MISSISSIPPI LEGISLATURE

2013 Regular Session

To: Judiciary, Division B

By: Senator(s) Watson

Senate Bill 2718

AN ACT TO AMEND SECTION 45-33-23, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "SEX OFFENSE" FOR PURPOSES OF THE SEX OFFENDER REGISTRATION; TO AMEND SECTION 45-33-47, MISSISSIPPI CODE OF 1972, TO CONFORM THE TIERS ASSIGNED TO THE VARIOUS SEX OFFENSES FOR WHICH REGISTRATION IS ASSIGNED; AND FOR RELATED PURPOSES.

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

     SECTION 1.  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) of 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)  "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 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.

          (g)  "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 97-29-61(2) relating to voyeurism when the victim is a child under sixteen (16) years of age;

              (xv)  Section 97-29-63 relating to filming another without permission where there is an expectation of privacy;

              (xvi)  Section 97-29-45 relating to obscene electronic communication;

              (xvii)  Section 97-3-104 relating to the crime of sexual activity between law enforcement, correctional or custodial personnel and prisoners;

              (xviii)  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;

              (xix)  Section 41-23-2 or 41-3-59 relating to the knowing and willful violation of the lawful order of the county, district or state health officer by persons afflicted with a life-threatening communicable disease or causative agent thereof when the order deals with the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmitted disease, if the violation involves sexual activity;

              (xx)  Section 97-27-14 relating to knowing exposure to the Human Immunodeficiency Virus (HIV), if the offense involved sexual activity;

              ( * * *xixxxi)  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;

              ( * * *xxxxii)  Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had;

              ( * * *xxixxiii)  Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this section;

              ( * * *xxiixxiv)  Capital murder when one (1) of the above-described offenses is the underlying crime.

          (h)  "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.

          (i)  "Department" unless otherwise specified is defined as the Mississippi Department of Public Safety.

     SECTION 2.  Section 45-33-47, Mississippi Code of 1972, is amended 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 the required minimum registration 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 or as determined by the offender's tier classification.  Incarceration for any offense will restart the minimum registration requirement.  Registration in any other jurisdiction does not reduce the minimum time requirement for maintaining registration in Mississippi.

          (b)  (i)  Tier One requires registration for a minimum of fifteen (15) years in this state and includes any of the following listed registrable sex offenses:

                   1.  Section 97-5-27(1) relating to dissemination of sexually oriented material to children.

                   2.  Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier.

                   3.  Section 41-23-2 or 41-3-59 relating to the knowing and willful violation of the lawful order of the county, district or state health officer by persons afflicted with a life-threatening communicable disease or causative agent thereof when the order deals with the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmitted disease, if the violation involves sexual activity.

                   4.  Section 97-27-14 relating to knowing exposure to the Human Immunodeficiency Virus (HIV), if the offense involved sexual activity.

              (ii)  Notwithstanding * * *another any other 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 the convictions classified as Tier One offenses.

          (c)  (i)  Tier Two requires registration for a minimum of twenty-five (25) years in this state and includes any of the following listed registrable sex offenses:

                   1.  Section 97-5-33(3) through (9) relating to the exploitation of children;

                   2.  Section 97-29-59 relating to unnatural intercourse;

                   3.  Section 97-29-63, relating to filming another without permission where there is an expectation of privacy;

                   4.  Section 97-3-104 relating to crime of sexual activity between law enforcement or correctional personnel and prisoners;

                   5.  Section 97-29-45 relating to obscene electronic communications;

                   6.  Section 43-47-18(2)(a) and (b) relating to gratification of lust or fondling by health care employees or persons in position of trust or authority;

                   7.  Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier;

              (ii)  Notwithstanding * * *another any other provision of this section, an offender may petition the appropriate circuit court to be relieved of the duty to register upon twenty-five (25) years' satisfaction of the requirements of this section for the convictions classified as Tier Two offenses.

          (d)  Tier Three requires lifetime registration, the registrant not being eligible to be relieved of the duty to register except as otherwise provided in this paragraph, and includes any of the following listed registrable sex offenses:

              (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 97-3-54.3 relating to aiding, abetting or conspiring to violate antihuman trafficking provisions;

              (ix)  Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;

              (x)  Section 97-29-3 relating to sexual intercourse between teacher and student;

              (xi)  Section 43-47-18 relating to sexual abuse of a vulnerable adult by health care employees or persons in a position of trust or authority;

              (xii)  Section 97-5-39(1)(c) relating to contributing to the neglect or delinquency of a child, felonious abuse and/or battery of a child, if the victim was sexually abused;

              (xiii)  Capital murder when one (1) of the above described offenses is the underlying crime;

              (xiv)  Any conviction for violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction; or

               (xv)  Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier * * *; or.

 * * *   (xvi)  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 but shall be eligible to petition to be relieved of the duty to register after twenty‑five (25) years of registration.

          (e)  An offender who has two (2) separate convictions for any of the offenses * * *described requiring registration 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.

          (f)  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.

          (g)  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.

          (h)  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.

          (i)  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.

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2013.