MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary B
By: Representatives Arnold, Scoggin, Sykes, Brown, Boyd
AN ACT TO PROVIDE THAT A COURT SHALL CONDUCT A PRELIMINARY HEARING WHEN A CHILD IS ALLEGED TO HAVE BEEN CONCEIVED AS A RESULT OF A RAPE OR SEXUAL BATTERY; TO REQUIRE THE HEARING UPON CONVICTION OF THE ALLEGED PARENT OF THE CHILD; TO REQUIRE A COURT TO DETERMINE WHETHER THERE IS A REASONABLE CHANCE THAT A CHILD COULD HAVE BEEN CONCEIVED FROM THE RAPE OR SEXUAL BATTERY; TO REQUIRE THE COURT TO SEND ALL INFORMATION RELATED TO THE CONVICTION AND THE PRELIMINARY HEARING TO THE CHANCERY COURT OF THE COUNTY IN WHICH THE CONVICTION OCCURRED; TO REQUIRE THE CHANCERY COURT TO DETERMINE BY GENETIC TESTING THAT A CHILD WAS CONCEIVED AS A RESULT OF THE RAPE OR SEXUAL BATTERY FOR WHICH THE PERSON WAS CONVICTED; TO PROVIDE THAT THE COURT SHALL TERMINATE THE PARENTAL RIGHTS OF THE CONVICTED PARENT IF THE CHILD IS PROVEN TO HAVE BEEN CONCEIVED AS A RESULT OF THE RAPE OR SEXUAL BATTERY; TO AMEND SECTIONS 97-3-65, 97-3-101, 93-15-105, 93-15-107, 93-15-113, 93-15-115, 93-15-117 AND 91-1-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY WITH THE PRECEDING PROVISIONS; TO BRING FORWARD SECTION 11-7-3, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Upon conviction of rape or sexual battery, if a child is alleged to have been conceived as a result of the rape or sexual battery, the court shall conduct a preliminary hearing to determine whether there is a reasonable chance that a child could have been conceived from the rape or sexual battery. If the court finds that there is a reasonable chance that a child could have been conceived from the rape or sexual battery, the court shall transfer all information related to the conviction and the preliminary hearing to the chancery court of the county in which the conviction occurred.
(2) Upon receipt of the information described in subsection (1) of this section, the chancery court shall determine by genetic testing that a child was conceived as a result of the rape or sexual battery for which the person was convicted. If the court makes such a determination, the court shall terminate the parental rights of the convicted person to each child conceived as a result of the rape or sexual battery.
(3) (a) In any action to terminate parental rights under this section, and after consultation with the victim, the court may order:
(i) Payment for reasonable expenses related to the pregnancy, labor, delivery, postpartum care, newborn care, or early childhood care of the child or mother, unless the mother is the person whose rights are terminated under this section; or
(ii) Child support.
(b) Each child conceived shall have all rights to inherit from the parent whose rights were terminated. Neither the parent who is convicted for rape or sexual battery under this section nor the kindred of such parent may inherit from or through the child through intestate succession or wrongful death.
(4) The provisions of this section shall not be construed to change or revise the provisions of Section 93-15-119 regarding termination of parental rights proceedings where there is no conviction.
SECTION 2. 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, but under twenty-one (21) years of age, and convicted under subsection (1)(a) of this section, to imprisonment for not more than five (5) years in the State Penitentiary or a fine of not more than Five Thousand Dollars ($5,000.00), or both;
(b) If twenty-one (21) years of age or older and convicted under subsection (1)(a) of this section, to imprisonment of not more than thirty (30) years in the State Penitentiary or a fine of not more than Ten Thousand Dollars ($10,000.00), or both, for the first offense, and not more than forty (40) years in the State Penitentiary for each subsequent offense;
(c) If eighteen (18) years of age or older and convicted under subsection (1)(b) of this section, to imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years;
(d) If thirteen (13) years of age or older but under eighteen (18) years of age and convicted under subsection (1)(a) or (1)(b) of this section, 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) (a) Upon conviction under this section, the court may issue a criminal sexual assault protection order prohibiting the offender from any contact with the victim, without regard to the relationship between the victim and offender. The court may include in a criminal sexual assault protection order any relief available under Section 93-21-15. The term of a criminal sexual assault protection order shall be for a time period determined by the court, but all orders shall, at a minimum, remain in effect for a period of two (2) years after the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole. Upon issuance of a criminal sexual assault protection order, the clerk of the issuing court shall enter the order in the Mississippi Protection Order Registry within twenty-four (24) hours of issuance, with no exceptions for weekends or holidays as provided in Section 93-21-25, and a copy must be provided to both the victim and offender.
