Senate Bill No. 441
(By Senators Kessler, Dempsey, Fanning, Foster, Hunter, Jenkins,
Minard, Oliverio, White, Barnes, Caruth, Deem, Harrison, Lanham,
McKenzie and Weeks)
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[Originating in the Committee on the Judiciary;
reported January 31, 2006.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-12-10b, relating
generally to prohibiting public display of autopsy
photographs; allowing civil actions and recovery of monetary
damages for violations; and exceptions.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-12-10b to read as
follows:
ARTICLE 12. POSTMORTEM EXAMINATIONS.
§61-12-10b. Prohibiting public display of autopsy photographs;
exceptions; penalties.
(a) A person shall not publicly display an autopsy photograph
of any decedent or otherwise publicly display any autopsy
photograph of a decedent that identifies the decedent by name, face, or other identifying physical feature unless one of the
following exceptions are met:
(1) An authorized individual specifically provides written
authorization for the public display of the autopsy photograph; or
(2) The photograph either: (I) Has written authorization by
the prosecuting attorney having jurisdiction for a purpose directly
related to the investigation or prosecution of a criminal case;
(ii) is authorized by a circuit court for a purpose directly
related to the proceedings in a civil case; (iii) is required for
a health department to carry out its lawful duties; or (iv) is
necessary for legitimate research or teaching of only medical,
public health or public safety personnel or students enrolled at a
post-secondary educational institution.
(b) In addition to any other remedy that may exist, a
decedent's parent, surviving spouse and children who are injured as
a result of a violation of this section may bring a civil action to
recover one thousand dollars or actual damages, whichever is
greater, plus costs and reasonable attorney fees: Provided, That
this subsection shall not apply to an internet service provider or
computer network service provider who in good faith, and without
knowledge of the content of the photograph, provides the medium for
the public display of such photograph: Provided, however, That
this section shall not prohibit constitutionally protected speech
or activity.
(c) As used in this section:
(1) "Autopsy photograph" means an image of a decedent obtained
during an autopsy of that decedent in this state and includes an
image on videotape, motion picture or other film, or an image
captured by digital means.
(2) "Decedent" means a deceased human being.
(3) "Authorized individual" means a person specifically
nominated by will or other writing signed by the decedent. If said
person cannot be identified or located following a diligent and
good faith effort, the following shall be duly authorized and
empowered as the authorized individual, in specific order and rank:
(I) The decedent's spouse; (ii) an adult child of the decedent;
(iii) a parent of the decedent; (iv) the next of kin of the
decedent; (v) an individual charged by law with the responsibility
for burial or cremation of the decedent's body.
(4) "Public display" means to knowingly communicate, exhibit
or display in open view or to distribute to members of the public
or in a public manner, whether or not for commercial purposes,
through any medium of communication including, but not limited to,
the internet or a computer, computer network, computer program or
computer system.
(5) "Internet service provider" means a person who provides a
service that enables users to access content, information,
electronic mail or other services offered over the internet.
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(NOTE: The purpose of this bill is to prohibit the public
display of autopsy photographs and to allow a cause of action for
violations.
§61-12-10b is new; therefore, underscoring and strike-throughs
have been omitted.
)
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