MISSISSIPPI LEGISLATURE
2007 Regular Session
To: Judiciary B
By: Representative Lott, Chism, Ellington, Fillingane, Formby, Gregory, Hamilton (6th), Howell, Ishee, Martinson, Moore, Robinson (84th), Rogers (61st), Staples, Upshaw, Weathersby, Palazzo
AN ACT TO PROVIDE THAT FOR VARIOUS SEX ABUSE CRIMES INVOLVING A CHILD UNDER 18 YEARS OF AGE THE PENALTY FOR THE FIRST OFFENSE SHALL BE IMPRISONMENT FOR 25 YEARS IN THE STATE PENITENTIARY WITH NO PAROLE, AND THE PENALTY FOR THE SECOND OFFENSE SHALL BE LIFE IMPRISONMENT WITH NO PAROLE; TO AMEND SECTION 97-3-65, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF STATUTORY RAPE, IN CONFORMITY THERETO; TO AMEND SECTION 97-3-101, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF SEXUAL BATTERY, IN CONFORMITY THERETO; TO AMEND SECTION 97-5-5, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF ENTICING A CHILD, IN CONFORMITY THERETO; TO AMEND SECTION 97-5-23, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF GRATIFICATION OF LUST, IN CONFORMITY THERETO; TO AMEND SECTION 97-5-27, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF COMPUTER LURING, IN CONFORMITY THERETO; TO AMEND SECTION 97-5-35, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF EXPLOITATION OF CHILDREN, IN CONFORMITY THERETO; TO AMEND SECTION 97-5-41, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF CARNAL KNOWLEDGE OF A CHILD, IN CONFORMITY THERETO; TO AMEND SECTION 97-29-3, MISSISSIPPI CODE OF 1972, WHICH PERTAINS TO THE CRIME OF A TEACHER HAVING SEXUAL INTERCOURSE WITH HIS OR HER PUPIL, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-3-65, Mississippi Code of 1972, is amended as follows:
97-3-65. (1) The crime of statutory rape is committed when:
(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person's spouse; or
(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person's spouse.
(2) Neither the victim's consent nor the victim's lack of chastity is a defense to a charge of statutory rape.
(3) Upon conviction for statutory rape, the defendant shall be sentenced as follows:
(a) If eighteen (18) years of age or older, to imprisonment for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense;
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(b) If thirteen (13) years of age or older but under eighteen (18) years of age, to such imprisonment, fine or other sentence as the court, in its discretion, may determine.
(4) (a) Every person who shall have forcible sexual intercourse with any person, or who shall have sexual intercourse not constituting forcible sexual intercourse or statutory rape with any person without that person's consent by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.
(b) This subsection (4) shall apply whether the perpetrator is married to the victim or not.
(5) In all cases where a victim is under the age of sixteen (16) years, it shall not be necessary to prove penetration where it is shown the genitals, anus or perineum of the child have been lacerated or torn in the attempt to have sexual intercourse with the child.
(6) For the purposes of this section, "sexual intercourse" shall mean a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.
SECTION 2. Section 97-3-101, Mississippi Code of 1972, is amended as follows:
97-3-101. (1) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(a) or (b) * * * shall be imprisoned in the State Penitentiary for a period of not more than thirty (30) years, and for a second or subsequent such offense shall be imprisoned in the Penitentiary for not more than forty (40) years.
(2) * * * Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) or (d) or (2) shall be imprisoned for twenty-five (25) years in the State Penitentiary with no parole for a first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense.
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(3) Every person who shall be convicted of sexual battery who is thirteen (13) years of age or older but under eighteen (18) years of age shall be sentenced to such imprisonment, fine or other sentence as the court, in its discretion, may determine.
SECTION 3. Section 97-5-5, Mississippi Code of 1972, is amended as follows:
97-5-5. (1) Every person who shall maliciously, willfully, or fraudulently lead, take, carry away, decoy or entice away, any child under the age of fourteen (14) years, with intent to detain or conceal such child from its parents, guardian, or other person having lawful charge of such child, upon conviction, shall be imprisoned in the State Penitentiary not exceeding ten (10) years, or imprisoned in the county jail not more than one (1) year, or fined not more than One Thousand Dollars ($1,000.00), or both.
(2) Every person who shall maliciously, willfully, or fraudulently lead, take, carry away, decoy or entice away, any child under the age of fourteen (14) years, upon conviction, shall be imprisoned in the State Penitentiary for twenty-five (25) years with no parole for the first offense and shall be imprisoned for life in the State Penitentiary with no parole for a subsequent offense.
SECTION 4. Section 97-5-23, Mississippi Code of 1972, is amended as follows:
97-5-23. (1) (a) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, * * * a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
(b) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, shall be guilty of a felony, and upon conviction thereof, shall be sentenced to imprisonment for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense.
