Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
              Introduced Senate Bill 278
             By Senator Azinger [Introduced January 18, 2023; referred to the Committee on the Judiciary]
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  A BILL amend and reenact §61-8-9 and §61-8-27 of the Code of West Virginia, 1931, as amended;
          to amend and reenact §61-8A-1 of said code; and to amend and reenact §61-9-1, §61-9-3,
          §61-9-4, §61-9-5, §61-9-6, §61-9-8, §61-9-9, and §61-9-10, all generally relating to
          protecting minors from exposure to indecent displays of a sexually explicit nature,
          including but not limited to, transvestite and/or transgender exposure in performances or
          displays to minors.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
     §61-8-9.                                    Indecent exposure.
          (a) A person is guilty of indecent exposure when such person intentionally engages in
  obscene matter or sexually explicit conduct as defined in §61-8A-1 of this code, or exposes his or
  her sex organs or anus or the sex organs or anus of another person, or intentionally causes such
  exposure by another or engages in any overt act of sexual gratification, and does so under
  circumstances in which the person knows that the conduct is likely to cause affront or alarm:
  Provided, That it is not considered indecent exposure for a mother to breast feed a child in any
  location, public or private.
          (b) Except as provided in subsection (c), any person who violates the provisions of this
  section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not
 more than ninety days six months, or fined not more than $250 1,000, or both fined and confined.
         (c) Any person who violates the provisions of subsection (a) of this section by intentionally
 exposing himself or herself to another person and the exposure was done for the purpose of
 sexual gratification, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not
 more than $2,500 or confined in jail not more than twelve months, or both. For a second offense,
 the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1
 5,000 and confined in jail for not less than thirty days six months nor more than twelve months. For
 a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be
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 fined not more than $3,000 7,500 and imprisoned in a state correctional facility for not less than
 one year nor more than five years.
     §61-8-27. Unlawful admission of children to a venue, dance house, etc.; penalty.
          Any proprietor or any person in charge of: (1) any venue where obscene matter or sexually
  explicit conduct as defined in §61-8A-1 of this code is engaged in or displayed or allowed to be
  engaged in or displayed, or (2) a dance house, concert saloon, theater, museum, or similar place
  of amusement, or other place, where wines or spirituous or malt liquors are sold or given away, or
  (3) any place of entertainment injurious to health or morals who admits or permits to remain therein
  any minor under the age of 18 years, unless accompanied by his or her parent or guardian is guilty
  of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $2500:
  Provided, That there is exemption from theis prohibitions under subsections (ii) and (iii) for: (a) A
  private bakery, private cigar shop, private caterer, private club restaurant, private manufacturer
 club, private fair and festival, private resort hotel, private hotel, private golf club, private food truck,
 private nine-hole golf course, private tennis club, private wedding venue or barn, private outdoor
 dining and private outdoor street dining, private multi-vendor fair and festival license, private
 farmers market, private college sports stadium or coliseum, private professional sports stadium,
 and a private multi-sports complex licensed pursuant to §60-7-1 et seq. of this code and in
 compliance with, §60-7-2(6)(iv), §60-7-2(7)(D), §60-7-2(8)(I), §60-7-2(10)(L), §60-7-2(11)(D),
 §60-7-2(12)(H), §60-7-2(13)(6), §60-7-2(14)(H), 60-7-2(15)(H), §60-7-2(16)(G), §60-7-2(17)(G),
 §60-7-2(18)(H), §60-7-2(19)(H), §60-7-2(20)(H), §60-7-2(21)(L), §60-7-2(22)(H), §60-7-2(23)(H),
 §60-7-8c(b)(14), §60-7-8d, and §60-8-32a of this code; or (b) a private club with more than 1,000
 members that is in good standing with the Alcohol Beverage Control Commissioner, that has been
 approved by the Alcohol Beverage Control Commissioner; and which has designated certain
 seating areas on its licensed premises as nonalcoholic liquor and nonintoxicating beer areas, as
 noted in the licensee’s floorplan, by using a mandatory carding or identification program by which
 all members or guests being served or sold alcoholic liquors, nonintoxicating beer or
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 nonintoxicating craft beer are asked and required to provide their proper identification to verify
 their identity and further that they are of legal drinking age, 21 years of age or older, prior to each
 sale or service of alcoholic liquors, nonintoxicating beer or nonintoxicating craft beer: Provided
 further, That no exemption exists whatsoever for the prohibition set forth in subsection (i).
