ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 213
(Senators Foster, Kessler (Acting President), Chafin,
Jenkins, Laird, Minard, Palumbo, Snyder, Williams,
Hall, Unger, Browning, Wells, Stollings, Plymale, Prezioso, Miller, Yost,
Klempa and Beach, original sponsors)
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[Passed March 11, 2011; in effect ninety days from passage.]
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AN ACT to amend and reenact §61-3C-14a of the Code of West
Virginia, 1931, as amended, and to amend and reenact §61-8-
16 of said code, all relating to crimes using computers,
telephones and electronic communications devices; creating
offenses for the unlawful transmission of obscene,
anonymous, harassing and threatening communications and data
by mobile phone, personal digital assistant or other
electronic communications device; clarifying provisions
pertaining to the unlawful obscene, anonymous, harassing and
threatening communications by traditional voice
communication by telephone; creating a felony offense for
certain repeat offenses using a computer, mobile phone or
other electronic communications device; definitions; and
establishing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §61-3C-14a of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §61-8-16 of said code
be amended and reenacted, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER AND ELECTRONIC COMMUNICATIONS
DEVICE CRIME AND ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer, cell phones and electronic
communication devices; penalty.
(a) It is unlawful for any person, with the intent to harass
or abuse another person, to use a computer, mobile phone,
personal digital assistant or other electronic communication
device to:
(1) Make contact with another without disclosing his or her
identity with the intent to harass or abuse;
(2) Make contact with a person after being requested by the
person to desist from contacting them;
(3) Threaten to commit a crime against any person or
property; or
(4) Cause obscene material to be delivered or transmitted to
a specific person after being requested to desist from sending
such material.
(b) For purposes of this section:
(1) "Electronic communication device" means and includes a
telephone, wireless phone, computer, pager or any other electronic or wireless device which is capable of transmitting a
document, image, voice, e-mail or text message using such device
in an electronic, digital or analog form from one person or
location so it may be viewed or received by another person or
persons at other locations.
(2) "use of a computer, mobile phone, personal digital
assistant or other electronic communication device" includes, but
is not limited to, the transmission of text messages, electronic
mail, photographs, videos, images or other nonvoice data by means
of an electronic communication system, and includes the
transmission of such data, documents, messages and images to
another's computer, e-mail account, mobile phone, personal
digital assistant or other electronic communication device.
(3) "obscene material" means material that:
(A) An average person, applying contemporary adult community
standards, would find, taken as a whole, appeals to the prurient
interest, is intended to appeal to the prurient interest, or is
pandered to a prurient interest;
(B) An average person, applying contemporary adult community
standards, would find, depicts or describes, in a patently
offensive way, sexually explicit conduct consisting of an
ultimate sexual act, normal or perverted, actual or simulated, an
excretory function, masturbation, lewd exhibition of the
genitals, or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks
literary, artistic, political or scientific value.
(c) It is unlawful for any person to knowingly permit a
computer, mobile phone or personal digital assistant or other
electronic communication device under his or her control to be
used for any purpose prohibited by this section.
(d) Any offense committed under this section may be
determined to have occurred at the place at which the contact
originated or the place at which the contact was received or
intended to be received.
(e) Any person who violates a provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $500 or confined in jail not more than six
months, or both fined and confined. For a second or subsequent
offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or
confined in jail for not more than one year, or both fined and
confined.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-16. Obscene, anonymous, harassing, repeated and
threatening telephone calls; penalty.
(a) It is unlawful for any person with intent to harass or
abuse another by means of telephone to:
(1) Make any comment, request, suggestion or proposal which
is obscene; or
(2) Make a telephone call, whether or not conversation
ensues, without disclosing his or her identity and with intent to harass any person at the called number; or
(3) Make or cause the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
(4) Make repeated telephone calls, during which conversation
ensues, with intent to harass any person at the called number; or
(5) Threaten to commit a crime against any person or
property.
(b) It shall be unlawful for any person to knowingly permit
any telephone under his or her control to be used for any purpose
prohibited by this section.
(c) Any offense committed under this section may be deemed
to have occurred at the place at which the telephone call was
made, or the place at which the telephone call was received.
(d) Any person who violates any provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $500, or confined in jail not more than six
months, or both fined and confined.