(2) (a) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself who is over the age of eighteen (18) years and under the age of twenty-one (21) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
(b) Upon a second conviction for an offense under this section, the person so convicted shall be punished by commitment to the State Department of Corrections for a term not to exceed twenty (20) years, however, upon conviction and sentencing, the offender shall serve at least one-half (1/2) of the sentence so imposed.
SECTION 5. Section 97-5-27, Mississippi Code of 1972, is amended as follows:
97-5-27. (1) Any person who intentionally and knowingly disseminates sexually oriented material to any person under eighteen (18) years of age shall be guilty of a misdemeanor and upon conviction shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment. A person disseminates sexually oriented material within the meaning of this section if he:
(a) Sells, delivers or provides, or offers or agrees to sell, deliver or provide, any sexually oriented writing, picture, record or other representation or embodiment that is sexually oriented; or
(b) Presents or directs a sexually oriented play, dance or other performance or participates directly in that portion thereof which makes it sexually oriented; or
(c) Exhibits, presents, rents, sells, delivers or provides, or offers or agrees to exhibit, present, rent or to provide any sexually oriented still or motion picture, film, filmstrip or projection slide, or sound recording, sound tape or sound track or any matter or material of whatever form which is a representation, embodiment, performance or publication that is sexually oriented.
(2) For purposes of this section, any material is sexually oriented if the material contains representations or descriptions, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) (a) A person is guilty of computer luring when:
(i) Knowing the character and content of any communication of sexually oriented material, he intentionally uses any computer communication system allowing the input, output, examination or transfer of computer data or computer programs from one (1) computer to another, to initiate or engage in such communication with a person under the age of eighteen (18); and
(ii) By means of such communication he importunes, invites or induces a person under the age of eighteen (18) years to engage in sexual intercourse, deviant sexual intercourse or sexual contact with him, or to engage in a sexual performance, obscene sexual performance or sexual conduct for his benefit.
(b) A person who engages in the conduct proscribed by this subsection (3) is presumed to do so with knowledge of the character and content of the material.
(c) In any prosecution for computer luring, it shall be a defense that:
(i) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor; or
(ii) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to the materials prohibited, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(iii) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or
(iv) The defendant has in good faith established a mechanism such that the labeling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or to circumvent any such screening or blocking.
(d) In any prosecution for computer luring:
(i) No person shall be held to have violated this subsection (3) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
(ii) No employer shall be held liable for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency or the employer, having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly disregards such conduct.
(iii) The limitations provided by this paragraph (d) shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate such provisions, or who knowingly advertises the availability of such communications, nor to a person who provides access or connection to a facility, system or network engaged in the violation of such provisions that is owned or controlled by such person.
(e) Computer luring is a felony, punishable as provided for in this paragraph. Any person convicted of a violation of subsection (3)(a)(i) of this section shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed three (3) years and by a fine not to exceed Ten Thousand Dollars ($10,000.00). Any person convicted of a violation of subsection (3)(a)(ii) of this section shall be punished by imprisonment for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense.
SECTION 6. Section 97-5-35, Mississippi Code of 1972, is amended as follows:
97-5-35. Any person who violates any provision of Section 97-5-33 shall be guilty of a felony and upon conviction shall be fined not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00) and shall be imprisoned for not less than twenty-five (25) years nor more than forty (40) years with no parole. Any person convicted of a second or subsequent violation of Section 97-5-33 shall be fined not less than One Hundred Thousand Dollars ($100,000.00) nor more than One Million Dollars ($1,000,000.00) and shall be confined in the custody of the Department of Corrections for life with no parole.
SECTION 7. Section 97-5-41, Mississippi Code of 1972, is amended as follows:
97-5-41. (1) Any person who shall have carnal knowledge of his or her unmarried stepchild or adopted child younger than himself or herself and over fourteen (14) and under eighteen (18) years of age, upon conviction, shall be punished by imprisonment
for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense.
(2) Any person who shall have carnal knowledge of an unmarried child younger than himself or herself and over fourteen (14) and under eighteen (18) years of age, with whose parent he or she is cohabiting or living together as husband and wife, upon conviction, shall be punished by imprisonment for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense.
SECTION 8. Section 97-29-3, Mississippi Code of 1972, is amended as follows:
97-29-3. If any teacher over the age of eighteen (18) years of age shall have sexual intercourse with any pupil under eighteen (18) years of age, not being married to each other and without the consent of the pupil, the teacher, upon conviction thereof, shall be sentenced to imprisonment for twenty-five (25) years in the State Penitentiary with no parole for the first offense and to life imprisonment in the State Penitentiary with no parole for a subsequent offense. If any teacher over the age of eighteen (18) years of age and any pupil under eighteen (18) years of age of such teacher, not being married to each other and with consent of the pupil, shall have sexual intercourse, each with the other, the pupil shall, for every such offense, be fined in any sum, not more than Five Hundred Dollars ($500.00) each * * *.
SECTION 9. This act shall take effect and be in force from and after July 1, 2007.