ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 351
(By Senators Burdette, Mr. President,
Plymale, Minard, Sharpe, Anderson, Whitlow,
Boley, Schoonover, Ross and Helmick)
__________
[Originating in the Committee on the Judiciary;
reported March 1, 1994.]
__________
A BILL to amend chapter sixty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight-g, relating
to obscene material; prohibiting the dissemination of
obscene material; prohibiting the creation, buying,
procuring or possession of obscene material with the intent
to disseminate it; prohibiting the advertising of or
promoting the sale of obscene material; injunctive relief;
exemption from prosecution of certain employees; and
providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eight-g, to readas follows:
ARTICLE 8G. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE
MATERIAL.
§61-8G-1. Obscene material and exhibitions.
(a) It shall be unlawful for any person, firm or corporation
to knowingly and intentionally disseminate obscenity. A person,
firm or corporation disseminates obscenity within the meaning of
this article if the person, firm or corporation:
(1) Sells, delivers or provides or offers or agrees to sell,
deliver or provide any obscene writing, picture, record or other
representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance or other
performance or participates directly in that portion thereof
which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available
anything obscene; or
(4) Exhibits, presents, rents, sells, delivers or provides
or offers or agrees to exhibit, present, rent or to provide any
obscene still or motion picture, film, filmstrip, or projection
slide, or sound recording, sound tape or sound track, or any
matter or material of whatever form which is a representation,
embodiment, performance or publication of the obscene.
(b) For purposes of this article any material is obscene if:
(1) The material depicts or describes in a patently
offensive way sexual conduct specifically defined by subsection
(c) of this section; and
(2) The average person applying statewide contemporary
community standards relating to the depiction or description ofsexual matters would find that the material taken as a whole
appeals to the prurient interest in sex; and
(3) A reasonable person would find that the material taken
as a whole lacks serious literary, artistic, political or
scientific value; and
(4) The material as used is not protected or privileged
under the Constitution of the United States or the Constitution
of West Virginia.
(c) As used in this article, "sexual conduct" means:
(1) Vaginal, anal or oral intercourse, whether actual or
simulated, normal or perverted; or
(2) Masturbation, excretory functions or lewd exhibition of
uncovered genitals; or
(3) An act or condition that depicts torture, physical
restraint by being fettered or bound, or flagellation of or by a
nude person or a person clad in undergarments or in revealing or
bizarre costume.
(d) Obscenity shall be judged with reference to ordinary
adults except that it shall be judged with reference to children
or other especially susceptible audiences if it appears from the
character of the material or the circumstances of its
dissemination to be especially designed for or directed to such
children or audiences.
(e) It shall be unlawful for any person, firm or corporation
to knowingly and intentionally create, buy, procure or possess
obscene material within the meaning of this article with the
purpose and intent of disseminating it unlawfully.
(f) It shall be unlawful for a person, firm or corporationto advertise or otherwise promote the sale of material
represented or held out by said person, firm or corporation as
obscene.
(g) Any person who knowingly violates subsection (a), (e) or
(f) of this section is guilty of a felony, and, upon conviction
thereof, shall be imprisoned in the penitentiary for not less
than one year nor more than five years or fined not less than
five hundred dollars nor more than ten thousand dollars or both
fined and imprisoned. A corporation or firm that violates said
subsections is guilty of a felony and, upon conviction thereof,
shall be fined not less than five thousand dollars nor more than
twenty-five thousand dollars.
§61-8G-2. Injunctive relief.
The circuit court has jurisdiction to issue an injunction to
enforce the purposes of this article upon petition by the
prosecuting attorney or any citizen of the county who can show
reasonable cause for making such application. No bond may be
required unless for good cause shown.
§61-8G-3. Employees acting within scope of employment shall not
be prosecuted.
No employee is guilty of a violation of this article 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.