H. B. 2357

         (By Delegates Poore, Marshall, Moore, Hamilton, Miley, Longstreth, Caputo, Manchin and Ellem)

         [Introduced February 13, 2013; referred to the

         Committee on the Judiciary then Finance.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-8A-6, relating to sexting by minors; requiring Attorney General to develop an educational diversion program; providing rule-making authority; providing criteria to be used by prosecuting attorney for admittance into program; requiring individual prosecuting attorneys to operate program; requiring the West Virginia Prosecuting Attorneys Institute to oversee the administrative procedures for the program; and creating the opportunity to avoid prosecution for completion of the educational diversion program.

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 §61-8A-6, to read as follows:

ARTICLE 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE MATTER TO MINORS; SEXTING BY MINORS.

§61-8A-6. Sexting educational diversion program.

    (a) A minor who uses telecommunications device to knowingly transmit or distribute to another minor a photograph, text message with a photo attachment, or other transmitted material of any kind depicting himself or herself, or another minor in a state of sexual activity or a state of sexually explicit nudity may not be prosecuted under the provisions of this article, if the minor successfully completes the program provided by this section.

    (b) Instead of pursuing a conviction for a violation of this article for activity described in subsection (a) of this section, a prosecuting attorney shall allow an eligible minor to participate in the program developed by the Attorney General under this section.

    (c) (1) The Attorney General, in consultation with the Administrative Office of the West Virginia Supreme Court of Appeals shall develop an educational diversion program for minors who may be accused of activity described in subsection (a) of this section.

    (2) The program shall provide information concerning:

    (A) The legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable federal and state statutes;

    (B) The nonlegal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities;

    (C) How the unique characteristics of cyberspace and the Internet, including searchability, replicability and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials; and

    (D) The connection between bullying and cyber-bullying and minors sharing sexually suggestive or explicit materials.

    (3) To effectuate the provisions of this subsection, the Attorney General may adopt procedural and interpretive rules, and propose legislative rules for legislative approval, all in accordance with the provisions of article three, chapter twenty-nine-a of this code.

    (4) The operation of the program in a county is under the direct supervision and control of the prosecuting attorney. The prosecuting attorney may contract for services with a county or municipality in the circuit necessary in conducting the program.

    (5) The West Virginia Prosecuting Attorneys Institute shall oversee the administrative procedures for the program required by this section.

    (d) The prosecuting attorney shall determine whether a minor is admitted to the program. A minor is eligible to participate in the program if:

    (1) The facts of the case involve the creation, exhibition or distribution without malicious intent of a photograph depicting nudity as defined in that section through the use of an interactive wireless communications device or a computer; and

    (2) The creator and subject of the photograph are minors or were minors at the time of its making.

    (e) Admission to the program is limited to eligible minors who the prosecuting attorney finds:

    (1) Have not previously been adjudicated delinquent for or convicted of a criminal offense under this code, federal law or a law of another state;

    (2) Were not aware that their actions could constitute and did not have the intent to commit a criminal offense;

    (3) May be harmed by the imposition of criminal sanctions; and

    (4) Would likely be deterred from engaging in similar conduct in the future by completing the program.

    NOTE: The purpose of this bill is to require the Attorney General to develop an educational diversion program for minors accused of sexting. It provides criteria for admittance into a program by a prosecuting attorney and creates the opportunity for minors to avoid prosecution upon the completion of the educational diversion program.

      This section is new; therefore, it has been completely underscored.