2018 Regular Session
To: Judiciary B
By: Representative Bain
AN ACT TO CREATE THE ACT OF "SEXTING" AS A DELINQUENT ACT WITHIN THE ORIGINAL JURISDICTION OF THE YOUTH COURT; TO CREATE CERTAIN EXCEPTIONS; TO CREATE DEFENSES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Use of a computer or electronic communication device by a minor to possess, produce, transmit, disseminate, distribute or display an indecent visual image of a minor. (1) For the purposes of this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly requires otherwise:
(a) "Computer" has the meaning given in Title 18, United States Code, Section 1030.
(b) "Disseminate" means to cause or make an electronic communication from one (1) person, place or electronic communication device to two (2) or more other persons, places or electronic communication devices.
(c) "Distribute" means to send, share, forward or deliver.
(d) "Electronic communication" means any transfer, including by computer, phone, or Internet of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, computer, electromagnetic, photoelectric or photo-optical system.
(e) "Electronic communication device" means an electronic device including, but not limited to, a wireless telephone, personal digital assistant, or a portable or mobile computer, that is capable of transmitting images or pictures.
(f) "Indecent visual image" means any image depicting the sexually explicit conduct of an actual child under the age of eighteen (18) years.
(g) "Minor" means any individual who has not attained the age of eighteen (18) years.
(h) "Produce" with respect to visual material includes any conduct that directly contributes to the creation or manufacture of the material.
(i) "Sexually explicit conduct" means actual or simulated:
(i) Oral genital contact, oral anal contact, or sexual intercourse as defined in Section 97-3-65, whether between persons of the same or opposite sex;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse;
(v) Lascivious exhibition of the female breast, genitals, pubic area or buttocks;
(vi) Fondling or other erotic touching of the genitals, pubic area, buttocks, anus or breast.
(j) "Simulated" means any depicting of the genitals or rectal areas that gives the appearance of sexual conduct or incipient sexual conduct.
(k) "Transmit" means to cause or make an electronic communication from one (1) person, place or electronic communication device to only one (1) other person, place or electronic communication device.
(l) "Visual image" means:
(i) Any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
(ii) Any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
(2) (a) No minor shall knowingly and voluntarily and without threat or coercion use a computer or electronic communication device to produce, transmit, disseminate, distribute or display an indecent visual image of the minor or another minor.
(b) No minor shall knowingly possess or receive an indecent visual image of another minor that has been produced, transmitted, disseminated, distributed or displayed through use of a computer or electronic communication device.
(3) A violation of this section is in the original jurisdiction of the youth court. Except as provided in subsection (6) of this section, acts prohibited by this section, if prosecuted in a court with criminal jurisdiction, would constitute a misdemeanor.
(4) It is an affirmative defense to a violation charged under subsection (2)(a) of this section if the indecent visual image that has been produced depicts only the minor in possession and was not intentionally transmitted, disseminated, distributed or displayed to another person.
(5) It is an affirmative defense to a violation charged under subsection (2)(b) of this section if the minor who was in possession of the indecent visual image of another minor:
(a) Did not knowingly purchase, procure, solicit or request the indecent visual image or take any other action to cause the indecent visual image to come into his or her possession; and
(b) Upon receiving the indecent visual image, did not distribute, display or otherwise share the image with anyone other than a legal guardian, a law enforcement officer, school official or other adult in a position of trust or authority; and
(i) Took reasonable steps to destroy each image; or
(ii) Reported the matter to a legal guardian, law enforcement officer or school official and gave the legal guardian, law enforcement officer or school official access to each image.
(6) Acts prohibited by this section constitute a felony, prosecutable in a court with criminal jurisdiction, and subject the minor in violation to adjudication or, where applicable, conviction under Section 97-5-33 or another applicable felony statute within the Mississippi Code if any one (1) of the following circumstances applies:
(a) The minor depicted in the indecent visual image is three (3) or more years younger than the minor who committed any act prohibited by this section.
(b) The minor who committed an act prohibited by this section obtained or otherwise caused the indecent visual image to be produced, transmitted, disseminated, distributed or displayed through the use of force, extortion, blackmail, coercion, threats, or intimidation.
(c) The minor has previously been adjudicated twice for a violation of this section or has been previously adjudicated delinquent under Section 97-5-33, Mississippi Code of 1972.
(7) A minor adjudicated delinquent under this section is not required to register as a sex offender.
SECTION 2. This act shall take effect and be in force from and after July 1, 2018.