Senate Bill 2360

(COMMITTEE SUBSTITUTE)

AN ACT TO AMEND SECTION 97-29-31, MISSISSIPPI CODE OF 1972, TO CREATE THE CRIME OF LEWD OR LASCIVIOUS EXHIBITION; TO AMEND SECTION 97-29-45, MISSISSIPPI CODE OF 1972, TO PROHIBIT OBSCENE ELECTRONIC COMMUNICATION TO CERTAIN MINORS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 97-29-31, Mississippi Code of 1972, is amended as follows:

97-29-31. (1) A person who willfully and lewdly exposes his person, or private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, is guilty of a misdemeanor and, on conviction, shall be punished by a fine not exceeding Five Hundred Dollars ($500.00) or be imprisoned not exceeding six (6) months, or both.

(2) (a) It is unlawful for a person who is twenty-one (21) years of age or older in the presence of another person who is less than sixteen (16) years of age to intentionally masturbate or to intentionally expose the genitals in a lewd or lascivious manner.

(b) The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this subsection (2) shall not constitute a defense to a prosecution under this subsection.

(c) A person convicted under this subsection shall be imprisoned in the custody of the Department of Corrections for not more than five (5) years, or subject to a fine of not more than Five Thousand Dollars ($5,000.00), or both.

(3) It is not a violation of this statute for a woman to breast-feed.

SECTION 2. Section 97-29-45, Mississippi Code of 1972, is amended as follows:

97-29-45. (1) It is unlawful for any person or persons:

(a) To make any comment, request, suggestion or proposal by means of telecommunication or electronic communication which is obscene, lewd or lascivious with intent to abuse, threaten or harass any party to a telephone conversation, telecommunication or electronic communication;

(b) To make a telecommunication or electronic communication with intent to terrify, intimidate or harass, and threaten to inflict injury or physical harm to any person or to his property;

(c) To make a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at the called number;

(d) To make or cause the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number;

(e) To make repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

(f) Knowingly to permit a computer or a telephone of any type under his control to be used for any purpose prohibited by this section.

(2) It is unlawful for a person who is twenty-one (21) years of age or older to intentionally or knowingly transmit or send to a person under the age of sixteen (16) years by means of electronic mail, personal messaging or any other Internet communication any communication or other item that constitutes sexually oriented material as described in Section 97-5-27(2), with knowledge of the character of the communication or item, when the person knows or believes at the time of the transmission that a person under the age of sixteen (16) years will receive the communication or item.

(3) Upon conviction of any person for the first offense of violating subsection (1) or (2) of this section, such person shall be fined not more than Five Hundred Dollars ($500.00) or imprisoned in the county jail for not more than six (6) months, or both.

(4) Upon conviction of any person for the second offense of violating subsection (1) or (2) of this section, the offenses being committed within a period of five (5) years, such person shall be fined not more than One Thousand Dollars ($1,000.00) or imprisoned in the county jail for not more than one (1) year, or both.

(5) For any third or subsequent conviction of any person violating subsection (1) or (2) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not more than Two Thousand Dollars ($2,000.00) and/or imprisoned in the State Penitentiary for not more than two (2) years, or both.

(6) The provisions of this section do not apply to a person or persons who make a telephone call that would be covered by the provisions of the federal Fair Debt Collection Practices Act, 15 USCS Section 1692 et seq.

(7) Any person violating this section may be prosecuted in the county where the telephone call, conversation or language originates in case such call, conversation or language originates in the State of Mississippi. In case the call, conversation or language originates outside of the State of Mississippi then such person shall be prosecuted in the county to which it is transmitted.

(8) For the purposes of this section, "telecommunication" and "electronic communication" mean and include any type of telephonic, electronic or radio communications, or transmission of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, cable, radio, electromagnetic, photoelectronic or photo-optical system or the creation, display, management, storage, processing, transmission or distribution of images, text, voice, video or data by wire, cable or wireless means, including the Internet.

(9) (a) No person shall be held to have violated this section solely for providing access or connection to telecommunications or electronic communications services where the services do not include the creation of the content of the communication. Companies organized to do business as commercial broadcast radio stations, television stations, telecommunications service providers, Internet service providers, cable service providers or news organizations shall not be criminally liable under this section.

(b) The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section shall not constitute a defense to prosecution under this section.

SECTION 3. This act shall take effect and be in force from and after July 1, 2012.