MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary B
By: Representative Moak
AN ACT TO CREATE THE SEXUAL OFFENSES AGAINST CHILDREN ACT; TO DEFINE TERMS; TO PROVIDE PENALTIES; TO REQUIRE REGISTRATION AS A SEX OFFENDER; TO PROVIDE A VICTIM'S BILL OF RIGHTS; TO AMEND SECTIONS 45-33-23 AND 99-1-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Sexual Offenses Against Children Act."
SECTION 2. (1) As used in this act the term "sexual offense against a victim who is a minor" includes every offense against a minor which involves any one or more of the following:
(a) Sexual conduct;
(b) Solicitation to engage in sexual conduct;
(c) Use in sexual performance;
(d) Solicitation to practice prostitution;
(e) Kidnapping;
(f) False imprisonment;
(g) Production, distribution or possession of child pornography; and
(h) Any attempt or conspiracy to commit an offense under this paragraph.
(2) As used in this act the term "sexual offender" means any person convicted of a sexual offense against a victim who is a minor.
(3) As used in this act "sex offense" shall have the meaning ascribed in Section 45-33-23.
SECTION 3. (1) A person who is convicted of a sexual offense against a victim who is a minor shall, unless a greater mandatory minimum sentence of imprisonment is otherwise provided by law and regardless of any maximum term of imprisonment otherwise provided for the offense and:
(a) If the sexual offense results in the death of the minor, be sentenced to mandatory life imprisonment and shall be eligible for the death penalty;
(b) If the sexual offense includes kidnapping, forcible rape, sodomy or maiming, or results in serious bodily injury, be imprisoned for life or any term of years not less than thirty (30) years;
(c) If the sexual offense results in bodily injury, be imprisoned for life or for any term of years not less than twenty (20) years;
(d) If a dangerous weapon was used during and in relation to the sexual offense, be imprisoned for life or for any term of years not less than fifteen (15) years; and
(e) In any other case, be imprisoned for life or for any term of not less than ten (10) years.
(2) (a) A person who is convicted of a sexual offense against a victim who is a minor shall be sentenced to life imprisonment if the person has a prior conviction for a sexual offense in which a minor was the victim, unless the sentence of death is imposed.
(b) The term "prior conviction for a sexual offense" means a conviction for which the sentence was imposed before the conduct occurred constituting the subsequent state sexual offense, and which was for a federal sexual offense or a state sexual offense.
(3) A sexual offense against a victim who is a minor may be prosecuted as provided in Section 99-1-5.
(4) Where the charge is one of a sexual offense against a victim who is a minor, pretrial release shall not be granted if the accused poses a substantial risk to the community and is highly likely to recidivate under the provisions of this act.
(5) A person who has been convicted of a sexual offense against a victim who is a minor shall, in addition to the term of imprisonment as provided by law, be placed on a term of probation or supervised release after imprisonment for a term not less than five (5) years and up to life.
(6) (a) A person who has been convicted of a sexual offense against a victim who is a minor shall be required to have electronic monitoring for the remainder of their probation or supervised release, wearing at all times a location-transmitting device.
(b) A person required to have electronic monitoring under this section shall bear the associated costs, unless it is determined that such costs would result in an undue economic hardship to the person.
(7) A person who, with the intent to assist the sexual offender in eluding a law enforcement entity that is seeking to find a sexual offender for questioning or arrest, shall:
(a) Withhold information from or not notify law enforcement about a sexual offender's noncompliance with the requirements of this section, and, if known, the whereabouts of the sexual offender;
(b) Harbor or attempt to harbor, or assist another person in harboring or attempting to harbor, a sexual offender;
(c) Conceal or attempt to conceal, or assist another person in concealing or attempting to conceal, a sexual offender; or
(d) Knowingly provide false information to law enforcement regarding a sexual offender. This shall be a felony and the offender shall be subject to up to two (2) years imprisonment or a fine of One Hundred Thousand Dollars ($100,000.00), or both.
(8) A person who has been convicted of a sexual offense against a victim who is a minor shall be required to pay restitution to the victim, or if the crime resulted in the victim's death, then to the victim's heirs.
SECTION 4. In the case of a sexual offender as defined in Section 2 of this act and in addition to any other requirements under this act and provided by law, any person convicted of a sexual offense against a victim who is a minor under this act must register with the state as a sexual offender as required by Sections 45-33-23 through 45-33-59.
SECTION 5. (1) In addition to any victim protections and rights afforded by state law, victims in cases involving sexual offenses committed against children shall, at a minimum, have the following rights:
(a) The right to be reasonably protected from the accused;
(b) The right to reasonable, accurate and timely notice of any public court proceeding involving the crime, or of any release or escape of the accused;
(c) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding;
(d) The right to be reasonably heard at any public proceeding in the trial court involving release, plea, sentencing or any probation/supervised release proceeding;
(e) The reasonable right to confer with the attorney for the government in the case;
(f) The right to full and timely restitution as provided in law;
(g) The right to proceedings free from unreasonable delay;
(h) The right to be treated with fairness and with respect for the victim's dignity and privacy.
(2) In any court proceeding involving an offense under this act, the court shall ensure that the crime victim is afforded the rights described in subsection (1). Before making a determination described in subsection (1)(c), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternative to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this section shall be clearly stated on the record.
SECTION 6. Section 45-33-23, Mississippi Code of 1972, is amended 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 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;
(xx) A sexual offense against a victim who is a minor as defined in Section 2 of House Bill No. , 2011 Regular Session.
(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 7. Section 99-1-5, Mississippi Code of 1972, is amended as follows:
99-1-5. The passage of time shall never bar prosecution against any person for the offenses of murder, manslaughter, aggravated assault, kidnapping, arson, burglary, forgery, counterfeiting, robbery, larceny, rape, embezzlement, obtaining money or property under false pretenses or by fraud, felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, sexual battery of a child as described in Section 97-3-95(1)(c), (d) or (2), or exploitation of children as described in Section 97-5-33. A person shall not be prosecuted for conspiracy, as described in Section 97-1-1, or for felonious assistance program fraud, as described in Section 97-19-71, or a sexual offense against a victim who is a minor as defined in Section 2 of House Bill No._____, 2011 Regular Session, unless the prosecution for such offense be commenced within five (5) years next after the commission thereof. A person shall not be prosecuted for larceny of timber as described in Section 97-17-59, unless the prosecution for such offense be commenced within six (6) years next after the commission thereof. A person shall not be prosecuted for any other offense not listed in this section unless the prosecution for such offense be commenced within two (2) years next after the commission thereof. Nothing contained in this section shall bar any prosecution against any person who shall abscond or flee from justice, or shall absent himself from this state or out of the jurisdiction of the court, or so conduct himself that he cannot be found by the officers of the law, or that process cannot be served upon him.
SECTION 8. This act shall take effect and be in force from and after July 1, 2011.