2012 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
AN ACT TO PROVIDE FOR THE MANDATORY REPORTING OF SEXUAL CRIMES AGAINST MINORS; TO CREATE A CIVIL ACTION FOR FAILURE TO MAKE A MANDATORY REPORT OF ABUSE; 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; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Short title. 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 health care 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 health care 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 health care 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.
(k) "Physician" means any person licensed to practice medicine and surgery.
(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). A person who violates this subsection (6) shall be civilly liable to the minor and the minor's parent or guardian. A court may award damages to the person or persons adversely affected by a mandatory reporter's failure to report, including compensation for emotional injury, without the need for personal presence at the act or event, and the court may further award attorney's fees, litigation costs and punitive damages. Any adult who engages or consents to another person engaging in a sex act with a minor in violation of the provisions of Section 97-3-65 or 97-3-95 shall not be awarded damages under this subsection. The limitations imposed by Sections 11-1-60 and 11-1-65 do not apply to an action under this subsection.
(7) Maintenance of forensic samples from abortions performed on certain minors. 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 State Board of Health pursuant to this section. The physician shall submit the tissue to the Mississippi Department of Public Safety, Bureau of Investigation.
(a) The State Board of Health shall adopt rules and regulations prescribing:
(i) The amount and type of fetal tissue to be preserved and submitted by a physician pursuant to this section;
(ii) Procedures for the proper preservation of such tissue for the purpose of DNA testing and examination;
(iii) Procedures for documenting the chain of custody of such tissue for use as evidence;
(iv) Procedures for proper disposal of fetal tissue preserved pursuant to this section;
(v) 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
(vi) Procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.
(b) Failure of a physician to comply with any provision of this subsection or any rule or regulation adopted thereunder:
(i) Shall constitute unprofessional conduct for the purposes of Section 73-25-29; and
(ii) 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.
(8) Prohibition on procurement of an abortion without parental consent. (a) No person shall intentionally cause, aid, or assist a minor under the age of eighteen (18) to obtain an abortion without the consent or consents required by Section 41-41-53.
(b) A person who violates this subsection (8) 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 this subsection (8), 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 or 97-3-95, and which results in the minor's pregnancy shall not be awarded damages under this section. The limitations imposed by Sections 11-1-60 and 11-1-65 do not apply to an action under this subsection.
(c) It shall not be a defense to a claim brought under this subsection 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.
(d) An unemancipated minor does not have capacity to consent to any action in violation of this section.
(e) 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:
(i) Is reasonably anticipated to occur in the future; or
(ii) 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 2. This act shall take effect and be in force from and after July 1, 2012.