(b) Criminal sexual assault protection orders shall be issued on the standardized form developed by the Office of the Attorney General.
(c) It is a misdemeanor to knowingly violate any condition of a criminal sexual assault protection order. Upon conviction for a violation, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Any sentence imposed for the violation of a criminal sexual assault protection order shall run consecutively to any other sentences imposed on the offender. The court shall also be empowered to extend the criminal sexual assault protection order for a period of one (1) year for each violation. The incarceration of a person at the time of the violation is not a bar to prosecution under this section. Nothing in this subsection shall be construed to prohibit the imposition of any other penalties or disciplinary action otherwise allowed by law or policy.
(7) Upon conviction under this section, if a child is alleged to have been conceived as a result of the rape for which the person was convicted, the court shall conduct a preliminary hearing to determine whether there is a reasonable chance that a child could have been conceived from the rape. If the court finds that there is a reasonable chance that a child could have been conceived from the rape, the court shall transfer all information related to the crime and the preliminary hearing to the chancery court of the county in which the conviction occurred.
( * * *8) 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 or the penetration of the sexual organs of a male or female human
being in which the penis or an object is inserted into the genitals, anus or
perineum of a male or female.
SECTION 3. 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), (b) or (2) 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) (a) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is at least eighteen (18) but under twenty-one (21) years of age shall be imprisoned for not more than five (5) years in the State Penitentiary or fined not more than Five Thousand Dollars ($5,000.00), or both;
(b) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is twenty-one (21) years of age or older shall be imprisoned not more than thirty (30) years in the State Penitentiary or fined not more than Ten Thousand Dollars ($10,000.00), or both, for the first offense, and not more than forty (40) years in the State Penitentiary for each subsequent offense.
(3) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.
(4) 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.
(5)
(a) Upon conviction * * * for sexual battery, the court may issue a
criminal sexual assault protection order prohibiting the offender from any
contact with the victim, without regard to the relationship between the victim
and offender. The court may include in a criminal sexual assault protection
order any relief available under Section 93-21-15. The term of a criminal
sexual assault protection order shall be for a time period determined by the
court, but all orders shall, at a minimum, remain in effect for a period of two
(2) years following the expiration of any sentence of imprisonment and
subsequent period of community supervision, conditional release, probation, or
parole. Upon issuance of a criminal sexual assault protection order, the clerk
of the issuing court shall enter the order in the Mississippi Protection Order
Registry within twenty-four (24) hours of issuance with no exceptions for
weekends or holidays as provided in Section 93-21-25, and a copy must be
provided to both the victim and offender.
(b) Criminal sexual assault protection orders shall be issued on the standardized form developed by the Office of the Attorney General.
(c) It is a misdemeanor to knowingly violate any condition of a criminal sexual assault protection order. Upon conviction for a violation, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Any sentence imposed for the violation of a criminal sexual assault protection order shall run consecutively to any other sentences imposed on the offender. The court may extend the criminal sexual assault protection order for a period of one (1) year for each violation. The incarceration of a person at the time of the violation is not a bar to prosecution under this section. Nothing in this subsection shall be construed to prohibit the imposition of any other penalties or disciplinary action otherwise allowed by law or policy.
(6) Upon conviction for sexual battery, if a child is alleged to have been conceived as a result of the sexual battery, the court shall conduct a preliminary hearing to determine whether there is a reasonable chance that a child could have been conceived from the sexual battery for which he or she was convicted. If the court finds that there is a reasonable chance that a child could have been conceived from the sexual battery, the court shall transfer all information related to the crime and the preliminary hearing to the chancery court of the county in which the conviction occurred.
SECTION 4. Section 93-15-105, Mississippi Code of 1972, is amended as follows:
93-15-105. (1) The chancery court has original exclusive jurisdiction over all termination of parental rights proceedings except that a county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, has original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child.
(2) (a) Venue in a county court sitting as a youth court for termination of parental rights proceedings shall be in the county in which the court has jurisdiction of the child in the abuse or neglect proceedings. Venue in chancery court for termination of parental rights proceedings shall be proper either in the county in which the defendant resides, the child resides or in the county where an agency or institution having custody of the child is located. However, venue in chancery court for termination of parental rights commenced by receipt of information regarding conviction of a parent as described in Section 1 of this act shall be proper in the county in which the parent was convicted of rape or sexual battery.
