Senate Bill No. 352
(By Senators Burdette, Mr. President, Plymale,
Minard, Sharpe, Ross, Schoonover, Anderson,
Whitlow, Boley and Helmick)
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[Introduced February 14, 1994;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact article eight-a, chapter sixty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to prohibiting the
preparation, dissemination or exhibition of obscene material
to minors; definitions; injunctive relief; prohibiting
hiring, employing or using minors in doing obscene acts; and
criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article eight-a, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 8A. PREPARATION, DISSEMINATION OR EXHIBITION OF OBSCENE
MATERIAL TO MINORS.
§61-8A-1. Obscene material and exhibitions.
(a) For purposes of this article, the term "minor" means anindividual under the age of eighteen years. It shall be unlawful
for any person, firm or corporation to knowingly and
intentionally intentionally disseminate obscenity to a minor. 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 contemporary community
standards relating to the depiction or description of sexual
matters would find that the material taken as a whole appeals tothe 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 minors 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
minors 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 to a minor.
(f) It shall be unlawful for a person, firm or corporation
to advertise or otherwise promote the sale of material to a minor
which is represented or held out by said person, firm or
corporation as obscene.
(g) It shall be unlawful for any person, firm or
corporation, who with knowledge that an individual is under the
age of eighteen years, or who should reasonably know that such
individual is under the age of eighteen years, to hire, employ or
use a minor in doing any of the acts which are for the purposes
of this article obscene.
(h) Any person who knowingly violates subsections (a), (e),
(f) or (g) 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
subsection (a), (e), (f) or (g) of this section 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.
The sentence provided herein upon conviction for a violation of
subsections (a), (e), (f) or (g) of this section are mandatory
and shall not be subject to suspension or probation.
§61-8A-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 showreasonable cause for making such application. No bond may be
required unless for good cause shown.
§61-8A-3. Reasonable belief that a minor is eighteen years of age
No person, firm or corporation shall be guilty of
distributing or exhibiting obscene material to a minor when such
person has reasonable cause to believe that the minor involved
was eighteen years of age or more and such minor exhibited to
such person a driver's license, draft card or other official or
apparently official document purporting to establish that such
minor was eighteen years of age or more.
NOTE: The purpose of the bill is to define obscenity and
provide new mandatory criminal penalties for those who
disseminate or promote obscene material to minors or use minors
in obscene acts.