hb4469 intr

H. B. 4469

(By Delegate Houston (By Request))

[Introduced February 9, 2000; 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 obscenity and providing criminal penalties therefor; definitions; and what constitutes evidence of pornography.

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. CRIMES AGAINST EXHIBITING PORNOGRAPHY.

§61-8G-1. Definitions.

The following definitions apply in this article:

(a) "Obscene" means matter which:

(1) The average adult, applying contemporary adult community standards, would find, taken as a whole, that it appeals to the prurient interest; and

(2) The average adult, applying contemporary adult community standards, would find that it depicts or describes sexual conduct in a patently offensive way; and

(3) A reasonable adult would find, taken as a whole, that it lacks serious literary, artistic, political or scientific value.

(b) "Matter" 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.

(d) "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.

(e) "Knowledge" means having knowledge of or reason to know or being aware of the overall sexual character of the matter or live performance.

(f) "Exhibit" means to show, expose, promote or perform for the public or before an audience of one or more.

(g) "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 matter.

Every person, with knowledge of the character of the matter, 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 matter is guilty of a misdemeanor and, shall be fined an amount not to exceed five 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 matter or the application of this article to any display or distribution of matter 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.
§61-8G-4. Evidence of obscenity.

Where circumstances of production, presentation, marketing, promotion, sale, dissemination, distribution or publicity indicate that matter 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 matter and can justify the conclusion that the matter lacks serious literary, artistic, political or scientific value.

NOTE: The purpose of this bill is to provide criminal sanctions for the distribution of pornography. The bill provides definitions for various terms, provides criminal penalties and prescribes circumstances that may be construed as evidence of what constitutes pornography.

This article is new; therefore strike-throughs and underscoring have been omitted.