House Bill 539

AN ACT TO CREATE THE TORT OF STALKING WHICH INCLUDES THE USE OF ELECTRONIC COMMUNICATION DEVICES; TO PROHIBIT MAKING THREATS WITH ELECTRONIC COMMUNICATION DEVICES; TO PROVIDE PENALTIES FOR VIOLATIONS; TO AMEND SECTION 97-3-107, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. It is the intent of this act to clarify that electronic communications are included in the actions that can constitute the crimes of harassment and stalking. It is not the intent of the Legislature by adoption of this act, to restrict in any way the types of conduct or actions that can constitute harassment or stalking.

SECTION 2. (1) A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort:

(a) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.

(b) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this paragraph, "immediate family" means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides or, within the six (6) months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff's household.

(i) The defendant, as a part of the pattern of conduct specified in paragraph (a) made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one (1) occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct.

(ii) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 97-3-107, prohibiting any act described in subsection (1).

(2) For the purposes of this section:

(a) "Pattern of conduct" means conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "pattern of conduct."

(b) "Credible threat" means a verbal or written threat, including that communicated by means of an electronic communication device or a threat implied by a pattern of conduct or a combination of verbal, written or electronically communicated statements and conduct, made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(c) "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in subsection 12 of Section 2510 of Title 18 of the United States Code.

(d) "Harass" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.

(3) A person who commits the tort of stalking upon another is liable to that person for damages, including, but not limited to, general damages, special damages and punitive damages.

(4) In an action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction.

(5) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(6) This section shall not be construed to impair any constitutionally protected activity, including, but not limited to, speech, protest and assembly.

SECTION 3. (1) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under circumstances in which it is made, is so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety shall be punished by imprisonment in the county jail not to exceed one (1) year or by imprisonment in the State Penitentiary.

(2) For the purposes of this section, "immediate family" means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree or any other person who regularly resides in the household or who, within the prior six (6) months, regularly resided in the household.

(3) "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines or pagers.

(4) "Electronic communication" has the same meaning as the term defined in subsection 12 of Section 2510 of Title 18 of the United States Code.

SECTION 4. Section 97-3-107, Mississippi Code of 1972, is amended as follows:

97-3-107. (1) Any person who willfully, maliciously and repeatedly follows or harasses another person, or who makes a credible threat, with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.

(2) Any person who violates subsection (1) of this section when there is a valid temporary restraining order, ex parte protective order, protective order after hearing, court approved consent agreement, or an injunction issued by a municipal, justice, county, circuit or chancery court, federal or tribal court or by a foreign court of competent jurisdiction in effect prohibiting the behavior described in subsection (1) of this section against the same party, shall be punishable by imprisonment in the county jail for not more than one (1) year and by a fine of not more than One Thousand Five Hundred Dollars ($1,500.00).

(3) A second or subsequent conviction occurring within seven (7) years of a prior conviction under subsection (1) of this section against the same victim, and involving an act of violence or "a credible threat" of violence as defined in subsection (5) of this section, shall be punishable by imprisonment for not more than three (3) years and by a fine of not more than Two Thousand Dollars ($2,000.00).

(4) For the purposes of this section, "harasses" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct."

(5) For the purposes of this section, "a credible threat" means a threat, including the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written or electronically communicated statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety.

(6) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines or pagers. "Electronic communication" has the same meaning as the term defined in subsection 12 of Section 2510 of Title 18 of the United States Code.

SECTION 5. This act shall take effect and be in force from and after July 1, 2002.