     ARTICLE 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE
               MATTER TO MINORS.
     §61-8A-1.                                                                                Definitions.
            When used in this article, the following words, and any variations thereof required by the
  context, shall have the meaning ascribed to them in this section:
            (a) "Adult" means a person eighteen years of age or older.
            (b) "Computer" means an electronic, magnetic, optical, electrochemical or other high-
  speed data processing device performing logical, arithmetic or storage functions and includes any
  data storage facility or communication facility directly related to or operating in conjunction with
  such device. As used in this article, computer includes file servers, mainframe systems, desktop
  personal computers, laptop personal computers, tablet personal computers, cellular telephones,
  game consoles and any electronic data storage device or equipment. The term "computer"
 includes any connected or directly related device, equipment or facility which enables the
 computer to store, retrieve or communicate computer programs, computer data or the results of
 computer operations to or from a person, another computer or another device, but such term does
 not include an automated typewriter or typesetter, a portable hand-held calculator or other similar
 device.
           (c) "Computer network" means the interconnection of hardware or wireless communication
 lines with a computer through remote terminals, or a complex consisting of two or more
 interconnected computers.
           (d) "Display" means to show, exhibit or expose matter, in a manner visible to general or
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 invited public, including minors. As used in this article, display shall include the placing or
 exhibiting of matter on or in a billboard, viewing screen, theater, marquee, newsstand, display
 rack, window, showcase, display case or similar public place.
         (e) "Distribute" means to transfer possession, transport, transmit, sell or rent, whether with
 or without consideration.
         (f) "Employee" means any individual who renders personal services in the course of a
 business, who receives compensation and who has no financial interest in the ownership or
 operation of the business other than his or her salary or wages.
         (g) "Graphic", when used with respect to a depiction of sexually explicit conduct, means
 that a viewer can observe any part of the genitals or pubic area of any depicted person or animal
 during any part of the time that the sexually explicit conduct is being depicted.
         (h) "Identifiable minor" means a person: (A) who was a minor at the time the visual
 depiction was created, adapted, or modified; or (B) whose image as a minor was used in creating,
 adapting, or modifying the visual depiction; and (C) who is recognizable as an actual person by the
 person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other
 recognizable feature; and shall not be construed to require proof of the actual identity of the
 identifiable minor.
         (i) "Indistinguishable" used with respect to a depiction, means virtually indistinguishable, in
 that the depiction is such that an ordinary person viewing the depiction would conclude that the
 depiction is of an actual minor engaged in sexually explicit conduct.
         (j) "Internet" means the international computer network of both federal and nonfederal
 interoperable packet switched data networks.
         (j) (k)"Knowledge of the character of the matter" means having awareness of or notice of
 the overall sexual content and character of matter as depicting, representing or describing
 obscene matter.
         (k) (l) "Matter" means any visual, audio, or physical item, article, production transmission,
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 publication, display, exposure, exhibition, or live performance, or reproduction thereof, including
 any two- or three- dimensional visual or written material, stereopticon, moving picture, slide, film,
 picture, drawing, not exceeding $500 video, graphic, graphic novel, or computer generated or
 reproduced image; or any book, not exceeding $500 magazine, newspaper or other visual or
 written material; or any motion picture or other pictorial representation; or any statue or other
 figure; or any recording, transcription, or mechanical, chemical, or electrical reproduction; or any
 other articles, video laser disc, computer hardware and software, or computer generated images
 or message recording, transcription, or object, or any public or commercial live exhibition
 performed for consideration or before an audience of one or more.
           (l) (m) "Minor" means an unemancipated person under eighteen years of age.
           (m)(n) "Obscene matter" means matter that:
           (1) An average person, applying contemporary adult community standards, would find,
 taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is
 pandered to a prurient interest;
           (2) An average person, applying community standards, would find depicts or describes, in
 a patently offensive way, sexually explicit conduct; and
           (3) A reasonable person would find, taken as a whole, lacks serious literary, artistic,
 political or scientific value.
           (4) For the purposes of any prohibition, protection, or requirement under any and all
 articles and sections of this code protecting children from exposure to indecent displays of an
 obscene or sexually explicit nature, such prohibited displays shall include, but not be limited to,
 any transvestite and/or transgender exposure, performances, or display to any minor.
           (n) (o) "Parent" includes a biological or adoptive parent, legal guardian or legal custodian.
