Senate Bill No. 263
(By Senators Dittmar, By Request and Craigo)
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[Introduced January 30, 1998; referred to the Committee
on the Judiciary.]
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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, relating to imposing greater
penalties for the criminal offense of displaying obscene
materials; and modifying the language of the statute in
order to bring it into constitutional compliance.
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 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:
(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
over the age of eighteen years.
(4) "Obscene" means matter which
(i) the average individual applying contemporary community standards would find
(i) taken as
a whole, appeals to the prurient interest; (ii) depicts or
describes 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 theater, marquee, newsstand,
display rack, window, showcase, display case or similar public
place so that material can be purchased or viewed by individuals.
Section
1a 2. Injunctive relief.
The circuit court shall have 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 for making such
application. No bond shall be required unless for good cause
shown.
Section
2 3. Activities prohibited; penalties.
Any person who knowingly sends or causes to be sent or
causes 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
or her 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 ten thousand
dollars or imprisoned in the county jail
or regional not more
than
thirty days one year or both fined and imprisoned. A person
convicted of a second or subsequent offense under this ordinance
is guilty of a
misdemeanor felony and, upon conviction thereof,
shall be fined not more than
one twenty thousand dollars or
imprisoned
in the county jail a state correctional institution
not more than
six months two years or both fined and imprisoned.
Section
3 4. Prosecution by presentment or indictment.
No person may be prosecuted for an offense under this
ordinance except by indictment or information.
Section
4 5. Employees acting within scope of employment shall not be prosecuted.
No employee shall be 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
obscene matter while acting within the scope of his
or her
regular employment, unless such employee has a proprietary
interest in such obscene matter or is a shareholder or officer of
a corporation which has a proprietary interest in such obscene
matter.
Section 5. Exceptions.
Nothing in this ordinance shall 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.
NOTE: The purpose of this bill is to impose greater
penalties for the criminal offense of displaying obscene
materials, to modify the language of the statute in order to
bring it into constitutional compliance, and to correct one
misspelling.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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