H. B. 2816
(By Delegates Border, Greear and Beane)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend chapter sixty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight-g, relating
to the distribution of obscene material; definitions;
criminal penalties; and injunctive relief.
Be it enacted by the Legislature of West Virginia:
That chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eight-g, to read
as follows:
ARTICLE 8G. DISTRIBUTION OF OBSCENITY.
§61-8G-1. Definitions.
The following definitions apply in this article:
(a) "Obscene" means material which:
(1) The average adult, applying contemporary adult
community standards, would find, taken as a whole, appeals to the
prurient interest; and
(2) The average adult, applying contemporary adult community
standards, would find depicts or describes sexual conduct in a
patently offensive way; and
(3) A reasonable adult would find, taken as a whole, lacks
serious literary, artistic, political or scientific value.
Where circumstances of production, presentation, marketing,
promotion, sale, dissemination, distribution or publicity
indicate that material is being produced or commercially
exploited by the defendant for the sake of its prurient appeal,
such evidence is probative with respect to the obscenity of the
material and can justify the conclusion that the material lacks
serious literary, artistic, political or scientific value.
(c) "Material" means any two or three dimensional items,
articles, exhibitions, or live performances, 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.
(d) "Person" means any individual, partnership, firm,
association, corporation or other legal entity.
(e) "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.
(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) "Exhibit" means to show, expose, promote, or perform
for the public or before an audience of one or more.
(h) "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.
§61-8G-2. Distribution of obscene material.
(a) Every person, with knowledge of the character of the
material, who knowingly sends or causes to be sent, or brings or
causes to be brought, into this state for sale or distribution,
or in this state possesses, prepares, publishes, reproduces, or
prints with intent to distribute or to exhibit to others, or who
offers to distribute, distributes, or exhibits to others, any
obscene material 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 one year, 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 ten thousand dollars or be
imprisoned for a term not to exceed three years, or both.
§61-8G-3. 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 injunction
against any present, intended, or imminent violation of this
article and any person may apply for a declaratory judgment as to
the obscene nature of any material or the application of this article to any display or distribution of material, 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 create a new article
to address distribution of obscene material. The bill includes
a definition section along with a section that sets forth
criminal penalties for the distribution of obscene materials.
The bill also provides for injunctive relief to shut down any
activity that violates the provisions of the article.
This section is new; therefore, strike-throughs and
underscoring have been omitted.