There has been a spirited debate about House Bill 4654 since the opening of the legislative session, culminating with the public hearing held on the bill last week. As the lead sponsor of the bill, I feel compelled to respond to the intentional disinformation being spread about the bill.
House Bill 4654 deals with W. Va. Code 61-8A-3 entitled “Exemptions from Criminal Liability”, which provides for defenses to the crime in the preceding section, W. Va. Code 61-8A-2 entitled “Distribution and display to minor of obscene matter; penalties; defenses.” The code states that:
“Any adult, with knowledge of the character of the matter, who knowingly and intentionally distributes, offers to distribute, or displays to a minor any obscene matter, is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars, or confined in a state correctional facility for not more than five years, or both.”
This has been the law in the State of West Virginia for a great period of time, and it is well-settled. Prosecutors, defense attorneys, law enforcement officers, and other actors within the criminal justice system are aware of the parameters and applicability of the law.
After reading the code, one must ask, “What is obscene matter?” For that, you go to the previous section, W. Va. Code 61-8A-1 entitled “Definitions.” In the definition section obscene matter is defined as:
(k) “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.”
This section of code informs the public of exactly what is defined as obscene material. It is a definition that has served to allow for the exploration of contemporary standards in light of the protections of the first amendment to advance public debate and appreciation for literary, artistic, political, or scientific material. Another word that appears in this section is “prurient.” Prurient is defined in The Oxford Dictionary as “having or encouraging an excessive interest in sexual matters.”
More important than the dictionary, the West Virginia Supreme Court recently, as of May of 2023, stated the definition of prurient as follows:
‘Purely prurient purposes’ means for the specific purpose of sexual gratification or sexual arousal from viewing the visual portrayals prohibited by this section.”
State v. Harper, No. 22-0238, 2023 WL 3196365, at *3 (W. Va. May 2, 2023)
State v. Harper was decided by the Supreme Court in a 5-0 decision. By considering the case law with the statutory definition, we would find a much easier definition appears to us: “A regular person, applying modern standards, would have to find, beyond a reasonable doubt, that taken as a whole, the material is only intended for sexual gratification or arousal.” This means that in order for someone to be convicted under W. Va. Code 61-8A-2, 12 jurors would have to find beyond a reasonable doubt that an adult, having full knowledge of the material, knowingly presented the material to persons they knew to be minors, and they would have to know that the material’s sole purpose was for sexual gratification or sexual arousal. To be convicted, a person would literally have to be showing pornography to minors. Not Tom Sawyer and Huckleberry Finn, not the Bible, not War and Peace, not a History of Wales, or even an 8th grade Health textbook. It would have to be defined by those 12 jurors as something with literally no literary, artistic, political, or scientific value that’s only purpose was sexual gratification or arousal… unless an exception applies.
This brings us back to the purpose of HB 4654, to amend the exceptions. The entirety of 61-8A-3, the exceptions, reads as follows:
The criminal provisions of section two of this article do not apply to:
(a) A bona fide school, in the presentation of local or state approved curriculum;
(b) A public library, or museum, which is displaying or distributing any obscene matter to a minor only when the minor was accompanied by his or her parent;
(c) A licensed medical or mental health care provider, or judicial or law-enforcement officer, during the course of medical, psychiatric, or psychological treatment or judicial or law-enforcement activities;
(d) A person who did not know or have reason to know, and could not reasonably have learned, that the person to whom the obscene matter was distributed or displayed was a minor and who took reasonable measures to ascertain the identity and age of the minor;
(e) A person who routinely distributes obscene matter by the use of telephone, computer network or the internet and who distributes such matter to any minor under the age of eighteen years after the person has taken reasonable measures to prevent access by minors to the obscene matter; or
(f) A radio or television station, cable television service or other telecommunications service regulated by the federal communications commission.
Starting with section C and proceeding, it allows for actors in the criminal justice system work their cases by interviewing minors that have been crime victims, in which they may have to have the minor confirm the authenticity of certain materials that may have been presented to them. Going further, it protects individuals that have taken appropriate steps to prevent minors from observing prurient materials, and finally, those mediums that are regulated by the federal government. I might add, the federal penalties for the intentional display of this material to minors are far greater than the state penalties.
House Bill 4654 deals with striking subparagraphs (a) and (b). What is the net effect of this? Essentially, if it is illegal in the parking lot, it is illegal in the building. If it is illegal for you to display the material to a minor in your home, it is illegal for you to display it to that minor at the library or at school. It truly is as simple as that. The proposal removes the government sponsored sanctuaries that are being used to display pornographic material to minors. This is an act that is described in the psychological field and law enforcement community as “grooming.” The presentation of the obscene material by the adult to the minor is an act of grooming, making that child more susceptible to sexual assault or abuse. This bill dismantles these sanctuaries for pedophilia.
I have heard from people that would say “Even the Bible could be banned!” Do you see any Sunday School teachers getting arrested for reading bibles to their minor students? Are parents getting arrested for reading Tom Sawyer and Huckleberry Finn to their kids at night? Absolutely not. The opponents of this bill are feeding misinformation and spreading logical fallacies that even a child could see through.
This bill does not ban a single book. It stops criminals from using the sanctuary of schools, libraries, and museums to groom children for sexual abuse. This bill eliminates the safe space created for criminals to perform an act that would, outside that space, land them in prison for up to five years.
The real question that should be asked is “What good reason do you have to provide immunity for a criminal act against a child victim?” I can find no good reason, and for that reason I introduced this bill several years ago at the prompting of librarians and teachers that I represent that showed me the real problems that are going on due to this illegal activity being carried out in the sanctuary of our schools and libraries.
Another real question, put towards the opponents of the bill, is “Who are you seeking to protect, that is presenting obscene material to minors, and why are you protecting them by opposing this bill?”