MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary B
By: Representative Blackmon
AN ACT TO AMEND SECTIONS 97-3-65 AND 97-5-23, MISSISSIPPI CODE OF 1972, TO REVISE THE AGE FOR STATUTORY RAPE AND GRATIFICATION OF LUST; TO BRING FORWARD SECTIONS 45-33-21, 45-33-23, 45-33-25, 45-33-26, 45-33-27, 45-33-29, 45-33-31, 45-33-32, 45-33-33, 45-33-34, 45-33-35, 45-33-36, 45-33-37, 45-33-39, 45-33-41, 45-33-43, 45-33-47, 45-33-49, 45-33-51, 45-33-53, 45-33-55, 45-33-57, 45-33-59, 97-3-54.1, 97-3-68, 97-3-69, 97-3-71, 97-3-95, 97-3-97, 97-3-99, 97-3-101, 97-3-103, 97-3-104, 97-5-5, 97-5-24, 97-5-27, 97-5-29, 97-5-31, 97-5-33, 97-5-35, 97-5-37, 97-5-41, 97-5-42, 97-29-1, 97-29-3, 97-29-5, 97-29-7, 97-29-9, 97-29-49, 97-29-51, 97-29-53, 97-29-55, 97-29-59, 97-29-61, 97-29-63, 97-29-101, 97-29-103, 97-29-105, 97-29-107 AND 97-29-109, MISSISSIPI CODE OF 1972, WHICH DEAL WITH SEXUAL OFFENSES FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 twenty (20) 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 forty-eight (48) 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 twenty (20) 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 (20) 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 twenty (20) 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 twenty (20) 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) 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 2. Section 97-5-23, Mississippi Code of 1972, is amended as follows:
97-5-23. (1) Any person above the age of twenty (20) 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 State 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 twenty (20) 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 State 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) Upon a second conviction for an offense under this section, the person so convicted shall be punished by commitment to the State 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. Section 45-33-21, Mississippi Code of 1972, is brought forward as follows:
45-33-21. The Legislature finds that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to government. The Legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend criminal sex offenders are impaired by the lack of information shared with the public, which lack of information may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute criminal sex offenders.
The Legislature further finds that the system of registering criminal sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Comprehensive registration and periodic address verification will provide law enforcement with additional information critical to preventing sexual victimization and to resolving promptly incidents involving sexual abuse and exploitation. It will allow law enforcement agencies to alert the public when necessary for the continued protection of the community.
Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing offenders' due process and other rights, and the interests of public security, the Legislature finds that releasing such information about criminal sex offenders to the general public will further the primary governmental interest of protecting vulnerable populations and, in some instances, the public from potential harm.
Therefore, the state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by requiring criminal sex offenders to register, to record their addresses of residence, to be photographed and fingerprinted, and to authorize the release of necessary and relevant information about criminal sex offenders to the public as provided in this chapter, which may be referred to as the Mississippi Sex Offenders Registration Law.
SECTION 4. Section 45-33-23, Mississippi Code of 1972, is brought forward as follows:
45-33-23. For the purposes of this chapter, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Conviction" shall mean that, regarding the person's offense, there has been a determination or judgment of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere regardless of whether adjudication is withheld. "Conviction of similar offenses" includes, but is not limited to, a conviction by a federal or military tribunal, including a court martial conducted by the Armed Forces of the United States, a conviction for an offense committed on an Indian Reservation or other federal property, a conviction in any state of the United States and a conviction in a foreign country if the foreign country's judicial system is such that it satisfies minimum due process set forth in the guidelines under Section 111(5)(B) Public Law 109-28.
(b) "Jurisdiction" shall mean any state court, federal court, military court, Indian tribunal or foreign court.
(c) "Permanent residence" is defined as a place where the person abides, lodges, or resides for a period of fourteen (14) or more consecutive days.
(d) "Registration" means providing information to the appropriate agency within the time frame specified as required by this chapter.
(e) "Registration duties" means obtaining the registration information required on the form specified by the department as well as the photograph, fingerprints and biological sample of the registrant. Biological samples are to be forwarded to the State Crime Laboratory pursuant to Section 45-33-37; the photograph, fingerprints and other registration information are to be forwarded to the Department of Public Safety immediately.
(f) "Responsible agency" is defined as the person or government entity whose duty it is to obtain information from a criminal sex offender upon conviction and to transmit that information to the Mississippi Department of Public Safety.
(i) For a criminal sex offender being released from the custody of the Department of Corrections, the responsible agency is the Department of Corrections.
(ii) For a criminal sex offender being released from a county jail, the responsible agency is the sheriff of that county.
(iii) For a criminal sex offender being released from a municipal jail, the responsible agency is the police department of that municipality.
(iv) For a sex offender in the custody of youth court, the responsible agency is the youth court.
(v) For a criminal sex offender who is being placed on probation, including conditional discharge or unconditional discharge, without any sentence of incarceration, the responsible agency is the sentencing court.
(vi) For an offender who has been committed to a mental institution following an acquittal by reason of insanity, the responsible agency is the facility from which the offender is released. Specifically, the director of said facility shall notify the Department of Public Safety prior to the offender's release.
(vii) For a criminal sex offender who is being released from a jurisdiction outside this state or who has a prior conviction in another state and who is to reside in this state, the responsible agency is the Department of Public Safety.
(g) "Sex offense" means any of the following offenses:
(i) Section 97-3-53 relating to kidnapping, if the victim was below the age of eighteen (18);
(ii) Section 97-3-65 relating to rape; however, conviction or adjudication under Section 97-3-65(1)(a) on or after July 1, 1998, when the offender was eighteen (18) years of age or younger at the time of the alleged offense, shall not be a registrable sex offense;
(iii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iv) Section 97-3-95 relating to sexual battery; however, conviction or adjudication under Section 97-3-95(1)(c) on or after July 1, 1998, when the offender was eighteen (18) years of age or younger at the time of the alleged offense, shall not be a registrable sex offense;
(v) Section 97-5-5 relating to enticing a child for concealment, prostitution or marriage;
(vi) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(vii) Section 97-5-27 relating to the dissemination of sexually oriented material to children;
(viii) Section 97-5-33 relating to the exploitation of children;
(ix) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(x) Section 97-29-59 relating to unnatural intercourse;
(xi) Section 97-1-7 relating to attempt to commit any of the above-referenced offenses;
(xii) Section 97-29-3 relating to adultery or fornication between teacher and pupil;
(xiii) Section 43-47-18 relating to sexual abuse of a vulnerable adult;
(xiv) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(xv) Section 97-29-63 relating to filming another without permission where there is an expectation of privacy;
(xvi) Any other offense resulting in a conviction in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere;
(xvii) Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had;
(xviii) Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this section;
(xix) Capital murder when one (1) of the above described offenses is the underlying crime.
(h) "Temporary residence" is defined as a place where the person abides, lodges, or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent address; for a person whose permanent residence is not in this state, the place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in the state; or a place where a person routinely abides, lodges or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and which is not the person's permanent residence.
(i) "Department" unless otherwise specified is defined as the Mississippi Department of Public Safety.
SECTION 5. Section 45-33-25, Mississippi Code of 1972, is brought forward as follows:
45-33-25. (1) (a) Any person having a permanent or temporary residence in this state who has been convicted of any sex offense or attempted sex offense or who has been acquitted by reason of insanity for any sex offense or attempted sex offense shall register with the Mississippi Department of Public Safety. Registration shall not be required for an offense that is not a registrable sex offense or for an offender who is under fourteen (14) years of age. The department shall provide the initial registration information as well as every change of address to the sheriff of the county of the residence address of the registrant through either written notice, electronic or telephone transmissions, or online access to registration information. Further, the department shall provide this information to the Federal Bureau of Investigation. Additionally, upon notification by the registrant that he intends to reside outside the State of Mississippi, the department shall notify the appropriate state law enforcement agency of any state to which a registrant is moving or has moved.
