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Engrossed Version Senate Bill 351 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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