Senate Bill 2404

AN ACT TO AMEND SECTION 97-3-95, MISSISSIPPI CODE OF 1972, TO REVISE THE OFFENSE OF SEXUAL BATTERY TO INCLUDE CONSENSUAL SEX WITH A VULNERABLE ADULT BY HEALTH CARE EMPLOYEES WHO ARE NOT MARRIED TO THE VULNERABLE ADULT; TO AMEND SECTION 97-5-23, MISSISSIPPI CODE OF 1972, TO REVISE THE OFFENSE OF FONDLING 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 97-3-95, Mississippi Code of 1972, is amended as follows:

97-3-95. (1) A person is guilty of sexual battery if he or she engages in sexual penetration with:

(a) Another person without his or her consent;

(b) A mentally defective, mentally incapacitated or physically helpless person;

(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or

(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

(3) A person who engages in sexual penetration with a vulnerable adult, as defined by Section 43-47-5, is guilty of sexual battery if the person is not the vulnerable adult's spouse and is an employee of or contracted to work for a health care facility in which the vulnerable adult is a patient or resident.

(4) A person who engages in sexual penetration with a vulnerable adult, as defined by Section 43-47-5, is guilty of sexual battery if the person is not the vulnerable adult's spouse and 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 or conservator.

SECTION 2. Section 97-5-23, Mississippi Code of 1972, is amended as follows:

97-5-23. (1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, 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 Mississippi Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.

(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child 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 Mississippi Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

(3) Any person who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any vulnerable adult, as defined by Section 43-47-5, who is not the vulnerable adult's spouse, with or without the vulnerable adult's consent, when the person is an employee of or contracted to work for a health care facility in which the vulnerable adult is a patient or a 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.

(4) Any person who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any vulnerable adult, as defined by Section 43-47-5, who is not the vulnerable adult's spouse, 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 or conservator.

(5) Upon a second conviction for an offense under this section, the person so convicted shall be punished by commitment to the Mississippi Department of Corrections for a term not to exceed twenty (20) years, however, upon conviction and sentencing, the offender shall serve at least one-half (1/2) of the sentence so imposed.

SECTION 3. This act shall take effect and be in force from and after July 1, 2004.