           (o) (p) "Person" means any adult, partnership, firm, association, corporation or other legal
 entity.
           (p)(q) "Sexually explicit conduct" means an ultimate definitive sexual act between persons
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 of the same or opposite sex, normal or perverted, actual or simulated, including genital-genital,
 oral-genital, anal-genital, or oral-anal sexual intercourse, sodomy, oral copulation of any kind,
 sexual bestiality, sexual sadism and masochism, masturbation, excretory functions and lewd
 exhibition of the anus, genitals or pubic area of any person, or lascivious simulated sexual
 intercourse where the genitals, breast, or pubic area of any person is exhibited.
     ARTICLE 9. EQUITABLE REMEDIES IN AID OF CHASTITY, MORALITY AND
            DECENCY.
     §61-9-1.                         Definition of                        terms.
         For the purposes of this article the terms "place," "person," "nuisance" are defined as
  follows:" Place" shall include any building, structure, erection or place, or any separate part or
  portion thereof, or the ground itself; "person" shall include any individual, corporation, association,
  partnership, trustee, lessee, agent or assignee; "nuisance" shall mean any place as above defined
  in or upon which lewdness, obscene matter, sexually explicit conduct as defined in §61-8A-1 of
  this code, assignation, or prostitution is conducted, permitted, continued or exists, and the
  personal property and contents used in conducting or maintaining any such place for any such
  purpose.
     §61-9-3. Suit to enjoin; by whom instituted.
         Whenever a nuisance exists, as defined in §61-9-1 of this code, the Attorney General of
  the state, the prosecuting attorney of the county wherein the same exists, or any person who is a
  citizen, resident or taxpayer of the county, may bring suit in equity in the name of the State of West
  Virginia, upon the relation of such Attorney General, prosecuting attorney, or any person, to abate
  such nuisance and to perpetually enjoin the person or persons maintaining the same any such
  nuisance from further maintenance thereof.
     §61-9-4. Venue; procedure; temporary injunction; order closing place; vacation of orders;
            bond.
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          Such suit shall be brought in the circuit court of the county in which the property is located,
  or in any other court of the county having equity jurisdiction. The bill of complaint and other
  pleadings, and all proceedings in the case, shall conform to the law of the state with respect to
  equity procedure and to the rules and principles governing courts of equity, except so far as
  otherwise herein provided.
          At the time of the commencement of the suit, or at any time during the pendency thereof,
  the plaintiff or his or her attorney may file in the office of the clerk of the county court of the county
  in which such property is located a memorandum or notice setting forth the title of the case, the
  court in which it is pending, the general object of the suit, a brief description of the property to be
 affected thereby, and the name of the person or persons whose estate is intended to be affected
 by such suit. Such notice shall immediately be recorded by the clerk of the county court in the deed
 book, and he or she shall index the same in the name of all the parties whose interest in such
 property is to be affected; and such notice shall, from and after its recordation, be notice to all
 purchasers of such property of the pendency of such suit.
         Upon the application for an injunction in such suit, the court or judge may, in his or her
 discretion, enjoin the defendants and all other persons from removing or in any manner interfering
 with the personal property and contents of the place where such nuisance is alleged to exist, until
 the final decision of the case. A copy of such injunction order may be posted in a conspicuous
 place upon the premises proceeded against, and any person thereafter removing or interfering
 with such property shall be guilty of a violation of such injunction, and any person removing or
 mutilating such copy of the order so posted, while the same remains in force, shall be guilty of
 contempt of court, provided such posted notice or order contains thereon or therein a notice to that
 effect. The officer serving such injunction order shall forthwith make and return into court an
 inventory of the personal property and contents situated in the building or place proceeded against
 and used in conducting or maintaining such nuisance.
         If, at the time of granting a temporary injunction, the same shall appear proper, the court or
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 judge granting the same may order the place proceeded against to be closed and not used for any
 purpose until the final decision of the case: Provided, however, That the owner of any property so
 closed or restrained may appear at any time before final hearing and decision, and upon payment
 of all the costs incurred, and upon the filing of a bond, with sureties to be approved by the clerk, in
 the amount of the full value of the property, to be ascertained by the court or judge, conditioned
 that such owner will immediately abate the nuisance and prevent the same from being established
 or kept until final decision of the case, then and in that case the court or judge, if satisfied of the
 good faith of the owner of the real or personal property and of his or her innocence of any
 knowledge of the use of such property as a nuisance, a