2013 Regular Session
To: Judiciary B
By: Representatives White, Crawford
AN ACT TO BE KNOWN AS THE LONNIE SMITH ACT; TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO REVISE THE ELEMENTS OF THE OFFENSE OF FELONIOUS CHILD ABUSE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-5-39, Mississippi Code of 1972, is amended as follows:
97-5-39. (1) (a) Except
as otherwise provided in this section, any parent, guardian or other person who * * *
or recklessly commits any act or omits the performance of any duty, which
act or omission contributes to or tends to contribute to the neglect or
delinquency of any child or which act or omission results in the abuse of any
child, as defined in Section 43-21-105(m) of the Youth Court Law, or who
knowingly aids any child in escaping or absenting himself from the guardianship
or custody of any person, agency or institution, or knowingly harbors or
conceals, or aids in harboring or concealing, any child who has absented
himself without permission from the guardianship or custody of any person,
agency or institution to which the child shall have been committed by the youth
court shall be guilty of a misdemeanor, and upon conviction shall be punished
by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment
not to exceed one (1) year in jail, or by both such fine and imprisonment.
(b) For the purpose of this section, a child is a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married, is not considered a child for the purposes of this statute.
(c) If a child commits one of the prescribed acts in Sections 2(a), (2)(b), or (2)(c) upon another child, then original jurisdiction of all such offenses shall be in youth court.
( * * *
d) If the child's deprivation of
necessary * * *
clothing, shelter, health care or supervision appropriate to the child's age
results in substantial harm to the child's physical, mental or emotional
health, the person may be sentenced to imprisonment for not more than five (5)
years or to payment of a fine of not more than Five Thousand Dollars
($5,000.00), or both.
( * * *
e) A parent, legal guardian or other
person who knowingly permits the continuing physical or sexual abuse of a child
is guilty of neglect of a child and may be sentenced to imprisonment for not
more than ten (10) years or to payment of a fine of not more than Ten Thousand
Dollars ($10,000.00), or both.
(2) * * *
Any person * * * shall * * *intentionally
be guilty of felonious child abuse in the following circumstances:
(a) * * * Whether bodily harm results or not, if the person shall intentionally, knowingly or recklessly:
(i) Burn any child * * *
(ii) Torture any
child * * *
(iii) * * * Strangle, choke, smother or in anyway interfere with any child's breathing;
(iv) Poison a child;
(v) Starve a child of nourishments needed to sustain life or growth;
(vi) Use any type of deadly weapon upon any child;
(b) If some bodily harm to any child actually occurs, and if the person shall intentionally, knowingly, or recklessly:
(i) Throw, kick, bite, or cut any child;
(ii) Strike a child under the age of fourteen about the face or head with a closed fist;
(iii) Strike a child under the age of five (5) in the face or head;
(iv) Use any type of deadly weapon upon any child;
(v) Kick, bite, cut or strike a child's genitals;
(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Strike any child on the face or head;
(ii) Disfigure or scar any child;
(iii) Whip, strike, or otherwise abuse any child;
(d) Any person, upon conviction under subsection (2)(a) or (c), shall be sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of not less than five (5) years and up to life, as determined by the court. Any person, upon conviction, for subsection (2)(b) shall be sentenced by the court to imprisonment in the Custody of the Department of Corrections for a term of not less than two (2) years nor more than ten (10) years, as determined by the court. For any second or subsequent conviction under this subsection, the person shall be sentenced to imprisonment for life.
(e) For the purposes of this subsection (2), "bodily harm" shall be any bodily injury to a child and includes, but is not limited to, bruising, bleeding, lacerations, soft tissue swelling, and external or internal swelling of any body organ. (f) For the purposes of this subsection (2), "serious bodily harm" shall be any serious bodily injury to a child and includes, but is not limited to, the fracture of a bone, disfigurement, scarring, or any internal bleeding or any internal trauma to any organ , any brain damage, any injury to the eye or ear of a child or any other vital organ, and impairment of any bodily function.
(g) Nothing contained in paragraph (2)(c) of this subsection shall preclude a parent or guardian from disciplining a child of that parent or guardian in a reasonable manner, and reasonable corporal punishment or reasonable discipline as to that parent or guardian's child shall be a defense to any violation charged under subsection (2)(c).
(h) Reasonable discipline and reasonable corporal punishment shall not be a defense to acts described in subsection (2)(a) and (2)(b) or if a child suffers serious bodily harm as a result of any act prohibited under subsection (2)(c).
* * *
(3) * * * Any person who intentionally, knowingly or recklessly inflicts physical pain or injury upon a special needs education child or a child with a documented mental or physical disability shall be guilty of felonious abuse or battery, or both, of a special needs education child or a child with a documented mental or physical disability and, upon conviction thereof, may be punished by imprisonment in the State Penitentiary for not more than twenty (20) years.
( * * *
4) ( * * * a) A parent, legal guardian or
caretaker who endangers a child's person or health by knowingly causing or
permitting the child to be present where any person is selling, manufacturing
or possessing immediate precursors or chemical substances with intent to
manufacture, sell or possess a controlled substance as prohibited under Section
41-29-139 or 41-29-313, is guilty of child endangerment and may be sentenced to
imprisonment for not more than ten (10) years or to payment of a fine of not
more than Ten Thousand Dollars ($10,000.00), or both.
( * * *
b) If the endangerment results in
substantial harm to the child's physical, mental or emotional health, the
person may be sentenced to imprisonment for not more than twenty (20) years or
to payment of a fine of not more than Twenty Thousand Dollars ($20,000.00), or
( * * *
5) Nothing contained in this section
shall prevent proceedings against the parent, guardian or other person under
any statute of this state or any municipal ordinance defining any act as a
crime or misdemeanor. Nothing in the provisions of this section shall preclude
any person from having a right to trial by jury when charged with having
violated the provisions of this section.
( * * *
6) After consultation with the
Department of Human Services, a regional mental health center or an appropriate
professional person, a judge may suspend imposition or execution of a sentence
provided in subsections (1) and (2) of this section and in lieu thereof require
treatment over a specified period of time at any approved public or private
treatment facility. A person may be eligible for treatment in lieu of criminal
penalties no more than one (1) time.
( * * *
7) In any proceeding resulting from a
report made pursuant to Section 43-21-353 of the Youth Court Law, the testimony
of the physician making the report regarding the child's injuries or condition
or cause thereof shall not be excluded on the ground that the physician's
testimony violates the physician-patient privilege or similar privilege or rule
against disclosure. The physician's report shall not be considered as evidence
unless introduced as an exhibit to his testimony.
( * * *
8) Any criminal prosecution arising
from a violation of this section shall be tried in the circuit, county, justice
or municipal court having jurisdiction; provided, however, that nothing herein
shall abridge or dilute the contempt powers of the youth court.
SECTION 2. This act shall take effect and be in force from and after July 1, 2013.