MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary, Division B
By: Senator(s) Burton, Little, Browning, Butler, Carmichael, Chamberlin, Chaney, Clarke, Dawkins, Dearing, Flowers, Frazier, Harden, Harvey, Hewes, Hyde-Smith, Jackson (15th), Jackson (11th), Jackson (32nd), Jordan, King, Kirby, Lee (35th), Lee (47th), Mettetal, Morgan, Nunnelee, Pickering, Posey, Thames, Thomas, Tollison, Walley, White, Wilemon, Williamson
AN ACT TO AMEND SECTION 43-47-5, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS UNDER THE VULNERABLE ADULT ACT; TO CREATE NEW SECTION 43-47-18, MISSISSIPPI CODE OF 1972, TO CREATE THE OFFENSE OF SEXUAL BATTERY OF A VULNERABLE ADULT TO INCLUDE CONSENSUAL SEX WITH A VULNERABLE ADULT BY HEALTH CARE EMPLOYEES WHO ARE NOT MARRIED TO THE VULNERABLE ADULT AND TO CREATE THE OFFENSE OF FONDLING OF A VULNERABLE ADULT TO INCLUDE CONSENSUAL SEXUAL ACTIVITY WITH A VULNERABLE ADULT BY HEALTH CARE EMPLOYEES WHO ARE NOT MARRIED TO THE VULNERABLE ADULT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-47-5, Mississippi Code of 1972, is amended as follows:
43-47-5. For the purposes of this chapter, the following words shall have the meanings ascribed herein unless the context otherwise requires:
(a) "Abuse" means the willful or nonaccidental infliction of physical pain, injury or mental anguish on a vulnerable adult, the unreasonable confinement of a vulnerable adult, or the willful deprivation by a caretaker of services which are necessary to maintain the mental and physical health of a vulnerable adult. "Abuse" includes the sexual abuse delineated in Section 43-47-18. "Abuse" shall not mean conduct which is a part of the treatment and care of, and in furtherance of the health and safety of, a patient or resident of a care facility, nor a normal caregiving action or appropriate display of affection. "Abuse" includes, but is not limited to, a single incident.
(b) "Care facility" means:
(i) Any institution or place for the aged or infirm as defined in, and required to be licensed under, the provisions of Section 43-11-1 et seq.; and
(ii) Any long-term care facility as defined in Section 43-7-55; and
(iii) Any hospital as defined in, and required to be licensed under, the provisions of Section 41-9-1 et seq.; and
(iv) Any home health agency as defined in, and required to be licensed under, the provisions of Section 41-71-1 et seq.; and
(v) Any hospice as defined in, and required to be licensed under, the provisions of Chapter 85 of Title 41; and
(vi) Any adult day services facility, which means a community-based group program for adults designed to meet the needs of adults with impairments through individual plans of care, which are structured, comprehensive, planned, nonresidential programs providing a variety of health, social and related support services in a protective setting, enabling participants to live in the community. Exempted from this definition shall be any program licensed and certified by the Mississippi Department of Mental Health and any adult day services program provided to ten (10) or fewer individuals by a licensed institution for the aged or infirm.
(c) "Caretaker" means an individual, corporation, partnership or other organization which has assumed the responsibility for the care of a vulnerable adult, but shall not include the Division of Medicaid, a licensed hospital, or a licensed nursing home within the state.
(d) "Court" means the chancery court of the county in which the vulnerable adult resides or is located.
(e) "Department" means the Department of Human Services.
(f) "Emergency" means a situation in which:
(i) A vulnerable adult is in substantial danger of serious harm, death or irreparable harm if protective services are not provided immediately;
(ii) The vulnerable adult is unable to consent to services;
(iii) No responsible, able or willing caretaker, if any, is available to consent to emergency services; and
(iv) There is insufficient time to utilize the procedure provided in Section 43-47-13.
(g) "Emergency services" means those services necessary to maintain a vulnerable adult's vital functions and without which there is reasonable belief that the vulnerable adult would suffer irreparable harm or death, and may include taking physical custody of the adult.
(h) "Essential services" means those social work, medical, psychiatric or legal services necessary to safeguard a vulnerable adult's rights and resources and to maintain the physical or mental well-being of the person. These services shall include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, protection from health and safety hazards, protection from physical mistreatment and protection from exploitation. The words "essential services" shall not include taking a vulnerable adult into physical custody without his consent except as provided for in Section 43-47-15 and as otherwise provided by the general laws of the state.
