H. B. 2813
(By Delegates Border and Johnson)
[Introduced March 31, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article one, chapter
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
four-a, all relating to defining obscenity; prohibiting the
dissemination of obscene material; providing for county
option election; and providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That section four, article one, chapter seven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that said article be further
amended by adding thereto a new section, designated section four-
a, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-4. County commission authority to enact ordinance;
ordinance provisions defining terms; restricting
certain activities in relation to obscene matter; and
establishing penalties for violations.
(a) In addition to all other powers which county commissions
now possess by law, county commissions may adopt the ordinance
provided in subsection (b) of this section.
A county commission when adopting this ordinance may delete
therefrom such portions of paragraph (A), subdivision (4),
subsection (b) of this section that it deems appropriate.
(b) The ordinance which county commissions may adopt
pursuant to the power granted them under subsection (a) of this
section shall be:
Section 1. Definitions.
For purposes of this ordinance,
except where otherwise
indicated or defined, the following terms shall have the
following meanings:
(1) "Knowingly" means to have knowledge of or to be aware of
the content or character of obscene matter.
(2) "Matter" means any book, magazine, newspaper or other
printed or written material, or any picture, drawing or
photograph, motion picture, or other visual representation, or
live conduct, or any recording, transcription or mechanical,
chemical or electrical reproduction, or any other articles,
equipment, machines or materials.
(3) "Individual" means any human being regardless of age.
(4) "Obscene" means matter which the average individual
applying contemporary community standards would find (i) taken as
a whole, appeals to the prurient interest; (ii) depicts ordescribes in a patently offensive way ultimate sexual acts,
normal or perverted, actual or simulated; and (iii) the matter,
taken as a whole, lacks serious literary, artistic, political or
scientific value, and which either:
(A) Depicts or describes patently offensive representation
of masturbation, excretory functions, lewd exhibition of the
genitals, sodomy, fellatio, cunnilingus, bestiality, sadism,
masochism; or
(B) Depicts or describes nudity or sexual acts of persons,
male or female, below the age of eighteen years.
(5) "Person" means any individual, partnership, firm,
association, corporation or other legal entity.
(6) "Prepare" means to produce, publish or print.
(7) "Public display" means the placing of material on or in
a billboard, viewing screen, theatre, marquee, newsstand, display
rack, window, showcase, display case or similar public place so
that material can be purchased or viewed by individuals.
(a) "Adult person" means an individual human being over the
age of eighteen years and competent.
(b) "Disseminates" means actual or attempted transfer,
delivery or distribution to another person for nominal or
valuable consideration; the publication or exhibition to persons
for nominal or valuable consideration, or placing for public
display.
(c) "Knowingly" means to have knowledge of or be aware of or
have reason to believe the content and character of the materialis obscene material.
(d) "Material" means any visual representation in any book,
magazine, newspaper or other printed or written material, or any
picture, drawing or photograph, motion picture, or other visual
representation, or live conduct, or any recording, transcription
or mechanical, chemical, electrical or electronic reproduction,
or any physical articles, equipment, machines or devices.
(e) "Obscene material" means material or work which a
reasonable adult person would find that the material or work,
taken as a whole, appeals to prurient interest in sex; a
reasonable adult person would find that the material depicts or
describes sexual conduct in a patently offensive way; and a
reasonable adult person would find that the work or material,
taken as a whole, lacks serious literary, artistic, political or
scientific value.
(f) "Patently offensive" means an obviously and clearly
disagreeable, objectionable, repugnant, displeasing, distasteful
or obnoxious depiction or description of sexual conduct that
exceeds the standards of decency and propriety of a reasonable
person.
(g) "Person" means any individual, partnership, firm,
association, corporation or other legal entity.
(h) "Prurient interest" means a wanton, lewd, lustful or
lascivious interest.
(i) "Public display" means the placing of material on or in
a billboard, viewing screen, marquee, placard, sign, newsstand,display rack, window, showcase, display case or similar means of
display so that the material within the meaning of "obscene
material" is easily visible from a public thoroughfare, from the
property of others or in or on commercial or business premises
generally open to the public.
(j) "Sexual conduct" means vaginal, anal or oral
intercourse, whether actual or simulated, normal or perverted,
whether between human beings, or between animals and human
beings; sexual intercourse or sexual intrusion as defined in
section one, article eight-b, chapter eleven of this code,
regardless of whether the participants are married to each
other; masturbation, or lewd exhibitions of excretory functions,
or lewd exhibitions of the genitals, pubic hair or anus of any
human being or lewd exhibition of the breasts of a female if the
areola or nipple is clearly visible and in contact with any
portion of the body of another human being, or any acts of
bestiality or sadomasochiam, whether actual or simulated.
Section 1a. Injunctive relief.
The circuit court
shall have has jurisdiction to issue an
injunction to enforce the purposes of this ordinance upon
petition by the prosecuting attorney or any citizen of the county
who can show
a good faith and valid reason reasonable cause for
making such application. No bond
shall may be required unless
for good cause shown.
Section 2. Activities prohibited; penalties.
Any person who knowingly sends or causes to be sent orcauses to be brought into the county of (name of county) for sale
or public display, or prepares, sells or makes a public display,
or in the county of (name of county) offers to prepare, sell or
make a public display, or has in his possession with the intent
to sell or make a public display of any obscene matter to any
individual, is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than five hundred dollars or
imprisoned in the county jail not more than thirty days or both
fined and imprisoned. A person convicted of a second or
subsequent offense under this ordinance is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars or imprisoned in the county jail
not more than six months or both fined and imprisoned.
