2012 Regular Session
To: Judiciary B
By: Representatives Gunn, Snowden, Arnold, Barton, Beckett, Bennett, Boyd, Brown (20th), Busby, Byrd, Carpenter, Chism, Crawford, Currie, DeBar, Denny, Eure, Evans (43rd), Frierson, Gipson, Guice, Hamilton, Haney, Hood, Ladner, Lott, Martinson, Massengill, Mayo, McLeod, Mettetal, Monsour, Moore, Morgan, Nelson, Rushing, Staples, Turner, Upshaw, Weathersby, White, Zuber, Formby, Aldridge, Mims, Baker, Shirley, Huddleston (15th), Howell, Bain, Bell, Steverson, Bounds
AN ACT TO PROVIDE FOR THE MANDATORY REPORTING OF SEXUAL CRIMES AGAINST MINORS; TO PROVIDE FOR THE RETAINING OF THE DNA OF A FETUS FOR THE PURPOSE OF DOCUMENTING THE PERPETRATOR OF A SEX CRIME AGAINST A MINOR; TO CREATE A CIVIL ACTION FOR CAUSING, AIDING OR ASSISTING A MINOR TO OBTAIN AN ABORTION; TO AMEND SECTION 43-21-353, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This section shall be known and may be cited as the "Mississippi Child Protection Act of 2012."
(2) Definitions. For the purposes of this section:
(a) "Sexual abuse" means the involvement of the child in any sexual act with a parent or another person, or the aiding or intentional toleration of a parent or caretaker of the child's sexual involvement with any other person or the child's involvement in child pornography, or any other involvement of a child in sexual activity constituting a crime under the laws of this state, including sexual penetration as defined in Section 97-3-95(1)(b), (c) and (d) or 97-3-97 when committed by an adult against a minor.
(b) "Caretaker" means any person legally obligated to provide or secure adequate care for the child including parent, guardian, tutor, legal custodian, foster home parent, or anyone else providing the child with a residence.
(c) "Child pornography" means visual depiction of a child engaged in actual or simulated sexual intercourse, deviate sexual intercourse, bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.
(d) "Mandatory reporter" means any of the following individuals performing their occupational duties: health care practitioner, member of the clergy, teaching or child care provider, police officer or law enforcement officials, or commercial film or photographic print processor.
(e) "Health practitioner" means any individual who provides healthcare services, including a physician, surgeon, physical therapist, psychiatrist, psychologist, medical resident, medical intern, hospital staff member, licensed nurse, nurse's aide, any emergency medical technician, paramedic, and any employee, staff member or volunteer at a reproductive healthcare facility.
(f) "Member of the clergy" means any priest, rabbi, or duly-ordained deacon or minister, except that the clergy member is not required to report a confidential communication that is protected as a function of the church, but shall then encourage that person to come forward and report the allegations to the proper authorities.
(g) "Teaching or child care provider" means anyone who provides training and supervision of a child, including any public or private teacher, teacher's aide, school principal, school staff member, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider, or any individual who provides such services to a child.
(h) "Commercial film or photographic print processor" means any person who develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides for compensation.
(i) "Reproductive healthcare facility" means any office, clinic, or other facility that provides abortions, abortion counseling, abortion referrals, contraceptives, contraceptive counseling, sex education, or gynecological care and services.
(j) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription or means is not an abortion if done with the intent to:
(i) Save the life or preserve the health of an unborn child;
(ii) Remove a dead unborn child caused by spontaneous abortion; or
(iii) Remove an ectopic pregnancy.
(3) Mandatory reporter requirements. A mandatory reporter shall report every instance of alleged or suspected sexual abuse. The mandatory reporter may not use the reporter's own discretion in deciding what cases should or should not be reported to the appropriate law enforcement or relevant state agency.
(4) Mandatory reporting procedure. If a mandatory reporter has cause to believe that a child has been subjected to sexual abuse, the mandatory reporter shall make a report no later than the forty-eighth hour after the abuse has been brought to the reporter's attention if the reporter suspects sexual abuse. A mandatory reporter may not delegate the responsibility to report sexual abuse to any other person but shall make the report personally. The mandatory reporter shall make a report to the local law enforcement agency, the Mississippi Department of Public Safety or the Mississippi Department of Human Services.
(5) Contents of the report. The person making the report shall identify the name and address of the child as well as the name and address of the person who is responsible for the care or custody of the child. The person making the report shall file any pertinent information he or she may have relating to the alleged or suspected sexual abuse.
