sent, exhibits, offers to distribute or exhibit by any means, any
harmful material or permits or fails to preclude the perusal of,
including, but not limited to, live or recorded telephone,
television, radio, video, computer, motion picture or written
images or messages, depicting or describing harmful material to
the minor with the intent of arousing, appealing to or gratifying
the lust or 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
shall be punished by imprisonment in the state prison for a term
not to exceed three years.
Upon the second and each subsequent conviction for a
violation of this section, a person so convicted is guilty of a
felony and such shall be punished by imprisonment in the state
prison for a term not to exceed ten years.
§61-8A-6. Equitable remedies.
Any governmental entity or political subdivision may apply
for injunctive relief in a court of competent equitable
jurisdiction to obtain a preliminary and/or permanent injunction against any present, intended or imminent violation of this
article and any person may apply for a declaratory judgment as to
the harmful nature of any material or the application of this
article to any display or distribution of material to specific
minors or minors as part of the general or invited public, and
such actions 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
and be subject to prompt judicial hearing and expedited appellate
review as required by state or federal constitutional or
statutory law.
NOTE: The purpose of this bill is to rewrite article
eight-a, chapter sixty-one of the code dealing with distributing
or displaying sexually explicit material to children. The bill
describes various sexually explicit activities as "harmful
material" while prescribing criminal penalties for various
activities wherein such harmful material is present, around or
published to, children. Finally the bill sets forth certain
exemptions from criminal liability.
Chapter sixty-one, article eight-a is completely rewritten;
therefore, strike-throughs and underscoring have been omitted.