(a) It is unlawful for any person to knowingly create, buy,
procure, process, produce or otherwise manufacture obscene
material with the purpose and intent to disseminate it in the
county of (name of county).
A person who violates this subsection is guilty of a
misdemeanor, and, upon conviction thereof, shall be imprisoned in
the county jail for not more than one year, or fined not more
than five thousand dollars or both fined and imprisoned. A
corporation, partnership, association, firm, club or other legal
or commercial entity that violates this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than twenty-five thousand
dollars.
(b) It is unlawful for a person to disseminate obscene
material for dissemination in the county of (name of county). A
person who violates this subsection is guilty of a misdemeanor,
and, upon conviction thereof, shall be imprisoned in the county
jail for not more than one year, or fined not less than five
hundred dollars nor more than ten thousand dollars or both fined
and imprisoned. A corporation, partnership, association, firm,
club or other legal or commercial entity that violates this
section is guilty of a misdemeanor and shall be fined not less
than five thousand dollars nor more than twenty-five thousand
dollars.
Section 3. Prosecution by presentment or indictment.
No person may be prosecuted for an offense under this
ordinance except by indictment or information.
Section 4. Employees acting within scope of employment
shall not be prosecuted.
No employee
shall be is guilty of a violation of this
ordinance when such employee is a projectionist, ticket taker,
usher, or when such employee prepares, sells or makes a public
display of
or otherwise disseminates obscene matter while acting
within the scope of his regular employment, unless such employee
has a proprietary interest in such obscene matter
other than as
an employee or is a shareholder or officer of a corporation which
has a proprietary interest in such obscene matter.
Section 4a. Evidence of the element of knowledge.
The element of knowledge of the character and contents ofmaterials may be proven by circumstantial evidence; lack of proof
of inspection of materials is not, per se an affirmative or
absolute defense to the element of knowledge, but may be given
such weight as evidence as the trier of fact may deem
appropriate.
Section 5. Exceptions.
Nothing in this ordinance
shall may be construed so as to
apply to any person exercising a right secured by the
constitution or laws of this state or of these United States.
§7-1-4a. Enacting ordinance relating to obscene matter; local
option election; petition, election procedure; form of
ballot; effect of such election.
The county commission of any county is authorized to call a
local option election for the purpose of determining the will of
the voters as to whether an ordinance relating to obscene matter
shall be approved.
A petition for such local option election shall be in the
form hereinafter specified and shall be signed by qualified
voters residing within said county equal to at least one percent
of the persons qualified to vote within said county at the last
general election. For the purpose of this article, the term
"qualified voters" shall mean those actually voting at the last
general election and not those registered to vote. The petition
may be in any number of counterparts and shall be sufficient if
substantially in the following form:
PETITION APPROVING ENACTMENT OF COUNTY ORDINANCE RELATING
TO OBSCENE MATTER
Each of the undersigned certifies that he or she is a person
residing in ______________________ County, West Virginia, and is
duly qualified to vote in said county under the laws of the
State, and that his or her name, address and the date of signing
this petition are correctly set forth below.
The undersigned petition said county commission to call and
hold a local option election upon the following question: Shall
the county commission of ________________ County, West Virginia,
be authorized to enact an ordinance relating to obscene matter in
the form set out herein : (here insert proposed ordinance)
NAME ADDRESS DATE
_____________________ ____________________ ___________
_____________________ ____________________ ___________
(Each person signing must specify either his post-office address
or his street number).
Upon the filing of a petition for a local option election in
accordance with the provisions of this section, the county
commission shall enter an order calling a local option election
and providing that the same shall be held at the same time and as
a part of the next primary or general election to be held in said
county. The county commission shall give notice of such local
option election by publication in two newspapers of opposite
politics and of general circulation within the county. The
notice shall be given at least once each week for two successive
weeks prior to the date of the election. If there is only onenewspaper published in the county, publication of the notice
therein shall be sufficient.
Each person qualified to vote in the county at the primary
or general election shall likewise be qualified to vote at the
local option election. The election officers appointed and
qualified to serve as such at the primary or general election
shall conduct the local option election in connection with and as
a part of the primary or general election. The ballots in the
local option election shall be counted and returns made by the
election officers and the results certified by the commissioners
of election to the county commission which shall canvass the
ballots, all in accordance with the laws of the state of West
Virginia relating to primary and general elections insofar as the
same are applicable. The county commission shall, without delay,
canvass the ballots cast at the local option election and certify
the result thereof.
The ballot to be used in the local option election shall
have printed thereon substantially the following:
"Shall the county commission of ________________________
County be authorized to enact an ordinance relating to obscene
matter in the form set out herein ? (insert proposed ordinance)
/ / YES / / NO
(Place a cross mark in the square opposite your choice.)"
If a majority of the voters voting at any such local option
election vote "no" on the foregoing question, the county
commission shall not thereafter be permitted to enact theproposed ordinance relating to obscene matter, as the case may
be, unless thereafter authorized so to do.
If a majority of the qualified voters cast their votes
against the question, the question may not be submitted to a vote
at any subsequent election in the manner specified here until two
years after the date of the previous referendum.
NOTE: The purpose of this bill is to define obscenity and
to provide new criminal penalties for persons who disseminate or
promote obscene material in counties. The bill also provides for
county commissions to adopt ordinances relating to obscene matter
and to hold local option elections to approve or disapprove of
such ordinances.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§7-1-4a is new; therefore, strike-throughs and underscoring
have been omitted.
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