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Key: Green = existing Code. Red = new code to be enacted
H. B. 2357
(By Delegates Poore, Marshall, Moore, Hamilton, Miley,
Longstreth, Caputo, Manchin and Ellem)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-8A-6, relating to
sexting by minors; requiring Attorney General to develop an
educational diversion program; providing rule-making
authority; providing criteria to be used by prosecuting
attorney for admittance into program; requiring individual
prosecuting attorneys to operate program; requiring the West
Virginia Prosecuting Attorneys Institute to oversee the
administrative procedures for the program; and creating the
opportunity to avoid prosecution for completion of the
educational diversion program.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-8A-6, to read as
follows:
ARTICLE 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE MATTER TO MINORS; SEXTING BY MINORS.
§61-8A-6. Sexting educational diversion program.
_____(a) A minor who uses telecommunications device to knowingly
transmit or distribute to another minor a photograph, text message
with a photo attachment, or other transmitted material of any kind
depicting himself or herself, or another minor in a state of
sexual activity or a state of sexually explicit nudity may not be
prosecuted under the provisions of this article, if the minor
successfully completes the program provided by this section.
_____(b) Instead of pursuing a conviction for a violation of this
article for activity described in subsection (a) of this section,
a prosecuting attorney shall allow an eligible minor to participate
in the program developed by the Attorney General under this
section.
_____(c) (1) The Attorney General, in consultation with the
Administrative Office of the West Virginia Supreme Court of Appeals
shall develop an educational diversion program for minors who may
be accused of activity described in subsection (a) of this section.
_____(2) The program shall provide information concerning:
_____(A) The legal consequences of and penalties for sharing
sexually suggestive or explicit materials, including applicable
federal and state statutes;
_____(B) The nonlegal consequences of sharing sexually suggestive
or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities,
and being barred or removed from school programs and
extracurricular activities;
_____(C) How the unique characteristics of cyberspace and the
Internet, including searchability, replicability and an infinite
audience, can produce long-term and unforeseen consequences for
sharing sexually suggestive or explicit materials; and
_____(D) The connection between bullying and cyber-bullying and
minors sharing sexually suggestive or explicit materials.
_____(3) To effectuate the provisions of this subsection, the
Attorney General may adopt procedural and interpretive rules, and
propose legislative rules for legislative approval, all in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.
_____(4) The operation of the program in a county is under the
direct supervision and control of the prosecuting attorney. The
prosecuting attorney may contract for services with a county or
municipality in the circuit necessary in conducting the program.
_____(5) The West Virginia Prosecuting Attorneys Institute shall
oversee the administrative procedures for the program required by
this section.
_____(d) The prosecuting attorney shall determine whether a minor
is admitted to the program. A minor is eligible to participate in
the program if:
_____(1) The facts of the case involve the creation, exhibition or
distribution without malicious intent of a photograph depicting
nudity as defined in that section through the use of an interactive
wireless communications device or a computer; and
_____(2) The creator and subject of the photograph are minors or
were minors at the time of its making.
_____(e) Admission to the program is limited to eligible minors who
the prosecuting attorney finds:
_____(1) Have not previously been adjudicated delinquent for or
convicted of a criminal offense under this code, federal law or a
law of another state;
_____(2) Were not aware that their actions could constitute and did
not have the intent to commit a criminal offense;
_____(3) May be harmed by the imposition of criminal sanctions; and
_____(4) Would likely be deterred from engaging in similar conduct
in the future by completing the program.
NOTE: The purpose of this bill is to require the Attorney
General to develop an educational diversion program for minors
accused of sexting. It provides criteria for admittance into a
program by a prosecuting attorney and creates the opportunity for
minors to avoid prosecution upon the completion of the educational
diversion program.
This section is new; therefore, it has been completely
underscored.