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West Virginia Sexting Laws

Under West Virginia sexting laws (H.B. 2357), any teen who completes the state’s diversion program will not be under the statute for their breach of law.

Quick take:

  • State law requires prosecutors to prioritize the diversion program if both the accused and victim are below 18.
  • Successful completion of the state’s diversion program will result in charge dismissal.
  • the diversion program is only open to first time offenders.
  • Repeat teen offenders may face trial in adult court if the crime constitutes a felony.
  • If tried in the juvenile system, the teen will not have to register as a sex offender.

West Virginia sexting law summary

Before the introduction of sexting laws in west Virginia, teens convicted of creating and disseminating explicit images of themselves or someone else’s underwent trial under the state’s child pornography statutes. That often led to sex offender registration, in some cases, for life. Then, in 2012, the state legislature introduced House Bill 4483. Article 8A of the bill “preparation, distribution or exhibition of obscene matter to minors: sexting by minors” is West Virginia’s sexting law.

Additionally, in 2013 West Virginia passed H.B. 2357, which states that:

“Any minor who intentionally possesses, creates, produces, distributes, presents, transmits, posts, exchanges, or otherwise disseminates a visual portrayal of another minor posing in an inappropriate sexual manner or who distributes, presents, transmits, posts, exchanges, or otherwise disseminates a visual portrayal of himself or herself posing in an inappropriate sexual manner shall be guilty of an act of delinquency and upon adjudication disposition may be made by the circuit court pursuant to the provisions of article five, chapter forty-nine of this code.”

§49-5-13g. is Sexting educational diversion program, once completed the accused would face no additional charges. The diversion program includes:

  • The legal ramifications and penalties of sexting
  • The non-legal effects of sexting. These include the potential for loss of employment, educational opportunities, and future relationship issues.
  • The effects that the internet have on any images that are ‘out there’. These include searchability, replicability, and an infinite audience.
  • The connection between sexting and bullying

Part A of the statute states that if a teen completes the diversion program, the individual may not be prosecuted under the article.

Instead of pursuing a conviction, the statute requires the prosecuting attorney to allow the minor to voluntarily participate in a diversion program created by the attorney general.

Note that it is up to the prosecutor to decide if a minor qualifies for the diversion program and the admission requirements are:

  • The teen must be a first-time offender. Prior convictions or adjudication disqualifies entry.
  • The act was not intentional or the teen was not aware of his or her actions.
  • both the creator and person depicted were teens at the time of the crime.
  • Imposition of Criminal sanctions may harm the teen.
  • Completion of the program will deter the accused from repeating the offense.

What is the purpose of the program?

Re-education and to prevent teens from repeating the offense. Consequently, the program focuses on the legal consequences and penalties of creating and disseminating child pornography both on the state and federal levels.

What if a teen sends explicit images of themself to an adult?

Note that once a teen turns 18, that individual is legally an adult. Because of that, if an underage girl or boy sends inappropriate images to a partner who is at least 18, possession of that image constitutes child pornography. In addition, the charges may escalate if the adult solicited, enticed, or in any way caused the child to create the image.

If the adult did not solicit the images, taking reasonable steps to destroy the images, or reporting the incident to law enforcement or someone with authority over the child is an affirmative defense that may shield the accused from prosecution.

When does sexting turn into child pornography in West Virginia?

Under WVC 61-8C-3, “Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct,” creation, possession, and dissemination of child pornography are felony offenses. The statute defines a minor or child as anyone below 18 years of age. “Sexually explicit conduct” refers to acts including the lewd exhibition of the genitals/breasts/buttocks, sodomy, intercourse, bestiality, fellatio, and all acts intended to arouse or gratify an individual sexually.

Consequently, any video, picture, or other media that depicts a child engaged in sexually explicit conduct, including nude selfies, constitute child pornography both on the state and federal levels. However, the statute requires prosecutors to consider the number of images possessed or disseminated.

Because of that, possession of fewer than 50 images is punishable by imprisonment for not more than two years and a fine of up to $2000. Possession of more than 50 images but less than 600 is punishable by up to ten years in prison and a $5000 fine. Possession of more than 600 images is punishable by up to 15 years in prison and a $25000 fine.

For videos, each frame is considered a separate image; for example, a five-minute video is equivalent to 75 images. Meaning, the longer the video, the harsher the punishment.

What to remember:

  • Repeat offenders qualify for enhanced punishment -that is- not less than two years in prison and a $10000 fine.
  • Permitting a child under your care to create pornography or to engage in sexual conduct is a felony.

West Virginia sexting laws and distribution and display of obscene material

Under 61-8A-2, it is unlawful for adults to display obscene material to a minor. Consequently, an adult sending nude selfies or pornography to a minor is a prohibited act. Displaying or distributing obscene material to a child is a felony punishable by up to five years in prison and a $25000 fine.

The statute provides three affirmative defenses. (1). The accused displayed the media at a location where minors are restricted. (2) the accused used a blinder rack. (3) the accused took reasonable steps to obtain, receive or check the identification cards or documents of the victim.

Teen or adult court?

If the teen is above 14 and the court has previously adjudicated the individual delinquent. Prosecutors may petition the court for trial in adult court if the teen commits a crime that would be a felony if committed by an adult. Once transferred to adult court, west Virginia’s sexting laws are no longer applicable, meaning the teen may face trial under the state child pornography laws.

Upon conviction for possession, dissemination, or creation of child pornography, the accused must register as a sex offender and serve adult punishment.

If the prosecutors choose to pursue sexting charges, the accused will not have to register as a sex offender.

What if the teen chooses not to enroll in the diversion program?

The trial will proceed. If prosecuted in the juvenile system or family court, the judge may order electronic monitoring, supervision, community service, time at a juvenile facility, restitution, a fine, or other rehabilitative punishment.

West Virginia sexting laws and soliciting a minor via computer

Section 61-3C-14B. “Soliciting, ETC, A minor via compute; soliciting a minor and travelling to engage the minor in prohibited sexual activity.” States that it is unlawful for any adult to knowingly use a computer or other communication device to seduce, lure, solicit, or entice a minor to engage in sexual conduct. Violation of the statute is a felony punishable by up to ten years in prison and a $5000 fine.

If the accused takes a significant step toward meeting the child, say travels, the crime escalates into a felony punishable by up to thirty years in prison and a $25000 fine.

Note that soliciting, attempting to solicit, and conspiring to solicit sexual conduct via an electronic device is a state and a federal felony. On the federal level, the punishment is anywhere from ten years to life in prison upon conviction.

Remember: federal law applies if the activity happens across state or international borders.

West Virginia sexting laws and nonconsensual disclosure of private intimate images

Under 61-8028A, it is unlawful for any adult to disclose, cause to disclose, or threaten another, with the intent to humiliate, intimidate, harass, or coerce, a visual depiction showing the victim in a state of nudity. A first violation of the statute is a misdemeanor punishable by a fine, not less than $1000 and not more than $5000 and or up to one year in state jail.

If the accused has a prior conviction, unlawful dissemination escalates into a felony, punishable by up to three years in prison and a fine, not less than $2500.

Note: victims of revenge porn/unlawful dissemination may take civil action against the accused. Also, the statute does not apply to images taken voluntarily in a public setting, meaning the victim must have had a reasonable expectation of privacy when the image was created.

References

Other West Virginia Laws

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