(b) Any person having a permanent or temporary residence in this state who has been adjudicated delinquent for a registrable sex offense listed in this paragraph that involved use of force against the victim shall register as a sex offender with the Mississippi Department of Public Safety:
(i) Section 97-3-71 relating to rape and assault with intent to ravish;
(ii) Section 97-3-95 relating to sexual battery;
(iii) Section 97-3-65 relating to statutory rape; or
(iv) Conspiracy to commit, accessory to the commission of, or attempt to commit any offense listed in this paragraph.
(2) Any person required to register under this chapter shall submit the following information at the time of registration:
(a) Name, including a former name which has been legally changed;
(b) Street address of all current permanent and temporary residences within state or out of state;
(c) Date, place and address of employment;
(d) Crime for which convicted;
(e) Date and place of conviction, adjudication or acquittal by reason of insanity;
(f) Aliases used;
(g) Social security number;
(h) Date and place of birth;
(i) Age, race, sex, height, weight, hair and eye colors, and any other physical description or identifying factors;
(j) A brief description of the offense or offenses for which the registration is required;
(k) Driver's license or state identification card number, which license or card may be electronically accessed by the Department of Public Safety;
(l) Anticipated future residence;
(m) If the registrant's residence is a motor vehicle, trailer, mobile home or manufactured home, the registrant shall also provide vehicle identification number, license tag number, registration number and a description, including color scheme, of the motor vehicle, trailer, mobile home or manufactured home; if the registrant's place of residence is a vessel or houseboat, the registrant shall also provide the hull identification number, manufacturer's serial number, name of the vessel or houseboat, registration number and a description, including color scheme, of the vessel or houseboat;
(n) Vehicle make, model, color and license tag number;
(o) Offense history;
(p) Photograph;
(q) Fingerprints and palm prints;
(r) Documentation of any treatment received for any mental abnormality or personality disorder of the person;
(s) Biological sample;
(t) Name of any public or private educational institution, including any secondary school, trade or professional institution or institution of higher education at which the offender is employed, carries on a vocation (with or without compensation) or is enrolled as a student, and the registrant's status;
(u) Copy of conviction or sentencing order for the sex offense for which registration is required;
(v) The offender's parole, probation or supervised release status and the existence of any outstanding arrest warrants;
(w) Every online identity, screen name or username used, registered or created by a registrant; and
(x) Any other information deemed necessary.
(3) For purposes of this chapter, a person is considered to be residing in this state if he maintains a permanent or temporary residence as defined in Section 45-33-23, including students, temporary employees and military personnel on assignment.
(4) (a) A person required to register under this chapter shall not reside within one thousand five hundred (1,500) feet of the real property comprising a public or nonpublic elementary or secondary school, a child care facility, a residential child-caring agency, a children's group care home or any playground, ball park or other recreational facility utilized by persons under the age of eighteen (18) years.
(b) A person residing within one thousand five hundred (1,500) feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility does not commit a violation of this subsection if any of the following apply:
(i) The person is serving a sentence at a jail, prison, juvenile facility or other correctional institution or facility.
(ii) The person is subject to an order of commitment under Title 41, Mississippi Code of 1972.
(iii) The person established the subject residence prior to July 1, 2006, or the school or child care facility is located within one thousand five hundred (1,500) feet of the person's residence subsequent to the date the person established residency.
(iv) The person is a minor or a ward under a guardianship.
(c) A person residing within one thousand five hundred (1,500) feet of the real property comprising a residential child-caring agency, a children's group care home or any playground, ball park or other recreational facility utilized by persons under the age of eighteen (18) years does not commit a violation of this subsection if any of the following apply:
(i) The person established the subject residence prior to July 1, 2008, or the residential child-caring agency, a children's group care home, playground, ball park or other recreational facility utilized by persons under the age of eighteen (18) years is established within one thousand five hundred (1,500) feet of the person's residence subsequent to the date the person established residency.
(ii) Any of the conditions described in subsection (4)(b)(i), (ii) or (iv) exist.
(5) The Department of Public Safety is required to obtain the text of the law defining the offense or offenses for which the registration is required.
SECTION 6. Section 45-33-26, Mississippi Code of 1972, is brought forward as follows:
45-33-26. (1) Unless exempted under subsection (2), it is unlawful for a person required to register as a sex offender under Section 45-33-25:
(a) To be present in any school building, on real property comprising any school, or in any conveyance owned, leased or contracted by a school to transport students to or from school or a school-related activity when persons under the age of eighteen (18) are present in the building, on the grounds or in the conveyance; or
(b) To loiter within five hundred (500) feet of a school building or real property comprising any school while persons under the age of eighteen (18) are present in the building or on the grounds.
(2) (a) A person required to register as a sex offender who is a parent or guardian of a student attending the school and who complies with subsection (3) may be present on school property if the parent or guardian is:
(i) Attending a conference at the school with school personnel to discuss the progress of the sex offender's child academically or socially;
(ii) Participating in child review conferences in which evaluation and placement decisions may be made with respect to the sex offender's child regarding special education services; (iii) Attending conferences to discuss other student issues concerning the sex offender's child such as retention and promotion;
(iv) Transporting the sex offender's child to and from school; or
(v) Present at the school because the presence of the sex offender has been requested by the principal for any other reason relating to the welfare of the child.
(b) Subsection (1) of this section shall not apply to a sex offender who is legally enrolled in a particular school or is participating in a school-sponsored educational program located at a particular school when the sex offender is present at that school.
(3) (a) In order to exercise the exemption under subsection (2), a parent or guardian who is required to register as a sex offender must notify the principal of the school of the sex offender's presence at the school unless the offender: (i) has permission to be present from the superintendent or the school board, or (ii) the principal has granted ongoing permission for regular visits of a routine nature.
(b) If permission is granted by the superintendent or the school board, the superintendent or school board president must inform the principal of the school where the sex offender will be present. Notification includes the nature of the sex offender's visit and the hours when the sex offender will be present in the school, and the sex offender is responsible for notifying the principal's office upon arrival and upon departure. If the sex offender is to be present in the vicinity of children, the sex offender has the duty to remain under the direct supervision of a school official.
(4) For the purposes of this section, the following terms shall have the meanings ascribed unless the context clearly requires otherwise:
(a) "School" means a public or private preschool, elementary school or secondary school.
(b) "Loiter" means standing or sitting idly, whether in or out of a vehicle, or remaining in or around school property without a legitimate reason.
(c) "School official" means the principal, a teacher, any other certified employee of the school, the superintendent of schools, or a member of the school board.
(5) A sex offender who violates this section is guilty of a misdemeanor and subject to a fine not to exceed One Thousand Dollars ($1,000.00), incarceration not to exceed six (6) months in jail, or both.
(6) It is a defense to prosecution under this section that the sex offender did not know and could not reasonably know that the property or conveyance fell within the proscription of this section.
(7) Nothing in this section shall be construed to infringe upon the constitutional right of a sex offender to be present in a school building that is used as a polling place for the purpose of voting.
SECTION 7. Section 45-33-27, Mississippi Code of 1972, is brought forward as follows:
45-33-27. (1) A person required to register on the basis of a conviction, adjudication of delinquency or acquittal by reason of insanity entered shall register with the responsible agency within three (3) business days of the date of judgment unless the person is immediately confined or committed, in which case the person shall register before release in accordance with the procedures established by the department. The responsible agency shall immediately forward the registration information to the Department of Public Safety. The person is also required to personally appear at a Department of Public Safety Driver's License Station within ten (10) days of registration with the responsible agency and to obtain a sex offender registration card.
(2) If a person who is required to register under this section is released from prison or placed on parole or supervised release or in a restitution center or community work center, the Department of Corrections shall perform the registration duties before placement in a center or before release and immediately forward the registration information to the Department of Public Safety. The person is also required to personally appear at a Department of Public Safety Driver's License Station within ten (10) days of release or placement in a restitution center or community work center.
(3) If a person required to register under this section is placed on probation, the court, at the time of entering the order, shall register the person and immediately forward the registration information to the Department of Public Safety. The person is also required to personally appear at a Department of Public Safety Driver's License Station within ten (10) days of the entry of the order.
