SB 352 Text

COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 352
(By Senators Burdette, Mr. President, Plymale,
Minard, Sharpe, Ross, Schoonover, Anderson,
Whitlow, Boley and Helmick)
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[Originating in the Committee on the Judiciary;
reported March 1, 1994.]
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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 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 statewide contemporary community standards relating to the depiction or description of sexual 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 takenas 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 subsection (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 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. The sentence provided herein upon conviction for a violation of said subsections 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 show reasonable 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 involvedwas 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.

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(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.)

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