MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary, Division B
By: Senator(s) Polk, Smith
AN ACT TO AMEND SECTION 47-7-35, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT SEX OFFENDERS WHOSE VICTIM WAS UNDER THE AGE OF 16 SUBMIT TO A POLYGRAPH EXAM FOR THE PURPOSE OF DETERMINING IF OTHER MINOR CHILDREN MAY HAVE BEEN VICTIMS; TO AMEND SECTION 45-33-23, MISSISSIPPI CODE OF 1972, TO ENACT A DEFINITION OF POLYGRAPH EXAMINATION; TO AMEND SECTION 45-33-25, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT SEX OFFENDER REGISTRANTS WHOSE VICTIM WAS UNDER THE AGE OF 16 SUBMIT TO A POLYGRAPH EXAM UPON SENTENCING OR RELEASE ON SUPERVISION; TO AMEND SECTION 45-33-31, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT SEX OFFENDER REGISTRANTS WHOSE VICTIM WAS UNDER THE AGE OF 16 SUBMIT TO AN ANNUAL POLYGRAPH EXAM AS PART OF THE REREGISTRATION PROCESS; TO AMEND SECTION 45-33-33, MISSISSIPPI CODE OF 1972, TO CONFORM THE PUNISHMENT FOR VIOLATION OF THE SEX OFFENDER REGISTRATION CHAPTER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 47-7-35, Mississippi Code of 1972, is amended as follows:
47-7-35. (1) The courts referred to in Section 47-7-33 or 47-7-34 shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision, the conditions:
(a) The court * * * may include among the conditions the following or any other: That the offender shall:
(i) Commit no offense against the laws of this or any other state of the United States, or of any federal, territorial or tribal jurisdiction of the United States;
(ii) Avoid injurious or vicious habits;
(iii) Avoid persons or places of disreputable or harmful character;
(iv) Report to the probation and parole officer as directed;
(v) Permit the probation and parole officer to visit him at home or elsewhere;
(vi) Work faithfully at suitable employment so far as possible;
(vii) Remain within a specified area;
(viii) Pay his fine in one (1) or several sums;
(ix) Support his dependents;
(x) Submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.
(b) The court shall require that the offender register as a sex offender if so required under Title 45, Chapter 33, and, if the victim of the offense for which registration is required was under sixteen (16) years of age, submit to a polygraph examination at his own expense upon sentencing or release, and annually thereafter, while under the supervision of the Department of Corrections, the intent of the polygraph examination being to determine if there are additional underage victims and to refer those children to the Department of Human Services for follow-up and treatment.
(2) When any court places a defendant on misdemeanor probation, the court must cause to be conducted a search of the probationer's name or other identifying information against the registration information regarding sex offenders maintained under Title 45, Chapter 33. The search may be conducted using the Internet site maintained by the Department of Public Safety Sex Offender Registry.
SECTION 2. 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, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Marianna Islands or the United States Virgin Islands, 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 109-248.
(b) "Jurisdiction" means any court or locality including any state court, federal court, military court, Indian tribunal or foreign court, the fifty (50) states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Marianna Islands or the United States Virgin Islands, and Indian tribes that elect to function as registration jurisdictions under Title 1, SORNA Section 127 of the Adam Walsh Child Safety Act.
(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) "Polygraph" means an instrument that records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and that is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.
(e) "Registration" means providing information to the appropriate agency within the time frame specified as required by this chapter.
(f) "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.
(g) "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 jurisdiction and who is to reside, work or attend school in this state, the responsible agency is both the sheriff of the proposed county of residence and the department.
(h) "Sex offense" or "registrable 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) 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) 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 43-47-18 relating to sexual abuse of a vulnerable adult;
(xiii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(xiv) Section 97-29-63 relating to filming another without permission where there is an expectation of privacy;
(xv) Section 97-29-45 relating to obscene electronic communication;
(xvi) Section 97-3-104 relating to the crime of sexual activity between law enforcement, correctional or custodial personnel and prisoners;
(xvii) Section 97-5-39(1)(c) relating to contributing to the neglect or delinquency of a child, felonious abuse or battery of a child, if the victim was sexually abused;
(xviii) 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;
(xix) Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had;
(xx) Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this section;
(xxi) Capital murder when one (1) of the above-described offenses is the underlying crime.
