COMMITTEE SUBSTITUTE
FOR
H. B. 4207
(By Delegates Phillips, Smith, Lawrence,
Fragale, C. Miller, Sobonya, Hall,
Pethtel, Ennis)
(Originating in the Committee on the Judiciary)
[February 24, 2010]
A BILL to amend and reenact §61-3C-14a of the Code of West
Virginia, 1931; to amend said code by adding thereto a new
section, designated §61-3C-14c; and to amend and reenact §61-
8-16 of said code, all relating to crimes using computers and
electronic devices; creating offenses for the unlawful
transmission of obscene, anonymous, harassing and threatening
communications and data by mobile phone, personal digital
assistant or other mobile device; clarifying provisions
pertaining to the unlawful obscene, anonymous, harassing and
threatening communications by traditional voice communication
by telephone; creating the misdemeanor offense of unlawful
impersonation of another by computer or other electronic
means; creating a felony offense for certain repeat offenses
using a computer, mobile phone or other mobile device; and
establishing 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; that said code be amended by
adding thereto a new section, designated §61-3C-14c; and that §61-
8-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER AND MOBILE DEVICES CRIME AND
ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer and mobile 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 mobile 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)(1) For purposes of this section, the "use of a computer,
mobile phone, personal digital assistant or other mobile device"
includes, but is not limited to, the transmission of text messages,
electronic mail, photographs, videos, images or other non-voice
data by means of a computerized communication system, and includes
the transmission of such data to another's computer, e-mail
account, mobile phone, personal digital assistant or other mobile
device.
(2) For purposes of this section, "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.
(b)(c) It is unlawful for any person to knowingly permit a
computer,
mobile phone or personal digital assistant or other
mobile device under his or her control to be used for any purpose
prohibited by this section.
(c)(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.
(d)(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
a county or regional 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
a county or regional jail for not more than one year,
or both
fined and confined. For a third or subsequent offense, the
person is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or confined in a state correctional
facility for not more than two years, or both fined and confined.
§61-3C-14c. Unlawful impersonation using a computer or other
electronic means; penalty.
(a)It shall be unlawful for any person to impersonate another
person by communication by internet website, electronic mail or
other electronic means with intent to obtain a benefit, commit
fraud or cause physical or emotional injury to another, or by such
communication pretend to be a public servant in order to induce
another to submit to such authority or act in reliance of such
pretense.
(b) For the purposes of this section, "electronic means"
includes communication by a computer, mobile phone or personal
digital assistant or other electronic device which is used to post,
transmit or publish data or material electronically.
(c) Any offense committed under this section may be determined
to have occurred at the place where communication originated or was
posted, transmitted or sent, or the place where the communication
was received or intended to be received.
(d) Any person who violates this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $500 or confined in jail for not more than six months, or both
fined and confined. For a second 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. For a third or subsequent offense, the person
is guilty of a felony and, upon conviction thereof, shall be fined
not more than $5,000 or confined in a state correctional facility for not more than two years, 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 shall be 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 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 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
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five hundred dollars, or
imprisoned
confined in
the county a jail not more than six months, or both
fined and
imprisoned confined.