(4) Any person required to register who is neither incarcerated, detained nor committed at the time the requirement to register attaches shall present himself to the county sheriff to register within three (3) business days, and shall personally appear at a Department of Public Safety Driver's License Station within ten (10) days of the time the requirement to register attaches.
(5) An offender moving to or returning to this state from another jurisdiction shall notify the Department of Public Safety ten (10) days before the person first resides in or returns to this state and shall present himself to the sheriff of the county of his residence within three (3) business days after first residing in or returning to a county of this state to provide the required registration information. The person is also required to register by personally appearing at a Department of Public Safety Driver's License Station within ten (10) days after first residing in or moving to a county of this state.
(6) A person, other than a person confined in a correctional or juvenile detention facility or involuntarily committed on the basis of mental illness, who is required to register on the basis of a sex offense for which a conviction, adjudication of delinquency or acquittal by reason of insanity was entered prior to July 1, 1995, shall register with the sheriff of the county in which he resides no later than August 15, 2000.
(7) Every person required to register shall show proof of domicile. The commissioner shall promulgate any rules and regulations necessary to enforce this requirement and shall prescribe the means by which such person may show domicile.
(8) Any driver's license photograph, I.D. photograph, sex offender photograph, finger print, driver's license application and/or anything submitted to the Department of Public Safety by a known convicted sex offender, registered or not registered, can be used by the Department of Public Safety or any other authorized law enforcement agency for any means necessary in registration, identification, investigation regarding their tracking or identification.
SECTION 8. Section 45-33-29, Mississippi Code of 1972, is brought forward as follows:
45-33-29. (1) Upon any change of address, an offender required to register under this chapter is required to personally appear at a Department of Public Safety Driver's License Station not less than ten (10) days before he intends to first reside at the new address.
(2) Upon any change in the status of a registrant's enrollment, employment or vocation at any public or private educational institution, including any secondary school, trade or professional institution or institution of higher education, the offender is required to personally appear at a Department of Public Safety Driver's License Station within three (3) business days of the change.
(3) Upon any change of employment or change of name, a registrant is required to personally appear at a Department of Public Safety Driver's License Station within three (3) business days of the change.
SECTION 9. Section 45-33-31, Mississippi Code of 1972, is brought forward as follows:
45-33-31. All registrants are required to personally appear at a Department of Public Safety Driver's License Station to reregister every ninety (90) days. Reregistration includes the submission of current information and photograph to the department and the verification of registration information, including the street address and telephone number of the registrant; name, street address and telephone number of the registrant's employment along with any other registration information that may need to be verified and the payment of any required fees. A person who fails to reregister and obtain a renewal sex offender registration card as required by this section commits a violation of this chapter.
SECTION 10. Section 45-33-32, Mississippi Code of 1972, is brought forward as follows:
45-33-32. (1) A person convicted of a sex offense who volunteers for an organization in which volunteers have direct, private and unsupervised contact with minors shall notify the organization of the person's conviction at the time of volunteering. Such notification must be in writing to the organization. Any organization which accepts volunteers must notify volunteers of this disclosure requirement upon application of the volunteer to serve or prior to acceptance of any of the volunteer's service, whichever occurs first.
(2) If the organization, after notification by the offender as provided in subsection (1), accepts the offender as a volunteer, the organization must notify the parents or guardians of any minors involved in the organization of the offender's criminal record.
(3) This act [Laws, 2004, Chapter 493] applies to all registered sex offenders regardless of the date of conviction.
(4) Any person previously registered as a sex offender and who has a continuing obligation to be registered as a sex offender shall be notified of the person's duty under this section with the first reregistration form to be sent to the person after July 1, 2004.
(5) If the registered sex offender is currently volunteering for such an organization, the sex offender must resign or notify the organization immediately upon receipt of notice or be subject to the penalties of this chapter.
SECTION 11. Section 45-33-33, Mississippi Code of 1972, is brought forward as follows:
45-33-33. (1) (a) The failure of an offender to personally appear at a Department of Public Safety Driver's License Station or to provide any registration or other information, including, but not limited to, initial registration, reregistration or change of address information, change of employment, change of name or required notification to a volunteer organization, as required by this chapter, is a violation of the law. Additionally, forgery of information or submission of information under false pretenses is also a violation of the law.
(b) A person commits a violation of this chapter who:
(i) Knowingly harbors, or knowingly attempts to harbor, or knowingly assists another person in harboring or attempting to harbor a sex offender who is in violation of this chapter; or
(ii) Knowingly assists a sex offender in eluding a law enforcement agency that is seeking to find the sex offender to question the sex offender about, or to arrest the sex offender for, noncompliance with the requirements of this chapter; or
(iii) Provides information to a law enforcement agency regarding a sex offender which the person knows to be false.
(2) Unless otherwise specified, a violation of this chapter shall be considered a felony and shall be punishable by a fine not more than Five Thousand Dollars ($5,000.00) or imprisonment in the State Penitentiary for not more than five (5) years, or both fine and imprisonment.
(3) Whenever it appears that an offender has failed to comply with the duty to register or reregister, the department shall promptly notify the sheriff of the county of the last known address of the offender. Upon notification, the sheriff shall attempt to locate the offender at his last known address.
(a) If the sheriff locates the offender, he shall enforce the provisions of this chapter. The sheriff shall then notify the department with the current information regarding the offender.
(b) If the sheriff is unable to locate the offender, the sheriff shall promptly notify the department and initiate a criminal prosecution against the offender for the failure to register or reregister. The sheriff shall make the appropriate transactions into the Federal Bureau of Investigation's wanted-person database.
(4) A first violation of this chapter may result in the arrest of the offender. Upon any second or subsequent violation of this chapter, the offender shall be arrested for the violation.
(5) Any prosecution for a violation of this section shall be brought by a prosecutor in the county of the violation.
(6) A person required to register under this chapter who commits any act or omission in violation of this chapter may be prosecuted for the act or omission in the county in which the act or omission was committed, the county of the last registered address of the sex offender, the county in which the conviction occurred for the offense or offenses that meet the criteria requiring the person to register, or in the county in which he was designated a sex offender.
(7) The Commissioner of Public Safety or his authorized agent shall suspend the driver's license or driving privilege of any offender failing to comply with the duty to report, register or reregister.
SECTION 12. Section 45-33-34, Mississippi Code of 1972, is brought forward as follows:
45-33-34. (1) The Department of Corrections and all law enforcement agencies shall notify the department when a registered sex offender is arrested or incarcerated for another offense or as the result of having violated probation, parole, conditional discharge or other sentence or court order.
(2) The offender, offender's guardian, offender's conservator or the administrator of the institution shall notify the department when a registered sex offender is committed to a mental institution for a reason other than the initial confinement following an acquittal by reason of insanity for a sex offense.
SECTION 13. Section 45-33-35, Mississippi Code of 1972, is brought forward as follows:
45-33-35. (1) The Mississippi Department of Public Safety shall maintain a central registry of sex offender information as defined in Section 45-33-25 and shall adopt rules and regulations necessary to carry out this section. The responsible agencies shall provide the information required in Section 45-33-25 on a form developed by the department to ensure accurate information is maintained.
(2) Upon conviction, adjudication or acquittal by reason of insanity of any sex offender, if the sex offender is not immediately confined or not sentenced to a term of imprisonment, the clerk of the court which convicted and sentenced the sex offender shall inform the person of the duty to register, including the duty to personally appear at a Department of Public Safety Driver's License Station, and shall perform the registration duties as described in Section 45-33-23 and forward the information to the department.
(3) Before release from prison or placement on parole, supervised release or in a work center or restitution center, the Department of Corrections shall inform the person of the duty to register, including the duty to personally appear at a Department of Public Safety Driver's License Station, and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.
(4) Before release from confinement in a mental institution following an acquittal by reason of insanity, the director of the facility shall inform the offender of the duty to register, including the duty to personally appear at a Department of Public Safety Driver's License Station, and shall notify the Department of Public Safety of the offender's release.
