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WEST virginia legislature
2023 regular session
Committee Substitute
for
House Bill 3190
By Delegate Steele
[Originating in the Committee on the Judiciary; Reported on February 13, 2023]
A BILL to amend the Code of West Virginia, 1931, as amended, and to amend and reenact §61-3C-14b, §61-8A-1, §61-14-1, relating to criminal liability to include adults that use computers by which to solicit, entice, seduce, lure, or attempt to solicit, entice, seduce, or lure a minor, or a person purported to be a minor, to engage in specific enumerated illegal acts contained in the West Virginia Code and providing definition of “minor” therein; also relating to expanding criminal liability to include adults who additionally engage in an overt act which is designed to put the adult in the physical presence of the minor, or a person purported to be a minor; also relating to amending §61-8A-1 to amend the definition of “minor”; also relating to amending §61-14-1 to amend the definition of “minor”; and to amend and the Code of West Virginia, 1931, as amended by creating a new section, §61-8-32, relating to imposing criminal liability to include adults who by any means, not involving the use of computer, solicit, entice, seduce, lure, or attempt to solicit, entice, seduce, or lure a minor, or a person purported to be a minor, to engage in specific enumerated illegal acts contained in the West Virginia Code and also providing definition of “minor” therein; also relating to expanding criminal liability to include adults who additionally engage in an overt act which is designed to put the adult in the physical presence of the minor.
Be it enacted by the Legislature of West Virginia:
(c) For purposes of this section, "minor" means a person less than or purported to be less than 18 years of age. Any prosecution, pursuant to this article, relating to a victim that is a person purported to be less than eighteen years of age shall be limited to investigations being conducted, or overseen, by law enforcement officers.
§61-8-32. Soliciting, etc. a minor by any means; soliciting a minor and traveling to engage the minor in prohibited sexual activity; definition of minor; penalties.
(a) Any person over the age of eighteen, who knowingly, by any means, solicits, entices, seduces, or lures, or attempts to solicit, entice, seduce or lure, a minor known or believed to be at least four years younger than the person, or a person he or she believes to be such a minor, or is purported to be such a minor, in order to engage in any illegal act proscribed by the provisions of §61-8-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this chapter, or any felony offense under §60A-4-401 is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility not less than two nor more than ten years, or both. Provided, That §61-3C-14b shall govern any prosecutions involving the use of computers to solicit, entice, seduce or lure, a minor known or believed to be at least four years younger than the person, using the computer or a person he or she believes to be such a minor, or is purported to be such a minor, in order to engage in any illegal act proscribed by the provisions of §61-8-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this chapter, or any felony offense under §60A-4-401 of this code.
(b) Any person over the age of eighteen who, by any means in the manner proscribed by the provisions of subsection (a) of this section and who additionally engages in any overt act designed to bring himself or herself into the minor’s, purported minor’s, or the person believed to be a minor’s, physical presence with the intent to engage in any sexual activity or conduct with such a minor that is prohibited by law, is guilty of a felony and shall be fined not more than $25,000 or imprisoned in a state correctional facility for a determinate sentence of not less than five nor more than thirty years, or both: Provided, That subsection (a) shall be deemed a lesser included offense to that created by this subsection.
(c) For purposes of this section, "minor" means a person less than or purported to be less than 18 years of age. Any prosecution, pursuant to this article, relating to a victim that is a person purported to be less than eighteen years of age shall be limited to investigations being conducted, or overseen, by law enforcement officers.
When used in this article, the following words, and any variations thereof required by the context, shall have the meaning ascribed to them in this section:
(a) "Adult" means a person 18 years of age or older.
(b) "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility or communication facility directly related to or operating in conjunction with such device. As used in this article, computer includes file servers, mainframe systems, desktop personal computers, laptop personal computers, tablet personal computers, cellular telephones, game consoles, and any electronic data storage device or equipment. The term "computer" includes any connected or directly related device, equipment or facility which enables the computer to store, retrieve or communicate computer programs, computer data, or the results of computer operations to or from a person, another computer or another device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator or other similar device.
(c) "Computer network" means the interconnection of hardware or wireless communication lines with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
(d) "Display" means to show, exhibit or expose matter, in a manner visible to general or invited public, including minors. As used in this article, display shall include the placing or exhibiting of matter on or in a billboard, viewing screen, theater, marquee, newsstand, display rack, window, showcase, display case, or similar public place.
(e) "Distribute" means to transfer possession, transport, transmit, sell or rent, whether with or without consideration.
(f) "Employee" means any individual who renders personal services in the course of a business, who receives compensation and who has no financial interest in the ownership or operation of the business other than his or her salary or wages.
(g) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.
(h) "Knowledge of the character of the matter" means having awareness of or notice of the overall sexual content and character of matter as depicting, representing or describing obscene matter.
