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.