(5) Before release from a youthful offender facility, the director of the facility shall inform the person of the duty to register, including the duty to personally appear at a Department of Public Safety Driver's License Station, and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.
(6) In addition to performing the registration duties, the responsible agency shall:
(a) Inform the person having a duty to register that:
(i) The person is required to personally appear at a Department of Public Safety Driver's License Station at least ten (10) days before changing address.
(ii) Any change of address to another state shall be reported to the department by personally appearing at a Department of Public Safety Driver's License Station not less than ten (10) days before the change of address. The offender shall comply with any registration requirement in the new state.
(iii) The person must register in any state where the person is employed, carries on a vocation, is stationed in the military or is a student.
(iv) Address verifications shall be made by personally appearing at a Department of Public Safety Driver's License Station within the required time period.
(v) Notification or verification of a change in status of a registrant's enrollment, employment or vocation at any public or private educational institution, including any secondary school, trade or professional institution, or institution of higher education shall be reported to the department by personally appearing at a Department of Public Safety Driver's License Station within three (3) business days of the change.
(vi) If the person has been convicted of a sex offense, the person shall notify any organization for which the person volunteers in which volunteers have direct, private or unsupervised contact with minors that the person has been convicted of a sex offense as provided in Section 45-33-32(1).
(vii) Upon any change of name or employment, a registrant is required to personally appear at a Department of Public Safety Driver's License Station within three (3) business days of the change.
(b) Require the person to read and sign a form stating that the duty of the person to register under this chapter has been explained.
(c) Obtain or facilitate the obtaining of a biological sample from every registrant as required by this chapter if such biological sample has not already been provided to the Mississippi Crime Lab.
(d) Provide a copy of the order of conviction or sentencing order to the department at the time of registration.
SECTION 14. Section 45-33-36, Mississippi Code of 1972, is brought forward as follows:
45-33-36. (1) Upon receipt of sex offender registration or change of registration information, the Department of Public Safety shall immediately provide the information to:
(a) The National Sex Offender Registry or other appropriate databases;
(b) The sheriff of the county where the offender resides, is an employee or is a student;
(c) The sheriff of the county from which or to which a change of residence, employment or student status occurs; and
(d) The Department of Human Services.
(2) The Department of Public Safety shall also provide the information within five (5) business days to volunteer organizations in which contact with minors or vulnerable adults might occur and any organization, company or individual who requests such notification pursuant to procedures established by the Department of Public Safety. This provision shall take effect upon the state's receipt and implementation of the Department of Justice software in compliance with the provisions of the Adam Walsh Act.
SECTION 15. Section 45-33-37, Mississippi Code of 1972, is brought forward as follows:
45-33-37. (1) The Mississippi Crime Laboratory shall develop a plan for and establish a deoxyribonucleic acid (DNA) identification system. In implementing the plan, the Mississippi Crime Laboratory shall purchase the appropriate equipment. The DNA identification system as established herein shall be compatible with that utilized by the Federal Bureau of Investigation.
(2) From and after January 1, 1996, every individual convicted of a sex offense or in the custody of the Mississippi Department of Corrections for a sex offense as defined in Section 45-33-23 shall submit a biological sample for purposes of DNA identification analysis before release from or transfer to a state correctional facility or county jail or other detention facility.
(3) From and after January 1, 1996, any person having a duty to register under Section 45-33-25 for whom a DNA analysis is not already on file shall submit a biological sample for purposes of DNA identification analysis within five (5) working days after registration.
(4) The Mississippi Crime Laboratory shall be responsible for the policy management and administration of the state DNA identification record system to support law enforcement and other criminal justice agencies and shall:
(a) Promulgate rules and regulations to implement the provisions of this section; and
(b) Provide for cooperation with the Federal Bureau of Investigation and other criminal justice agencies relating to the state's participation in the Combined DNA Index System (CODIS) program and the national DNA identification index or in any DNA database designated by the crime laboratory.
(5) A DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this section. Any entry into the database which is found to be erroneous shall not prohibit law enforcement officials from the legitimate use of information in the furtherance of a criminal investigation.
SECTION 16. Section 45-33-39, Mississippi Code of 1972, is brought forward as follows:
45-33-39. (1) The court shall provide written notification to any defendant charged with a sex offense as defined by this chapter of the registration requirements of Sections 45-33-25 and 45-33-31. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant. The court shall obtain a written acknowledgment of receipt on each occasion.
(2) A court imposing a sentence, disposition or order of commitment following acquittal by reason of insanity shall notify the offender of the registration requirements of Sections 45-33-25 and 45-33-31. The court shall obtain a written acknowledgment of receipt on each occasion.
SECTION 17. Section 45-33-41, Mississippi Code of 1972, is brought forward as follows:
45-33-41. (1) The Department of Corrections or any person having charge of a county or municipal jail or any juvenile detention facility shall provide written notification to an inmate or offender in the custody of the jail or other facility due to a conviction of or adjudication for a sex offense of the registration and notification requirements of Sections 45-33-25, 45-33-31, 45-33-32 and 45-33-59 at the time of the inmate's or offender's confinement and release from confinement, and shall receive a signed acknowledgment of receipt on both occasions.
(2) At least ten (10) days prior to the inmate's release from confinement, the Department of Corrections shall notify the victim of the offense or a designee of the immediate family of the victim regarding the date when the offender's release shall occur, provided a current address of the victim or designated family member has been furnished in writing to the Director of Records for such purpose.
SECTION 18. Section 45-33-43, Mississippi Code of 1972, is brought forward as follows:
45-33-43. At the time a person surrenders a driver's license from another jurisdiction or makes an application for a driver's license, temporary driving permit, intermediate license, commercial driver's license or identification card issued under Section 45-35-3, the department shall provide the applicant with written information on the registration requirements of this chapter and shall require written acknowledgment by the applicant of receipt of the notification.
SECTION 19. Section 45-33-47, Mississippi Code of 1972, is brought forward as follows:
45-33-47. (1) A sex offender with a duty to register under Section 45-33-25 shall only be relieved of the duty under subsection (2) of this section.
(2) A person having a duty to register under Section 45-33-25 may petition the circuit court of the sentencing jurisdiction, or for a person whose duty to register arose in another jurisdiction, the county in which the registrant resides, to be relieved of that duty under the following conditions:
(a) The offender has maintained his registration in Mississippi for not less than twenty-five (25) years from the most recent date of occurrence of at least one (1) of the following: release from prison, placement on parole, supervised release or probation. Incarceration for any offense will restart the twenty-five-year minimum registration requirement. Registration in any other jurisdiction does not reduce the twenty-five-year time requirement for maintaining registration in Mississippi.
(b) If the offender has been convicted of one (1) of the following offenses, the offender is subject to lifetime registration and shall not be relieved of the duty to register:
(i) Section 97-3-65 relating to rape;
(ii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iii) Section 97-3-95 relating to sexual battery;
(iv) Subsection (1) or (2) of Section 97-5-33 relating to the exploitation of children;
(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(vi) Section 97-3-53 relating to kidnapping if the victim is under the age of eighteen (18);
(vii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(viii) Section 43-47-18 relating to sexual abuse of a vulnerable adult; or
(ix) Any conviction for violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction.
(c) Notwithstanding another provision of this section, an offender may petition the appropriate circuit court to be relieved of the duty to register upon fifteen (15) years satisfaction of the requirements of this section for a conviction of misdemeanor dissemination of sexually oriented material to children, Section 97-5-27(1).
(d) An offender who has two (2) separate convictions for any of the offenses described in Section 45-33-23 is subject to lifetime registration and shall not be eligible to petition to be relieved of the duty to register as long as at least one (1) of the convictions was entered on or after July 1, 1995.
(e) An offender, twenty-one (21) years of age or older, who is convicted of any sex offense where the victim was fourteen (14) years of age or younger shall be subject to lifetime registration and shall not be relieved of the duty to register.