(6) Failure to report. Any mandatory reporter who has reason to believe that a child's physical or mental health or welfare has been adversely affected due to sexual abuse and willfully does not report such sexual abuse as provided by this section, upon conviction thereof, shall be guilty of a misdemeanor punishable as provided in Section 43-21-353(7).
SECTION 2. (1) This section shall be known and may be cited as the "Child Rape Protection Act of 2012."
(2) As used in this section:
(a) "Abortion" has the meaning provided in Section 41-41-31.
(b) "Physician" means any person licensed to practice medicine and surgery.
(3) Any physician who performs an abortion on a minor who is less than fourteen (14) years of age at the time of the abortion procedure shall preserve fetal tissue extracted during the abortion in accordance with rules and regulations adopted by the Attorney General pursuant to this section. The physician shall submit the tissue to the Mississippi Department of Public Safety, Bureau of Investigation.
(4) The State Board of Health shall adopt rules and regulations prescribing:
(a) The amount and type of fetal tissue to be preserved and submitted by a physician pursuant to this section;
(b) Procedures for the proper preservation of such tissue for the purpose of DNA testing and examination;
(c) Procedures for documenting the chain of custody of such tissue for use as evidence;
(d) Procedures for proper disposal of fetal tissue preserved pursuant to this section;
(e) A uniform reporting instrument mandated to be utilized by physicians when submitting fetal tissue under this section which shall include the name of the physician submitting the fetal tissue and the complete residence address and name of the parent or legal guardian of the minor upon whom the abortion was performed; and
(f) Procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.
(5) Failure of a physician to comply with any provision of this section or any rule or regulation adopted thereunder:
(a) Shall constitute unprofessional conduct for the purposes of Section 73-25-29; and
(b) Is a misdemeanor upon a first conviction punishable as provided in Section 43-21-353(7), and a felony upon a second or subsequent conviction, punishable by a fine of Ten Thousand Dollars ($10,000.00) and imprisonment for up to five (5) years.
SECTION 3. (1) No person shall intentionally cause, aid, or assist a minor to obtain an abortion without the consent or consents required by Section 41-41-53.
(2) A person who violates subsection (1) of this section shall be civilly liable to the minor and to the person or persons required to give the consent or consents under Section 41-41-53. A court may award damages to the person or persons adversely affected by a violation of subsection (1) of this section, including compensation for emotional injury without the need for personal presence at the act or event, and the court may further award attorneys' fees, litigation costs, and punitive damages. Any adult who engages in or consents to another person engaging in a sex act with a minor in violation of the provisions of Section 97-3-65, and which results in the minor's pregnancy shall not be awarded damages under this section.
(3) It shall not be a defense to a claim brought under this section that the abortion was performed or induced pursuant to consent to the abortion given in a manner that is otherwise lawful in the state or place where the abortion was performed or induced.
(4) An unemancipated minor does not have capacity to consent to any action in violation of this section.
(5) A court may enjoin conduct that would be in violation of this section upon petition by the Attorney General, a prosecuting or district attorney, or any person adversely affected or who reasonably may be adversely affected by such conduct, upon a showing that such conduct:
(a) Is reasonably anticipated to occur in the future; or
(b) Has occurred in the past, whether with the same minor or others, and that it is not unreasonable to expect that such conduct will be repeated.
SECTION 4. Section 43-21-353, Mississippi Code of 1972, is amended as follows:
43-21-353. (1) Any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer, public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services, and immediately a referral shall be made by the Department of Human Services to the youth court intake unit, which unit shall promptly comply with Section 43-21-357. In the course of an investigation, at the initial time of contact with the individual(s) about whom a report has been made under this Youth Court Act or with the individual(s) responsible for the health or welfare of a child about whom a report has been made under this chapter, the Department of Human Services shall inform the individual of the specific complaints or allegations made against the individual. Consistent with subsection (4), the identity of the person who reported his or her suspicion shall not be disclosed. Where appropriate, the Department of Human Services shall additionally make a referral to the youth court prosecutor.
