WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Senate Bill 252
By Senators Azinger, Deeds, and Maynard
[Introduced January 17, 2023; referred
to the Committee on the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-29; and to amend and reenact §61-8A-1 of said code, all relating to the prohibition of obscene materials in or within 2,500 feet of West Virginia schools; and defining criminal penalties for obscene materials in or within 2,500 feet of West Virginia schools.
Be it enacted by the Legislature of West Virginia:
(a) Obscene matter, as defined in §61-8A-1 of this code, is prohibited in, or within 2,500 feet of, any public school library, classroom, building or other facility under the general supervision of the state board, including any public school building containing any of grades prekindergarten through 12, any public charter school building, any multi-county career technical education center building, and any buildings of the West Virginia Schools for the Deaf and Blind. Any school officials or school personnel having knowledge of any obscene matter in a public school building under the general supervision of the state board shall ensure that the obscene matter is promptly removed. This prohibition does not apply to obscene material used in the presentation of local or state approved curriculum.
(b) Any school officials or school personnel while engaged in a professional capacity or activity any public school library, classroom, building or other facility under the general supervision of the state board shall be deemed a custodian of children under §61-8D-4 of the Code of West Virginia. If any such school officials or school personnel while engaged in a professional capacity or activity any public school library, classroom, building or other facility under the general supervision of the state board learns of facts that give reason to suspect that a child has been exposed to obscene matter while in any public school library, classroom, building or other facility and fails to make a timely report may be prosecuted for a misdemeanor under §61-8D-4(f) of the Code of West Virginia and upon conviction shall be fined not exceeding $500 or imprisoned not more than 1 year or both.
(c) The State Superintendent shall establish a procedure for any person to file a complaint alleging a violation of subsection (a) of this section and a procedure for investigating any complaint that is filed. The investigation shall include a determination of whether there is obscene matter in, or within 2,500 feet of, the public school library, classroom, building or facility and whether §61-8A-2 of this code, relating to distribution or display of obscene matter to a minor, is likely to have been violated. If it is determined that there is obscene matter in, or within 2,500 feet of, a public school library, classroom, building or facility, the state superintendent shall use his or her authority set forth in §18-3-4 of this code or any other reasonable means to ensure that the obscene matter is removed from the public school library, classroom, building or facility, or within 2,500 feet thereof. If it is determined that a violation of §61-8A-2 of this code is likely to have occurred, the state superintendent, investigator, or other person acting on behalf of the superintendent shall notify the appropriate law-enforcement agency or agencies.
(d) No funds authorized by the Legislature, including, but not limited to, funds sourced from the federal government, may be used by any school under the general supervision of the state board or any public charter school: (i) to develop or distribute materials, or operate programs or courses of instruction directed at youth, that are designed to promote or encourage sexual activity, whether homosexual or heterosexual; or (ii) to distribute or to aid in the distribution by any organization of legally obscene materials, as defined in §61-8A-1 of this code, to minors on, or within 2,500 feet of, any school library, classroom, building or facility.
(e) If an adult individual meets the criteria for an adult to have committed a felony under §61-8A-2 of this code, and no exemption set forth in §61-8A-3 of this code applies, the individual shall be subject to the penalty or penalties imposed pursuant to §61-8A-2 of this code.
(f) Any student or parent, guardian, or custodian on behalf of the student shall have a civil cause of action against a county board, a public charter school, the state board, or the administrative council of a multi-county career technical education center if the entity caused or was negligent in allowing a violation of this section. In any such cause of action, the student or parent, guardian, or custodian on behalf of the student may recover actual damages, punitive damages, reasonable attorney fees, and reasonable costs of litigation incurred.
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) "Graphic", when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.
(h) "Identifiable minor" means a person: (i) who was a minor at the time the visual depiction was created, adapted, or modified; or (ii) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and (iii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor.
(i) "Indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct.
"Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.
(j) "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.
(k) "Matter" means any visual, audio, or physical item, article, production transmission, publication, display, exposure, exhibition, or live performance, or reproduction thereof, including any two- or three- dimensional visual or written material, stereopticon, moving picture, slide, film, picture, drawing, not exceeding $500 video, graphic, graphic novel, or computer generated or reproduced image; or any book, not exceeding $500 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.
(l) "Minor" means an unemancipated person under eighteen years of age.
(m) "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.
(4) For the purposes of any prohibition, protection or requirement under any and all articles and sections of the Code of West Virginia protecting children from exposure to indecent displays of a sexually explicit nature, such prohibited displays shall include, but not be limited to, any transvestite and/or transgender exposure, performances or display to any minor.
(n) "Parent" includes a biological or adoptive parent, legal guardian or legal custodian.
(o) "Person" means any adult, partnership, firm, association, corporation or other legal entity.
(p) "Sexually explicit conduct" means a definitive sexual act between persons of the same or opposite sex, actual or simulated, including genital-genital, oral-genital, anal-genital, or oral-anal sexual intercourse, sodomy, oral copulation of any kind, sexual bestiality, sexual sadism and masochism, masturbation, excretory functions and lewd exhibition of the anus, genitals or pubic area of any person, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited.
NOTE: The purpose of this bill is to prohibit obscene materials in West Virginia schools.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.