(f) A first-time offender fourteen (14) years of age or older adjudicated delinquent in a youth court for the crime of rape pursuant to Section 96-3-65 or sexual battery pursuant to Section 97-3-95 is subject to lifetime registration and shall be eligible to petition to be relieved of the duty to register after twenty-five (25) years of registration.
(g) Registration following arrest or arraignment for failure to register is not a defense and does not relieve the sex offender of criminal liability for failure to register.
(h) The department shall continue to list in the registry the name and registration information of all registrants who no longer work, reside or attend school in this state even after the registrant moves to another jurisdiction and registers in the new jurisdiction as required by law. The registry shall note that the registrant moved out of state.
(3) In determining whether to release an offender from the obligation to register, the court shall consider the nature of the registrable offense committed and the criminal and relevant noncriminal behavior of the petitioner both before and after conviction. The court may relieve the offender of the duty to register only if the petitioner shows, by clear and convincing evidence, that the registrant properly maintained his registration as required by law and that future registration of the petitioner will not serve the purposes of this chapter and the court is otherwise satisfied that the petitioner is not a current or potential threat to public safety. The district attorney in the circuit in which the petition is filed must be given notice of the petition at least three (3) weeks before the hearing on the matter. The district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied. If the court denies the petition, the petitioner may not again petition the court for relief until one (1) year has elapsed unless the court orders otherwise in its order of denial of relief.
(4) The offender will be required to continue registration for any sex offense conviction unless the conviction is set aside in any post-conviction proceeding, the offender receives a pardon, the charge is dismissed or the offender has received a court order pursuant to this section relieving him of the duty to register. Upon submission of the appropriate documentation to the department of one (1) of these occurrences, registration duties will be discontinued.
(5) The Department of Public Safety shall maintain an Internet site in a manner that will permit the public to obtain relevant information for each sex offender in the registry. The Web site shall permit the public to obtain relevant information for each offender by a single query for any given zip code or geographic radius set by the user, such as a municipality or county. The Department of Public Safety shall participate in the Dru Sjodin National Sex Offender Public Web site.
SECTION 20. Section 45-33-49, Mississippi Code of 1972, is brought forward as follows:
45-33-49. (1) Records maintained pursuant to this chapter shall be open to law enforcement agencies which shall be authorized to release relevant and necessary information regarding sex offenders to the public.
(2) The identity of a victim of an offense that requires registration under this chapter shall not be released.
(3) A sheriff shall maintain records for registrants of the county and shall make available to any person upon request the name, address, place of employment, crime for which convicted, date and place of conviction of any registrant, and any other information deemed necessary for the protection of the public. The sheriffs shall be responsible for verifying their respective registries annually against the department's records to ensure current information is available at both levels.
(4) Upon written request, the department may also provide to any person the name, address, photograph, if available, date of photograph, place of employment, crime for which convicted, date and place of conviction of any registrant, hair, eye color, height, race, sex and date of birth of any registrant, and any other information deemed necessary for the protection of the public. Additionally, the department may utilize an Internet website or other electronic means to release the information.
(5) The Department of Education, the Mississippi Private School Association and the Department of Health shall notify all schools and licensed day care centers annually regarding the availability upon request of this information.
(6) Nothing in this section shall be construed to prevent law enforcement officers from notifying members of the public exposed to danger of any circumstances or individuals that pose a danger under circumstances that are not enumerated in this section.
(7) Nothing in this chapter shall be construed to prevent law enforcement officers from providing community notification of any circumstances or individuals that pose or could pose a danger under circumstances that are not enumerated in this chapter.
SECTION 21. Section 45-33-51, Mississippi Code of 1972, is brought forward as follows:
45-33-51. (1) Any person who willfully misuses or alters public record information relating to a sex offender or sexual predator, or a person residing or working at an address reported by a sex offender, including information displayed by law enforcement agencies on web sites, shall be guilty of a misdemeanor and shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment in the county jail not more than six (6) months, or both.
(2) The sale or exchange of sex offender information for profit is prohibited. Any violation of this subsection (2) is a misdemeanor and shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment in the county jail not more than six (6) months, or both.
SECTION 22. Section 45-33-53, Mississippi Code of 1972, is brought forward as follows:
45-33-53. (1) An elected public official, public employee or public agency is immune from civil liability for damages for any discretionary decision to release relevant and necessary information unless it is shown that the official, employee or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees or officials or to the general public.
(2) Nothing in this chapter shall be deemed to impose any liability upon or to give rise to a cause of action against any public official, public employee or public agency for failing to release information as authorized in this section.
(3) Notwithstanding any other provision of law to the contrary, any person who provides or fails to provide information relevant to the procedures set forth in this chapter shall not be liable therefor in any civil or criminal action. Nothing herein shall be deemed to grant any such immunity to any person for his willful or wanton act of commission or omission.
SECTION 23. Section 45-33-55, Mississippi Code of 1972, is brought forward as follows:
45-33-55. Except for juvenile criminal history information that has been sealed by order of the court, this chapter exempts sex offenses from laws of this state or court orders authorizing the destroying, expunging, purging or sealing of criminal history records to the extent such information is authorized for dissemination under this chapter.
SECTION 24. Section 45-33-57, Mississippi Code of 1972, is brought forward as follows:
45-33-57. (1) The Department of Public Safety may adopt regulations to establish fees to be charged for information requests.
(2) The Department of Public Safety may adopt regulations to establish fees to be charged to registrants for registration, reregistration, and verification or change of address.
SECTION 25. Section 45-33-59, Mississippi Code of 1972, is brought forward as follows:
45-33-59. (1) Any person convicted of a sex offense who is employed in any position, or who contracts with a person to provide personal services, where the employment position or personal services contract will bring the person into close regular contact with children shall notify in writing the employer or the person with whom the person has contracted of his sex offender status.
(2) This section applies to all registered sex offenders regardless of the date of conviction.
SECTION 26. Section 97-3-54.1, Mississippi Code of 1972, is brought forward as follows:
97-3-54.1. (1) (a) A person who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services, shall be guilty of the crime of human-trafficking.
(b) A person who knowingly subjects, or attempts to subject, another person to forced labor or services shall be guilty of the crime of procuring involuntary servitude.
(c) A person who knowingly subjects, or attempts to subject, or who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, a minor, knowing that the minor will engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and shall be punished by commitment to the custody of the Department of Corrections for not more than thirty (30) years.
(2) A person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section, or who benefits, whether financially or by receiving anything of value, from participation in a venture that has engaged in an act described in this section, shall be committed to the custody of the Department of Corrections for not more than twenty (20) years.
SECTION 27. Section 97-3-68, Mississippi Code of 1972, is brought forward as follows:
97-3-68. (1) In any prosecution for rape under Section 97-3-65, 97-3-67 or 97-3-71, if evidence of sexual conduct of the complaining witness is offered to attack the credibility of said complaining witness, the following procedure shall be followed:
(a) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall order a closed hearing in chambers, out of the presence of the jury, if any, and at such closed hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
(d) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant and otherwise admissible, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
(2) As used in this section and Section 97-3-70, "complaining witness" means the alleged victim of the crime charged, the prosecution of which is subject to this section.
SECTION 28. Section 97-3-69, Mississippi Code of 1972, is brought forward as follows:
97-3-69. In the trial of all cases under the last preceding section, it shall be presumed that the female was previously of chaste character, and the burden shall be upon the defendant to show that she was not; but no person shall be convicted upon the uncorroborated testimony of the injured female.
SECTION 29. Section 97-3-71, Mississippi Code of 1972, is brought forward as follows:
97-3-71. Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished by imprisonment in the Penitentiary for life, or for such shorter time as may be fixed by the jury, or by the court upon the entry of a plea of guilty.
SECTION 30. Section 97-3-95, Mississippi Code of 1972, is brought forward 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.
SECTION 31. Section 97-3-97, Mississippi Code of 1972, is brought forward as follows:
97-3-97. For purposes of Sections 97-3-95 through 97-3-103 the following words shall have the meaning ascribed herein unless the context otherwise requires:
(a) "Sexual penetration" includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body.