Upon receiving a report that a child has been sexually abused, or burned, tortured, mutilated or otherwise physically abused in such a manner as to cause serious bodily harm, or upon receiving any report of abuse that would be a felony under state or federal law, the Department of Human Services shall immediately notify the law enforcement agency in whose jurisdiction the abuse occurred and shall notify the appropriate prosecutor within forty-eight (48) hours, and the Department of Human Services shall have the duty to provide the law enforcement agency all the names and facts known at the time of the report; this duty shall be of a continuing nature. The law enforcement agency and the Department of Human Services shall investigate the reported abuse immediately and shall file a preliminary report with the appropriate prosecutor's office within twenty-four (24) hours and shall make additional reports as new or additional information or evidence becomes available. The Department of Human Services shall advise the clerk of the youth court and the youth court prosecutor of all cases of abuse reported to the department within seventy-two (72) hours and shall update such report as information becomes available.
(2) Any report to the Department of Human Services shall contain the names and addresses of the child and his parents or other persons responsible for his care, if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries and any other information that might be helpful in establishing the cause of the injury and the identity of the perpetrator.
(3) The Department of Human Services shall maintain a statewide incoming wide-area telephone service or similar service for the purpose of receiving reports of suspected cases of child abuse; provided that any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer or public or private school employee who is required to report under subsection (1) of this section shall report in the manner required in subsection (1).
(4) Reports of abuse and neglect made under this chapter and the identity of the reporter are confidential except when the court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor pursuant to subsection (1). Reports made under this section to any law enforcement agency or prosecutorial officer are for the purpose of criminal investigation and prosecution only and no information from these reports may be released to the public except as provided by Section 43-21-261. Disclosure of any information by the prosecutor shall be according to the Mississippi Uniform Rules of Circuit and County Court Procedure. The identity of the reporting party shall not be disclosed to anyone other than law enforcement officers or prosecutors without an order from the appropriate youth court. Any person disclosing any reports made under this section in a manner not expressly provided for in this section or Section 43-21-261, shall be guilty of a misdemeanor and subject to the penalties prescribed by Section 43-21-267.
(5) All final dispositions of law enforcement investigations described in subsection (1) of this section shall be determined only by the appropriate prosecutor or court. All final dispositions of investigations by the Department of Human Services as described in subsection (1) of this section shall be determined only by the youth court. Reports made under subsection (1) of this section by the Department of Human Services to the law enforcement agency and to the district attorney's office shall include the following, if known to the department:
(a) The name and address of the child;
(b) The names and addresses of the parents;
(c) The name and address of the suspected perpetrator;
(d) The names and addresses of all witnesses, including the reporting party if a material witness to the abuse;
(e) A brief statement of the facts indicating that the child has been abused and any other information from the agency files or known to the family protection worker or family protection specialist making the investigation, including medical records or other records, which may assist law enforcement or the district attorney in investigating and/or prosecuting the case; and
(f) What, if any, action is being taken by the Department of Human Services.
(6) In any investigation of a report made under this chapter of the abuse or neglect of a child as defined in Section 43-21-105(m), the Department of Human Services may request the appropriate law enforcement officer with jurisdiction to accompany the department in its investigation, and in such cases the law enforcement officer shall comply with such request.
(7) Anyone who willfully violates any provision of this section shall be, upon being found guilty, punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by imprisonment in jail not to exceed one (1) year, or both.
(8) If a report is made directly to the Department of Human Services that a child has been abused or neglected in an out-of-home setting, a referral shall be made immediately to the law enforcement agency in whose jurisdiction the abuse occurred and the department shall notify the district attorney's office within forty-eight (48) hours of such report. The Department of Human Services shall investigate the out-of-home setting report of abuse or neglect to determine whether the child who is the subject of the report, or other children in the same environment, comes within the jurisdiction of the youth court and shall report to the youth court the department's findings and recommendation as to whether the child who is the subject of the report or other children in the same environment require the protection of the youth court. The law enforcement agency shall investigate the reported abuse immediately and shall file a preliminary report with the district attorney's office within forty-eight (48) hours and shall make additional reports as new information or evidence becomes available. If the out-of-home setting is a licensed facility, an additional referral shall be made by the Department of Human Services to the licensing agency. The licensing agency shall investigate the report and shall provide the Department of Human Services, the law enforcement agency and the district attorney's office with their written findings from such investigation as well as that licensing agency's recommendations and actions taken.
(9) Any person with a duty to report under this section who also has a duty to report under Section 1 of House Bill No.______,
2012 Regular Session, shall comply with the provisions of both sections.
SECTION 5. Severability. Any provision of this act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable herefrom and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other dissimilar circumstances.
SECTION 6. This act shall take effect and be in force from and after July 1, 2012.