(b) Transfers of venue shall be governed by the Mississippi Rules of Civil Procedure.
SECTION 5. Section 93-15-107, Mississippi Code of 1972, is amended as follows:
93-15-107.
(1) (a) Involuntary termination of parental rights proceedings are commenced
upon the filing of a petition under this chapter or upon receipt of
information from a circuit court to a chancery court regarding termination of
parental rights of an alleged parent convicted of rape or sexual battery.
The petition may be filed by any interested person, or any agency, institution
or person holding custody of the child. The simultaneous filing of a petition
for adoption is not a prerequisite for filing a petition under this chapter. (b)
* * * Except as otherwise provided in this paragraph (b), the
proceeding shall be triable, either in term time or vacation, thirty (30) days
after personal service of process to any necessary party or, for a necessary
party whose address is unknown after diligent search, thirty (30) days after
the date of the first publication of service of process by publication that
complies with the Mississippi Rules of Civil Procedure. The
provisions of this paragraph shall not apply when the proceeding is commenced
due to receipt of information as described in Section 1 of this act regarding
the parent whose rights are being terminated.
(c) Except as otherwise provided in this paragraph, necessary parties to a termination of parental rights action shall include the mother of the child, the legal father of the child, the putative father of the child when known, and any agency, institution or person holding custody of the child. The absence of a necessary party who has been properly served does not preclude the court from conducting the hearing or rendering a final judgment. The provisions of this paragraph shall not apply when the proceeding is commenced due to receipt of information as described in Section 1 of this act regarding the parent whose rights are being terminated.
(d) A guardian ad litem shall be appointed to protect the best interest of the child, except that the court, in its discretion, may waive this requirement when a parent executes a written voluntary release to terminate parental rights. The guardian ad litem fees shall be determined and assessed in the discretion of the court.
(2) Voluntary termination of parental rights by written voluntary release is governed by Section 93-15-111.
(3) In all cases involving termination of parental rights, a minor parent shall be served with process as an adult.
(4) The court may waive service of process if an adoptive child was born in a foreign country, put up for adoption in the birth country, and has been legally admitted into this country.
SECTION 6. Section 93-15-113, Mississippi Code of 1972, is amended as follows:
93-15-113. (1) A hearing on the involuntary termination of parental rights shall be conducted without a jury and in accordance with the Mississippi Rules of Evidence. The court may exclude the child from the hearing if the court determines that the exclusion of the child from the hearing is in the child's best interest.
(2) (a) Except as otherwise provided in paragraph (c) of this subsection (2), at the beginning of the involuntary termination of parental rights hearing, the court shall determine whether all necessary parties are present and identify all persons participating in the hearing; determine whether the notice requirements have been complied with and, if not, determine whether the affected parties intelligently waived compliance with the notice requirements; explain to the parent the purpose of the hearing, the standard of proof required for terminating parental rights, and the consequences if the parent's parental rights are terminated. The court shall also explain to the parent:
(i) The right to counsel;
(ii) The right to remain silent;
(iii) The right to subpoena witnesses;
(iv) The right to confront and cross-examine witnesses; and
(v) The right to appeal, including the right to a transcript of the proceedings.
(b) The court shall then determine whether the parent before the court is represented by counsel. If the parent wishes to retain counsel, the court shall continue the hearing for a reasonable time to allow the parent to obtain and consult with counsel of the parent's own choosing. If an indigent parent does not have counsel, the court shall determine whether the parent is entitled to appointed counsel under the Constitution of the United States, the Mississippi Constitution of 1890, or statutory law and, if so, appoint counsel for the parent and then continue the hearing for a reasonable time to allow the parent to consult with the appointed counsel. The setting of fees for court-appointed counsel and the assessment of those fees are in the discretion of the court.
(c) The requirements of this subsection (2) shall not apply when the involuntary termination of parental rights proceeding is commenced due to a transfer from the circuit court as a result of the conviction of an alleged parent as described in Section 1 of this act.