(b) A "mentally defective person" is one who suffers from a mental disease, defect or condition which renders that person temporarily or permanently incapable of knowing the nature and quality of his or her conduct.
(c) A "mentally incapacitated person" is one rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent.
(d) A "physically helpless person" is one who is unconscious or one who for any other reason is physically incapable of communicating an unwillingness to engage in an act.
SECTION 32. Section 97-3-99, Mississippi Code of 1972, is brought forward as follows:
97-3-99. A person is not guilty of any offense under Sections 97-3-95 through 97-3-103 if the alleged victim is that person's legal spouse and at the time of the alleged offense such person and the alleged victim are not separated and living apart; provided, however, that 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 33. Section 97-3-101, Mississippi Code of 1972, is brought forward 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.
SECTION 34. Section 97-3-103, Mississippi Code of 1972, is brought forward as follows:
97-3-103. Sections 97-3-95 through 97-3-103 shall not be held to repeal, modify or amend any other criminal statute of this state.
SECTION 35. Section 97-3-104, Mississippi Code of 1972, is brought forward as follows:
97-3-104. It is unlawful for any jailer, guard, employee of the Department of Corrections, sheriff, constable, marshal or other officer to engage in any sexual penetration, as defined in Section 97-3-97, or have carnal knowledge of any offender, with the offender's consent, who is incarcerated at any jail or any state, county or private correctional facility or who is serving on probation, parole, earned-release supervision, post-release supervision, earned probation or any other form of correctional supervision. Any person who violates this section is guilty of a felony and upon conviction shall be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned for a term not to exceed five (5) years, or both.
SECTION 36. Section 97-5-5, Mississippi Code of 1972, is brought forward as follows:
97-5-5. Every person who shall maliciously, willfully, or fraudulently lead, take, carry away, decoy or entice away, any child under the age of fourteen (14) years, with intent to detain or conceal such child from its parents, guardian, or other person having lawful charge of such child, or for the purpose of prostitution, concubinage, or marriage, shall, on conviction, be imprisoned in the Penitentiary not exceeding ten (10) years, or imprisoned in the county jail not more than one (1) year, or fined not more than One Thousand Dollars ($1,000.00), or both.
SECTION 37. Section 97-5-24, Mississippi Code of 1972, is brought forward as follows:
97-5-24. If any person eighteen (18) years or older who is employed by any public or private school district in this state is accused of fondling or having any type of sexual involvement with any child under the age of eighteen (18) years who is enrolled in such school, the principal of such school and the superintendent of such school district shall timely notify the district attorney with jurisdiction where the school is located of such accusation, provided that such accusation is reported to the principal and to the school superintendent and that there is a reasonable basis to believe that such accusation is true.
SECTION 38. Section 97-5-27, Mississippi Code of 1972, is brought forward as follows:
97-5-27. (1) Any person who intentionally and knowingly disseminates sexually oriented material to any person under eighteen (18) years of age shall be guilty of a misdemeanor and upon conviction shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment. A person disseminates sexually oriented material within the meaning of this section if he:
(a) Sells, delivers or provides, or offers or agrees to sell, deliver or provide, any sexually oriented writing, picture, record or other representation or embodiment that is sexually oriented; or
(b) Presents or directs a sexually oriented play, dance or other performance or participates directly in that portion thereof which makes it sexually oriented; or
(c) Exhibits, presents, rents, sells, delivers or provides, or offers or agrees to exhibit, present, rent or to provide any sexually oriented still or motion picture, film, filmstrip or projection slide, or sound recording, sound tape or sound track or any matter or material of whatever form which is a representation, embodiment, performance or publication that is sexually oriented.
(2) For purposes of this section, any material is sexually oriented if the material contains representations or descriptions, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) (a) A person is guilty of computer luring when:
(i) Knowing the character and content of any communication of sexually oriented material, he intentionally uses any computer communication system allowing the input, output, examination or transfer of computer data or computer programs from one (1) computer to another, to initiate or engage in such communication with a person under the age of eighteen (18); and
(ii) By means of such communication he importunes, invites or induces a person under the age of eighteen (18) years to engage in sexual intercourse, deviant sexual intercourse or sexual contact with him, or to engage in a sexual performance, obscene sexual performance or sexual conduct for his benefit.
(b) A person who engages in the conduct proscribed by this subsection (3) is presumed to do so with knowledge of the character and content of the material.
(c) In any prosecution for computer luring, it shall be a defense that:
(i) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor; or
(ii) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to the materials prohibited, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(iii) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or
(iv) The defendant has in good faith established a mechanism such that the labeling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or to circumvent any such screening or blocking.
(d) In any prosecution for computer luring:
(i) No person shall be held to have violated this subsection (3) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
(ii) No employer shall be held liable for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency or the employer, having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly disregards such conduct.
(iii) The limitations provided by this paragraph (d) shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate such provisions, or who knowingly advertises the availability of such communications, nor to a person who provides access or connection to a facility, system or network engaged in the violation of such provisions that is owned or controlled by such person.
(e) Computer luring is a felony, and any person convicted thereof shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed three (3) years and by a fine not to exceed Ten Thousand Dollars ($10,000.00).
SECTION 39. Section 97-5-29, Mississippi Code of 1972, is brought forward as follows:
97-5-29. (1) Any person who intentionally and knowingly places sexually oriented materials upon public display, or who knowingly and intentionally fails to take prompt action to remove such a display from property in his possession after learning of its existence shall be guilty of a misdemeanor and upon conviction shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment.
(2) For purposes of this section any material is sexually oriented if the material consists of representations or descriptions of actual or simulated masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) A person places sexually oriented material upon public display within the meaning of this section if he places the material on or in a billboard, viewing screen, theater stage or marquee, newsstand, display rack, window, showcase, display case or other similar place, including a viewing screen in a vehicle, so that sexually oriented material is easily visible from a public street, public road or sidewalk or from areas of public businesses in which minors are normally business invitees.
SECTION 40. Section 97-5-31, Mississippi Code of 1972, is brought forward as follows:
97-5-31. As used in Sections 97-5-33 through 97-5-37, the following words and phrases shall have the meanings given to them in this section:
(a) "Child" means any individual who has not attained the age of eighteen (18) years.
(b) "Sexually explicit conduct" means actual or simulated:
(i) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse;
(v) Lascivious exhibition of the genitals or pubic area of any person; or
(vi) Fondling or other erotic touching of the genitals, pubic area, buttocks, anus or breast.
(c) "Producing" means producing, directing, manufacturing, issuing, publishing or advertising.
(d) "Visual depiction" includes without limitation developed or undeveloped film and video tape or other visual unaltered reproductions by computer.
(e) "Computer" has the meaning given in Title 18, United States Code, Section 1030.
(f) "Simulated" means any depicting of the genitals or rectal areas that gives the appearance of sexual conduct or incipient sexual conduct.
SECTION 41. Section 97-5-33, Mississippi Code of 1972, is brought forward as follows:
97-5-33. (1) No person shall, by any means including computer, cause, solicit or knowingly permit any child to engage in sexually explicit conduct or in the simulation of sexually explicit conduct for the purpose of producing any visual depiction of such conduct.
(2) No person shall, by any means including computer, photograph, film, video tape or otherwise depict or record a child engaging in sexually explicit conduct or in the simulation of sexually explicit conduct.
(3) No person shall, by any means including computer, knowingly send, transport, transmit, ship, mail or receive any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(4) No person shall, by any means including computer, receive with intent to distribute, distribute for sale, sell or attempt to sell in any manner any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(5) No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(6) No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.
(7) No person shall by any means, including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct.
(8) The fact that an undercover operative or law enforcement officer posed as a child or was involved in any other manner in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.
(9) For purposes of determining jurisdiction, the offense is committed in this state if all or part of the conduct described in this section occurs in the State of Mississippi or if the transmission that constitutes the offense either originates in this state or is received in this state.