(i) "Exploitation" means the illegal or improper use of a vulnerable adult or his resources for another's profit or advantage, with or without the consent of the vulnerable adult, and includes acts committed pursuant to a power of attorney. "Exploitation" includes, but is not limited to, a single incident.
(j) "Lacks the capacity to consent" means that a vulnerable adult, because of physical or mental incapacity, lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including, but not limited to, provisions for health care, food, clothing or shelter. This may be reasonably determined by the department in emergency situations; in all other instances, the court shall make the determination following the procedures in Sections 43-47-13 and 43-47-15 or as otherwise provided by the general laws of the state.
(k) "Neglect" means either the inability of a vulnerable adult who is living alone to provide for himself the food, clothing, shelter, health care or other services which are necessary to maintain his mental and physical health, or failure of a caretaker to supply the vulnerable adult with the food, clothing, shelter, health care, supervision or other services which a reasonably prudent person would do to maintain the vulnerable adult's mental and physical health. "Neglect" includes, but is not limited to, a single incident.
(l) "Protective services" means services provided by the state or other government or private organizations, agencies or individuals which are necessary to protect a vulnerable adult from abuse, neglect or exploitation. They shall include, but not be limited to, investigation, evaluation of the need for services and provision of essential services on behalf of a vulnerable adult.
(m) "Sexual penetration" shall have the meaning ascribed in Section 97-3-97.
(n) "Vulnerable adult" means a person eighteen (18) years of age or older or any minor whose ability to perform the normal activities of daily living or to provide for his or her own care or protection from abuse, neglect, exploitation or improper sexual contact is impaired due to a mental, emotional, physical or developmental disability or dysfunction, or brain damage or the infirmities of aging. The term "vulnerable adult" also includes all residents or patients, regardless of age, in a care facility for the purposes of Sections 43-47-19 and 43-47-37 only. The department shall not be prohibited from investigating, and shall have the authority and responsibility to fully investigate, in accordance with the provisions of this chapter, any allegation of abuse, neglect, or exploitation regarding a patient in a care facility, if the alleged abuse, neglect or exploitation occurred at a private residence.
SECTION 2. The following shall be codified as Section 43-47-18, Mississippi Code of 1972:
43-47-18. (1)(a) A person who engages in sexual penetration with a vulnerable adult is guilty of sexual battery if the person is a volunteer at, or an employee of, or contracted to work for, a health care facility in which the vulnerable adult is a patient or resident.
(b) A person who engages in sexual penetration with a vulnerable adult is guilty of sexual battery if the person is in a position of trust or authority over the vulnerable adult, including, without limitation, the vulnerable adult's teacher, counselor, physician, psychiatrist, psychologist, nurse, certified nursing assistant, direct care worker, technical assistant, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, other relative, caretaker, or conservator.
(c) Every person who is convicted of sexual battery under this subsection (1) shall be imprisoned in the custody of the State Department of Corrections for a period of not more than thirty (30) years, and for a second or subsequent such offense shall be imprisoned in the custody of the State Department of Corrections for a period of not more than forty (40) years
(2) (a) Any person who, for the purpose of gratifying the person's lust, or indulging the person's depraved licentious sexual desires, shall handle, touch or rub with hands or any part of the person's body or any member thereof, any vulnerable adult, with or without the vulnerable adult's consent, when the person is a volunteer at, or an employee of, or contracted to work for, a health care facility in which the vulnerable adult is a patient or resident, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the Department of Corrections not less than two (2) nor more than fifteen (15) years, or be punished by both fine and imprisonment, at the discretion of the court.
(b) Any person who, for the purpose of gratifying the person's lust, or indulging the person's depraved licentious sexual desires, shall handle, touch or rub with hands or any part of the person's body or any member thereof, any vulnerable adult, with or without the vulnerable adult's consent, when the person occupies a position of trust or authority over the vulnerable adult, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the Department of Corrections not less than two (2) nor more than fifteen (15) years, or be punished by both fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a vulnerable adult includes, without limitation, the vulnerable adult's teacher, counselor, physician, psychiatrist, psychologist, nurse, certified nursing assistant, direct care worker, technical assistant, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, other relative, caretaker, or conservator.
(3) A person is not guilty of any offense under this section if the alleged victim is that person's legal spouse; however, the legal spouse of the alleged victim may be found guilty of sexual battery if the legal spouse engaged in forcible sexual penetration without the consent of the alleged victim.
SECTION 3. This act shall take effect and be in force from and after July 1, 2004.