(i) "Matter" means any visual, audio, or physical item, article, production transmission, publication, exhibition, or live performance, or reproduction thereof, including any two- or three- dimensional visual or written material, film, picture, drawing, video, graphic, or computer generated or reproduced image; or any book, magazine, newspaper, or other visual or written material; or any 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, video laser disc, computer hardware and software, or computer generated images or message recording, transcription, or object, or any public or commercial live exhibition performed for consideration or before an audience of one or more.
(k) "Obscene matter" means matter that:
(1) 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;
(2) An average person, applying community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct; and
(3) A reasonable person would find, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(l) "Parent" includes a biological or adoptive parent, legal guardian, or legal custodian.
(m) "Person" means any adult, partnership, firm, association, corporation, or other legal entity.
(n) "Sexually explicit conduct" means an ultimate sexual act, normal or perverted, actual or simulated, including sexual intercourse, sodomy, oral copulation, sexual bestiality, sexual sadism and masochism, masturbation, excretory functions and lewd exhibition of the genitals.
When used in this article, the following words and terms shall have meaning specified unless the context clearly indicates a different meaning:
(1) "Adult" means an individual 18 years of age or older.
(2) "Coercion" means:
(A) The use or threat of force against, abduction of, serious harm to or physical restraint of an individual;
(B) The use of a plan, pattern, or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, physical restraint of, or deportation of an individual;
(C) The abuse or threatened abuse of law or legal process;
(D) The destruction or taking of, or the threatened destruction or taking of, an individual’s identification document or other property; or
(E) The use of an individual’s physical or mental impairment when the impairment has a substantial adverse effect on the individual’s cognitive or volitional function.
As used in this article, "coercion" does not include statements or actions made by a duly authorized state or federal law-enforcement officer as part of a lawful law enforcement investigation or undercover action.
(3) "Commercial sexual activity" means sexual activity for which anything of value is given to, promised to or received by a person.
(4) "Debt bondage" means inducing an individual to provide:
(A) Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or
(B) Labor or services in payment toward or satisfaction of a real or purported debt if:
(i) The reasonable value of the labor or services is not applied toward the liquidation of the debt; or
(ii) The length of the labor or services is not limited, and the nature of the labor or services is not defined.
(5) "Forced labor" means labor or services that are performed or provided by another person and are obtained or maintained through the following:
(A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern or other action intended to cause a person to believe that, if the person did not perform or provide the labor or services, that person or another person would suffer serious bodily harm, physical restraint or deportation;
(B) Physically restraining or threatening to physically restrain a person;
(C) Abuse or threatened abuse of the legal process; or
(D) Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person: Provided, That "forced labor" does not mean labor or services required to be performed by a person in compliance with a court order or as a required condition of probation, parole, or imprisonment.
As applied in this article, forced labor shall not include labor, work or services provided by a minor to the minor’s parent, legal custodian or legal guardian, so long as the legal guardianship or custody of the minor was not obtained for the purpose of compelling the minor to participate in commercial sex acts or sexually explicit performance, or perform forced labor or services; nor shall it include physical restraint of a minor, or the threat of physical restraint to a minor, by his or her parents, legal custodian or legal guardian if conducted in an otherwise lawful manner and for the purpose of discipline, supervision or teaching.
(6) "Human trafficking", "trafficking", or "traffics" means knowingly recruiting, transporting, transferring, harboring, receiving, providing, obtaining, isolating, maintaining, or enticing an individual to engage in debt bondage, forced labor, or sexual servitude.
(7) "Identification document" means a passport, driver’s license, immigration document, travel document or other government-issued identification document, including a document issued by a foreign government.
(8) "Labor or services" means activity having economic value.
(9) "Minor" means an individual a person less than or purported to be less than 18 years of age. Any prosecution, pursuant to this article, relating to a victim that is a person purported to be less than eighteen years of age shall be limited to investigations being conducted, or overseen, by law enforcement officers.
(10) "Patronize" means giving, agreeing to give or offering to give anything of value to another person in exchange for commercial sexual activity.
(11) "Person" means an individual, estate, business or nonprofit entity, or other legal entity. The term does not include a public corporation or government or governmental subdivision, agency or instrumentality.
(12) "Serious harm" means harm, whether physical or nonphysical, including psychological, economic or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm.
(13) "Sexual activity" means sexual contact, sexual intercourse or sexual intrusion, as defined in section one, article eight-b of this chapter, or sexually explicit conduct, as defined in section one, article eight-c of this chapter.
(14) "Sexual servitude" means:
(A) Maintaining or making available a minor for the purpose of engaging the minor in commercial sexual activity; or
(B) Using coercion to compel an adult to engage in commercial sexual activity.
(15) "Victim" means an individual who is subjected to human trafficking, regardless of whether a perpetrator is prosecuted or convicted.
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