SECTION 42. Section 97-5-35, Mississippi Code of 1972, is brought forward as follows:
97-5-35. Any person who violates any provision of Section 97-5-33 shall be guilty of a felony and upon conviction shall be fined not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00) and shall be imprisoned for not less than five (5) years nor more than forty (40) years. Any person convicted of a second or subsequent violation of Section 97-5-33 shall be fined not less than One Hundred Thousand Dollars ($100,000.00) nor more than One Million Dollars ($1,000,000.00) and shall be confined in the custody of the Department of Corrections for life or such lesser term as the court may determine, but not less than twenty (20) years.
SECTION 43. Section 97-5-37, Mississippi Code of 1972, is brought forward as follows:
97-5-37. The provisions of Sections 97-5-31 through 97-5-37 are supplemental to any statute relating to child abuse or neglect, obscenity, enticement of children or contributing to delinquency of a minor and acquittal or conviction pursuant to any other statute shall not be a bar to prosecution under Sections 97-5-31 through 97-5-37. Acquittal or conviction under Sections 97-5-31 through 97-5-37 shall not be a bar to prosecution and conviction under other statutes defining crimes or misdemeanors, nor to any civil or administrative remedy otherwise available.
SECTION 44. Section 97-5-41, Mississippi Code of 1972, is brought forward as follows:
97-5-41. (1) Any person who shall have carnal knowledge of his or her unmarried stepchild or adopted child younger than himself or herself and over fourteen (14) and under eighteen (18) years of age, upon conviction, shall be punished by imprisonment in the Penitentiary for a term not exceeding ten (10) years.
(2) Any person who shall have carnal knowledge of an unmarried child younger than himself or herself and over fourteen (14) and under eighteen (18) years of age, with whose parent he or she is cohabiting or living together as husband and wife, upon conviction, shall be punished by imprisonment in the Penitentiary for a term not exceeding ten (10) years.
SECTION 45. Section 97-5-42, Mississippi Code of 1972, is brought forward as follows:
97-5-42. (1) (a) For purposes of this section, a conviction of felony parental child sexual abuse shall include any nolo contendere plea, guilty plea or conviction at trial to any offense enumerated in Section 93-15-103(3)(g) or any other statute of the State of Mississippi whereby a parent may be penalized as a felon on account of sexual abuse of his or her own child; and shall include any conviction by plea or trial in any other state of the United States to an offense whereby a parent may be penalized as a felon for sexual abuse of his or her own child under the laws of that state, or which would be so penalized for such conduct had the act or acts been committed in the State of Mississippi.
(b) A certified copy of the court order or judgment evidencing such a conviction shall be accepted by any public office with responsibilities pursuant to this section, and by any court in the State of Mississippi, as conclusive evidence of the conviction.
(2) (a) No person who has been convicted of felony parental child sexual abuse shall contact or attempt to contact the victim child without the prior express written permission of the child's then legal custodian, who may be the other parent, a guardian, person in loco parentis or person with legal or physical custody of a child.
(b) No person who has been convicted of felony parental child sexual abuse shall harass, threaten, intimidate or by any other means menace the victim child or any legal custodian of the child, who may be the other parent, a guardian, person in loco parentis or person with legal or physical custody of a child.
(c) Any person who believes that a person who has been convicted of felony parental child sexual abuse may violate the provisions of subsection (2)(a) or (2)(b) hereof may register with the sheriff and any municipal law enforcement agency of the child's county and municipality of residence, setting forth the factual basis for that belief which shall include a certified copy of the court order or judgment evidencing the conviction of the child sexual abuse felon. The sheriff's office of each county and all municipal law enforcement agencies shall maintain a separate and distinct register for the purpose of recording the data required herein, and shall advise the reporting party of how emergency contact can be made with that office at any time with respect to a threatened violation of subsection (2)(a) or (2)(b) hereof. Immediate response with police protection shall be provided to any emergency contact made pursuant to this section, which police protection shall be continued in such reasonable manner as to deter future violations and protect the child and any person with legal custody of the child.
(d) Any person who has been convicted of felony parental child sexual abuse who violates subsection (2)(a) hereof shall, upon conviction, be punished by imprisonment in the county jail for not more than one (1) year. Any person who has been convicted of felony parental child sexual abuse who violates subsection (2)(b) hereof shall, upon conviction, be punished by imprisonment in the State Penitentiary for not more than five (5) years.
(3) No person who has been convicted of felony parental child sexual abuse shall be entitled to have parental or other visitation rights as to that child who was the victim, unless he or she files a petition in the chancery court of the county in which the child resides, reciting the conviction, and joining as parties defendant any other parent, guardian, person standing in loco parentis or having legal or physical custody of the child. A guardian ad litem shall be appointed to represent the child at petitioner's expense. The court shall appoint a qualified psychologist or psychiatrist to conduct an independent examination of the petitioner to determine whether contact with that person poses a physical or emotional risk to the child, and report to the court. Such examination shall be at petitioner's expense. The court shall require any such petitioner to deposit with the court sufficient funds to pay expenses chargeable to a petitioner hereunder, the amount of such deposit to be within the discretion of the chancellor. Any defendant and the child through his or her guardian ad litem shall be entitled to a full evidentiary hearing on the petition. In no event shall a child be required to testify in court or by deposition, or be subjected to any psychological examination, without the express consent of the child through his or her guardian ad litem. Such guardian ad litem shall consult with the child's legal guardian or custodians before consenting to such testimony or examination. At any hearing there is a rebuttable presumption that contact with the child poses a physical and emotional risk to the child. That presumption may be rebutted and visitation or contact allowed on such terms and conditions that the chancery court shall set only upon specific written findings by the court that:
(a) Contact between the child and the offending parent is appropriate and poses minimal risk to the child;
(b) If the child has received counseling, that the child's counselor believes such contact is in the child's best interest;
(c) The offending parent has successfully engaged in treatment for sex offenders or is engaged in such treatment and making progress; and
(d) The offending parent's treatment provider believes contact with the child is appropriate and poses minimal risk to the child. If the court, in its discretion, allows visitation or contact it may impose such conditions to the visitation or contact which it finds reasonable, including supervision of contact or visitation by a neutral and independent adult with a detailed plan for supervision of any such contact or visitation.
SECTION 46. Section 97-29-1, Mississippi Code of 1972, is brought forward as follows:
97-29-1. If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than Five Hundred Dollars ($500.00) each, and imprisoned in the county jail not more than six (6) months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.
SECTION 47. Section 97-29-3, Mississippi Code of 1972, is brought forward as follows:
97-29-3. If any teacher and any pupil under eighteen (18) years of age of such teacher, not being married to each other, shall have sexual intercourse, each with the other, they shall, for every such offense, be fined in any sum, not more than Five Hundred Dollars ($500.00) each, and the teacher may be imprisoned not less than three (3) months nor more than six (6) months.
SECTION 48. Section 97-29-5, Mississippi Code of 1972, is brought forward as follows:
97-29-5. Persons being within the degrees within which marriages are prohibited by law to be incestuous and void, or persons who are prohibited from marrying by reason of blood and between whom marriage is declared to be unlawful and void, who shall cohabit, or live together as husband and wife, or be guilty of a single act of adultery or fornication, upon conviction, shall be punished by imprisonment in the Penitentiary for a term not exceeding ten (10) years.
SECTION 49. Section 97-29-7, Mississippi Code of 1972, is brought forward as follows:
97-29-7. If any guardian and ward of such guardian, not being married to each other, shall have sexual intercourse each with the other, they shall for every such offense be fined in any sum not more than Five Hundred Dollars ($500.00) each and the guardian shall be imprisoned not less than three (3) months nor more than six (6) months.
SECTION 50. Section 97-29-9, Mississippi Code of 1972, is brought forward as follows:
97-29-9. If any persons, citizens or residents of this state, who are prohibited by the laws thereof from marrying, because of kindred, shall go out of this state for the purpose of marrying, and shall marry in any other state or country and return to this state and live together and cohabit as man and wife, or be guilty of a single act of copulation, they shall, on conviction, be punished, notwithstanding their marriage out of this state, by imprisonment in the Penitentiary not longer than ten (10) years, or be fined Five Hundred Dollars ($500.00), or both.