(i) "Temporary residence" is defined as any place where the person abides, lodges, or resides for a period of seven (7) or more consecutive days which is not the person's permanent residence.
(j) "Department" unless otherwise specified is defined as the Mississippi Department of Public Safety.
SECTION 3. Section 45-33-25, Mississippi Code of 1972, is amended as follows:
45-33-25. (1) (a) Any person having a permanent or temporary residence in this state or who is employed or attending school in this state who has been convicted of a registrable offense in this state or another jurisdiction shall register with the responsible agency and 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 name, change of address, change of status at a school, or other change of information as required by the department to the sheriff of the county of the residence address of the registrant, the sheriff of the county of the employment address, and the sheriff of the county of the school address, if applicable, and any other jurisdiction 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 or who is employed or attending school 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 responsible agency and shall personally appear at a Mississippi Department of Public Safety Driver's License Station within three (3) business days of registering with the responsible agency:
(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 at which the sex offender resides or habitually lives, including dates of temporary lodgings;
(c) Date, place and address of employment, including as a volunteer or unpaid intern or as a transient or day laborer;
(d) Crime for which charged, arrested or convicted;
(e) Date and place of conviction, adjudication or acquittal by reason of insanity;
(f) Aliases used or nicknames, ethnic or tribal names by which commonly known;
(g) Social security number and any purported social security number or numbers;
(h) Date and place of birth and any purported 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 or other jurisdiction 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, including permanent or frequent locations where the motor vehicle, trailer, mobile home, manufactured home, vessel or houseboat is kept;
(n) Vehicle make, model, color and license tag number for all vehicles owned or operated by the sex offender, whether for work or personal use, and the permanent or frequent locations where a vehicle is kept;
(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, or will be 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;
(x) Professional licensing information which authorizes the registrant to engage in an occupation or carry out a trade or occupation;
(y) Information from passport and immigration documents;
(z) All telephone numbers, including, but not limited to, permanent residence, temporary residence, cell phone and employment phone numbers, whether landlines or cell phones; and
(aa) 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, ballpark 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, ballpark 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, ballpark 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.
(6) Upon conviction, adjudication or acquittal by reason of insanity of any sex offender where the victim of the offense was under sixteen (16) years of age, the offender shall submit to a polygraph examination at the offender's own expense for the purpose of any of the following:
(a) (i) Disclosing offense pattern information for treatment purposes;
(ii) Holding the offender accountable for behaviors which occur while a sex offender registrant;
(iii) Verifying the accuracy of self-reporting;
(iv) Assisting in the monitoring and early identification of rule violations and other criminal behavior;
(v) Providing a deterrent to reoffending;
(vi) Identifying the offenders who need additional supervision or treatment;
(vii) Providing more information for purposes of assessment, treatment and monitoring;
(viii) Identifying for purposes of referral and treatment other minor victims of the parolee or probationer.
(b) The polygraph examination may not be used as a punishment or sanction.
SECTION 4. Section 45-33-31, Mississippi Code of 1972, is amended as follows:
45-33-31. (1) 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 or status at a school, 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. The Department of Public Safety will immediately notify any sheriff or other jurisdiction of any changes in information including residence address, employment and status at a school if that jurisdiction, county or municipality is affected by the change.
(2) Registrants are required to submit to an annual polygraph examination, at the registrant's own expense, for the purposes set forth in Section 45-33-25.
SECTION 5. Section 45-33-33, Mississippi Code of 1972, is amended 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, 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, or to submit to a polygraph examination 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 and issue a warrant for the offender's arrest. The department shall notify the United States Marshal Service of the offender's noncompliant status and shall update the registry database and website to show the defendant's noncompliant status as an absconder.
(4) A violation of this chapter shall result in the arrest of the offender.
(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, or who has provided false information.
SECTION 6. This act shall take effect and be in force from and after July 1, 2012.