H. B. 2224
(By Delegates Louisos, Henderson, Faircloth,
Leggett, Tillis and Prunty)
[Introduced February 26, 1997; 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 prohibiting the dissemination of indecent material to
minors; defining prohibited materials and acts; setting
criminal penalties; and creating a presumption of knowledge
and an affirmative defense.
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. DISSEMINATING INDECENT MATERIAL TO MINORS.
§61-8G-1. Definitions.
As used in this article:
(a) "Harmful to minors" means that quality of any
description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement or sadomasochistic abuse, when
it:
(1) Considered as a whole, appeals to the prurient interest
of minors, in sex, or sadomasochistic abuse or extreme violence; (2) Is patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable
material for minors; and
(3) Considered as a whole, lacks serious literary, artistic,
political or scientific values for minors.
(b) "Minor" means any person under the age of eighteen
years.
(c) "Nudity" means the showing of the human male or female
genitals, pubic area or buttocks with less than a fully opaque
covering, or the showing of the female breast with less than a
fully opaque covering of any portion thereof below the top of the
nipple, or the depiction of covered male genitals in a
discernably turgid state.
(d) "Sadomasochistic abuse" means flagellation or torture by
or upon a person clad in undergarments, a mask or bizarre
costume, or the condition of being fettered, bound or otherwise
physically restrained on the part of one so clothed.
(e) "Sexual conduct" means acts of masturbation,
homosexuality, sexual intercourse, or physical contact with a
person's clothed or unclothed genitals, pubic area, buttocks or,
if such person be a female, breast.
(f) "Sexual excitement" means the condition of human male or
female genitals when in a state of sexual stimulation or arousal.
§61-8G-2. Dissemination of indecent material to minors; penalty.
(a) A person is guilty of disseminating indecent material to
minors when:
(1) With knowledge of its character and content, he or she
sells or loans to a minor for monetary consideration:
(A) Any picture, photograph, drawing, sculpture, motion
picture film, or similar visual representation or image of a
person or portion of the human body which depicts nudity, sexual
conduct or sadomasochistic abuse and which is harmful to minors;
or
(B) Any book, pamphlet, magazine, printed matter however
reproduced, or sound recording which contains any matter
enumerated in subparagraph (A) hereto, or explicit and detailed
verbal descriptions or narrative accounts of sexual excitement,
sexual conduct or sadomasochistic abuse and which, taken as a
whole, is harmful to minors; or
(2) Knowing the character and content of a motion picture, show or other presentation which, in whole or in part, depicts
nudity, sexual conduct or sadomasochistic abuse, and which is
harmful to minors, he or she:
(A) Exhibits the motion picture show or other presentation
to a minor for a monetary consideration; or
(B) Sells to a minor an admission ticket or pass to premises
whereon there is exhibited or to be exhibited, the motion picture
show or other presentation; or
(C) Admits a minor for a monetary consideration to premises
whereon there is exhibited or to be exhibited, the motion picture
show or other presentation.
(b) Any person who violates the provisions of this section
is guilty of a felony and, upon conviction thereof, shall be
fined not less than one thousand nor more than five thousand
dollars or shall be imprisoned in the penitentiary not less than
one nor more than three years, or both fined and imprisoned.
§61-8G-3. Presumption of knowledge.
A person who engages in the conduct proscribed by section
two of this article is presumed to do so with knowledge of the
character and content of the material sold or loaned, or the
motion picture, show or presentation exhibited or to be
exhibited.
§61-8G-4. Affirmative defense.
In any prosecution under this article for disseminating
indecent material to minors, it is an affirmative defense that:
(a) The defendant had reasonable cause to believe that the
minor involved was eighteen years old or more; and
(b) The minor exhibited to the defendant a draft card,
driver's license, birth certificate or other official or
apparently official document purporting to establish that the
minor was eighteen years old or more.
NOTE: The purpose of this bill is to create the felony
crime of disseminating indecent material to minors.
This article is new; therefore, strike-throughs and
underscoring have been omitted.