SECTION 51. Section 97-29-49, Mississippi Code of 1972, is brought forward as follows:
97-29-49. It shall be unlawful to engage in prostitution or to aid or abet prostitution or to procure or solicit for the purposes of prostitution, or to reside in, enter, or remain in any place, structure, or building, or to enter or remain in any vehicle or conveyance for the purpose of lewdness, assignation, or prostitution, or to keep or set up a house of ill-fame, brothel or bawdy house, or to receive any person for purposes of lewdness, assignation, or prostitution into any vehicle, conveyance, place, structure or building, or to permit any person to remain for the purpose of lewdness, assignation, or prostitution in any vehicle, conveyance, place, structure, or building, or to direct, take, or transport, or to offer or agree to take or transport, or aid or assist in transporting, any person to any vehicle, conveyance, place, structure, or building, or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking or transporting is prostitution, lewdness or assignation, or to lease or rent or contract to lease or rent any vehicle, conveyance, place, structure, or building, or part thereof, knowing or with good reason to know that it is intended to be used for any of the purposes herein prohibited, or to aid, abet, or participate in the doing of any of the acts herein prohibited.
SECTION 52. Section 97-29-51, Mississippi Code of 1972, is brought forward as follows:
97-29-51. It shall further be unlawful to procure a female inmate for a house of prostitution, or to cause, induce, persuade, or encourage by promise, threat, violence, or by scheme or device, a female to become a prostitute or to remain an inmate of a house of prostitution, or to induce, persuade, or encourage a female to come into or leave this state for the purpose of prostitution, or to become an inmate in a house of prostitution, or to receive or give, or agree to receive or give any money or thing of value for procuring, or attempting to procure any female to become a prostitute or an inmate in a house of prostitution, or to knowingly accept, receive, levy or appropriate any money or other thing of value without consideration from a prostitute or from the proceeds of any woman engaged in prostitution.
SECTION 53. Section 97-29-53, Mississippi Code of 1972, is brought forward as follows:
97-29-53. Any person, partnership, association or corporation violating any provision of Sections 97-29-49 or 97-29-51 shall, upon conviction, be punished by a fine not exceeding Two Hundred Dollars ($200.00) or by confinement in the county jail for not more than six (6) months, or by both such fine and imprisonment.
SECTION 54. Section 97-29-55, Mississippi Code of 1972, is brought forward as follows:
97-29-55. If any person shall obtain carnal knowledge of any woman, or female child, over the age of eighteen (18) years, of previous chaste character, by virtue of any feigned or pretended marriage or any false or feigned promise of marriage, he shall, upon conviction, be imprisoned in the Penitentiary not more than five (5) years; but the testimony of the female seduced, alone, shall not be sufficient to warrant a conviction.
SECTION 55. Section 97-29-59, Mississippi Code of 1972, is brought forward as follows:
97-29-59. Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the Penitentiary for a term of not more than ten (10) years.
SECTION 56. Section 97-29-61, Mississippi Code of 1972, is brought forward as follows:
97-29-61. Any person who enters upon real property whether the original entry is legal or not, and thereafter pries or peeps through a window or other opening in a dwelling or other building structure for the lewd, licentious and indecent purpose of spying upon the occupants thereof, shall be guilty of a felonious trespass; and upon conviction, shall be imprisoned in the State Penitentiary not more than five (5) years.
SECTION 57. Section 97-29-63, Mississippi Code of 1972, is brought forward as follows:
97-29-63. Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony and upon conviction shall be punished by a fine of Five Thousand Dollars ($5,000.00) or by imprisonment of not more than five (5) years in the custody of the Department of Corrections, or both.
SECTION 58. Section 97-29-101, Mississippi Code of 1972, is brought forward as follows:
97-29-101. A person commits the offense of distributing obscene materials or obscene performances when he sells, rents, leases, advertises, publishes or exhibits to any person any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. A person commits the offense of wholesale distributing obscene materials or obscene performances when he distributes for the purpose of resale any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. The word "knowing" as used in this section means either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. The character and reputation of an individual charged with an offense under Sections 97-29-101 through 97-29-109 and, if a commercial dissemination of obscene material or an obscene performance is involved, the character and reputation of the business establishment involved, may be placed in evidence by the defendant on the question of intent to violate Sections 97-29-101 through 97-29-109.
Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of Five Hundred Dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.
SECTION 59. Section 97-29-103, Mississippi Code of 1972, is brought forward as follows:
97-29-103. (1) Material or performance is obscene if:
(a) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and
(b) The material taken as a whole lacks serious literary, artistic, political or scientific value; and
(c) The material depicts or describes in a patently offensive way, sexual conduct specifically defined in subparagraphs (i) through (v) below:
(i) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;
(ii) Acts of masturbation;
(iii) Acts involving excretory functions or lewd exhibition of the genitals;
(iv) Acts of bestiality or the fondling of sex organs of animals; or
(v) Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.
(2) Undeveloped photographs, molds, printing plates and the like shall be deemed obscene material, notwithstanding that processing or other acts may be required to make the obscenity patent or to distribute it.
(3) "Performance" means a play, motion picture, dance or other exhibition performed before an audience.
(4) "Patently offensive" means so offensive on its face as to affront current community standards of decency.
(5) "Wholesale distributes" means to distribute for the purpose of resale.
(6) "Material" means any book, magazine, newspaper, advertisement, pamphlet, poster, print, picture, figure, image, drawing, description, motion picture film, phonographic record, recording tape, video tape, or other tangible thing producing, reproducing or capable of producing or reproducing an image, picture, sound or sensation through sight, sound or touch, but it does not include an actual three-dimensional sexual device as defined in Section 97-29-105.
SECTION 60. Section 97-29-105, Mississippi Code of 1972, is brought forward as follows:
97-29-105. A person commits the offense of distributing unlawful sexual devices when he knowingly sells, advertises, publishes or exhibits to any person any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so. A person commits the offense of wholesale distributing unlawful sexual devices when he distributes for the purpose of resale any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so.
Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of Five Hundred Dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.
SECTION 61. Section 97-29-107, Mississippi Code of 1972, is brought forward as follows:
97-29-107. (1) Sections 97-29-101 through 97-29-109 shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:
(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device;
(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or care;
(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library of any public or private school, college or university in this state; or
(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the State of Mississippi.
(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether sufficient evidence exists to constitute an exemption from prosecution under the provisions of Sections 97-29-101 through 97-29-109. If the motion is sustained, the case shall be dismissed; provided, however, if the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under this act any matter which could have been raised by the defendant in the motion to dismiss.
SECTION 62. Section 97-29-109, Mississippi Code of 1972, is brought forward as follows:
97-29-109. Any person, except one who wholesale distributes, who violates Section 97-29-101 or Section 97-29-105 shall be guilty of a misdemeanor and, upon conviction, shall, in the case of the first offense, be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both. If the person has been previously convicted of a violation of Section 97-29-101 or Section 97-29-105 or of Section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall be fined not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Ten Thousand Dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both.
Any person who wholesale distributes in violation of Section 97-29-101 or Section 97-29-105 shall, upon conviction, be fined not more than Ten Thousand Dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both. If the person has been previously convicted of a violation of Section 97-29-101 or Section 97-29-105 or of Section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall, upon conviction, be fined not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Fifty Thousand Dollars ($50,000.00) or imprisoned for a term not to exceed one (1) year, or both.
A corporation, company, partnership, firm, association, business, establishment, organization or other legal entity other than an individual convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices shall be fined not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00). If such legal entity has been previously convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices or of a violation of Section 97-5-27 or Section 97-5-29, Mississippi Code of 1972, then such legal entity shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than Fifty Thousand Dollars ($50,000.00).
SECTION 63. This act shall take effect and be in force from and after July 1, 2010.