SECTION 7. Section 93-15-115, Mississippi Code of 1972, is amended as follows:
93-15-115. When reasonable efforts for reunification are required for a child who is in the custody of, or under the supervision of, the Department of Child Protection Services pursuant to youth court proceedings, the court hearing a petition under this chapter may terminate the parental rights of a parent if, after conducting an evidentiary hearing, the court finds by clear and convincing evidence that:
(a) The child has been adjudicated abused or neglected;
(b) The child has been in the custody and care of, or under the supervision of, the Department of Child Protection Services for at least six (6) months, and, in that time period, the Department of Child Protection Services has developed a service plan for the reunification of the parent and the child;
(c) A permanency hearing, or a permanency review hearing, has been conducted pursuant to the Uniform Rules of Youth Court Practice and the court has found that the Department of Child Protection Services, or a licensed child caring agency under its supervision, has made reasonable efforts over a reasonable period to diligently assist the parent in complying with the service plan but the parent has failed to substantially comply with the terms and conditions of the plan and that reunification with the abusive or neglectful parent is not in the best interests of the child; and
(d) Termination of the parent's parental rights is appropriate because reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome based on one or more of the grounds set out in Section 93-15-119 or 93-15-121.
(e) That the child was conceived as a result of rape or sexual battery committed by the parent whose parental rights are being terminated as described in Section 1 of this act.
SECTION 8. Section 93-15-117, Mississippi Code of 1972, is amended as follows:
93-15-117. When reasonable efforts for reunification are not required, a court hearing a petition under this chapter may terminate the parental rights of a parent if, after conducting an evidentiary hearing, the court finds by clear and convincing evidence:
(a) That the child has been adjudicated abused or neglected;
(b) That the child has been in the custody and care of, or under the supervision of, the Department of Child Protection Services for at least sixty (60) days and the Department of Child Protection Services is not required to make reasonable efforts for the reunification of the parent and the child pursuant to Section 43-21-603(7)(c) of the Mississippi Youth Court Law;
(c) That a permanency hearing, or a permanency review hearing, has been conducted pursuant to the Uniform Rules of Youth Court Practice and the court has found that reunification with the abusive or neglectful parent is not in the best interests of the child; and
(d) That termination of the parent's parental rights is appropriate because reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome based on one or more of the following grounds:
(i) The basis for bypassing the reasonable efforts for reunification of the parent and child under Section 43-21-603(7)(c) is established by clear and convincing evidence; or
(ii) Any ground listed in Section 93-15-119 or 93-15-121 is established by clear and convincing evidence.
SECTION 9. Section 91-1-15, Mississippi Code of 1972, is brought forward as follows:
91-1-15. (1) The following terms shall have the meanings ascribed to them herein:
(a) "Remedy" means the right of an illegitimate to commence and maintain a judicial proceeding to enforce a claim to inherit property from the estate of the natural mother or father of such illegitimate, said claim having been heretofore prohibited by law, or prohibited by statutes requiring marriage between the natural parents, or restrained, or enjoined by the order or process of any court in this state.
(b) "Claim" means the right to assert a demand on behalf of an illegitimate to inherit property, either personal or real, from the estate of the natural mother or father of such illegitimate.
(c) "Illegitimate" means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.
(d) "Natural parents" means the biological mother or father of the illegitimate.
(2) An illegitimate shall inherit from and through the illegitimate's mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father's estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate's estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.
(3) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate's death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
(i) Such court was in the state of residence of the intestate at the time of the intestate's death;
(ii) The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;
(iii) All known heirs were made parties to the action; and
(iv) Paternity or legitimacy was established by clear and convincing evidence.
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.
(ii) Any part of the natural mother's estate from or through the illegitimate if the illegitimate dies unmarried and without issue, and also predeceases the natural mother. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate's estate inherited from the mother shall be inherited according to the statutes of descent and distribution.
A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity; provided, however, the failure of an illegitimate to seek or obtain relief under the Mississippi Uniform Law on Paternity shall not diminish or abate the remedy created herein.
(4) The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.
(5) Nothing in this section shall preclude the establishment of paternity solely for the purpose of the illegitimate receiving social security benefits on behalf of the illegitimate's natural father after one (1) year following the natural father's death.
SECTION 10. Section 11-7-3, Mississippi Code of 1972, is brought forward as follows:
11-7-3. The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the case, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit. An "assignee" for purposes of this section includes both absolute assignees, with or without recourse, and conditional or limited assignees including assignees for collection purposes.
SECTION 11. This act shall take effect and be in force from and after July 1, 2018.