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.