HB1356_S_Amend

Adopted

AMENDMENT NO 1 PROPOSED TO

House Bill No. 1356

BY: Senator(s) Doty, Blount

AMEND by inserting after line 330 the following, and renumbering subsequent sections:

SECTION *. Section 93-5-1, Mississippi Code of 1972, is amended as follows:

93-5-1. Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve (12) causes:

First. Natural impotency.

Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.

Third. Being sentenced to any penitentiary, and not pardoned before being sent there.

Fourth. Willful, continued and obstinate desertion for the space of one (1) year.

Fifth. Habitual drunkenness.

Sixth. Habitual and excessive use of opium, morphine or other like drug.

Seventh. * * * ~~Habitual~~ Cruel and inhuman treatment, including spousal domestic abuse.

Spousal domestic abuse includes, but is not limited to:

Abusive physical conduct established through the reliable testimony of one or more credible witnesses, any of whom may be the injured party, that the injured party's spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party; or that the injured party's spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or

Abusive nonphysical conduct established through the reliable testimony of one or more credible witnesses, any of whom may be the injured party, that the injured party's spouse engaged in a pattern of behavior against the injured party of threats or intimidation; emotional or verbal abuse; forced isolation; sexual extortion or sexual abuse; stalking or aggravated stalking as defined in Section 97-3-107; or economic or financial abuse.

The standard of proof for spousal domestic abuse is clear and convincing evidence if there is only the reliable testimony of a single credible witness, who may be the injured party; or a preponderance of the evidence if the reliable testimony of a single credible witness, who may be the injured party, is corroborated by other credible physical or forensic evidence presented to the court.

Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.

Ninth. Marriage to some other person at the time of the pretended marriage between the parties.

Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.

Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.

Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action. However, transfer of a party with mental illness to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the party with mental illness in an institution for persons with mental illness, shall be regular treatment for mental illness and causes thereof, and the period of time so consumed in seeking to effect a cure or while on a trial visit home shall be added to the period of actual confinement in an institution for persons with mental illness in computing the required period of three (3) years confinement immediately preceding the beginning of the action. No divorce shall be granted because of mental illness until after a thorough examination of the person with mental illness by two (2) physicians who are recognized authorities on mental diseases. One (1) of those physicians shall be either the superintendent of a state psychiatric hospital or institution or a veterans hospital for persons with mental illness in which the patient is confined, or a member of the medical staff of that hospital or institution who has had the patient in charge. Before incurable mental illness can be successfully proven as a ground for divorce, it shall be necessary that both of those physicians make affidavit that the patient is a person with mental illness at the time of the examination, and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable mental illness, such as would justify a divorce based on that ground. Service of process shall be made on the superintendent of the hospital or institution in which the defendant is a patient. If the patient is in a hospital or institution outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of the hospital or institution. In addition, process shall be served upon the next blood relative and guardian, if any. If there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the person with mental illness. The relative or guardian and superintendent of the hospital or institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the person with mental illness shall not be altered in any way by the granting of the divorce.

However, in the discretion of the chancery court, and in those cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable mental illness, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the person with mental illness during the remainder of his or her natural life, unless the person with mental illness has a sufficient estate in his or her own right for that purpose.

SECTION *. The following shall be codified as Section 95-17-1, Mississippi Code of 1972:

95-17-1. In this chapter:

(a) "Intimate parts," "promote," "sexual conduct," and "visual material" have the meanings given in Section 97-29-67.

(b) "Intimate visual material" means visual material that depicts a person:

(i) With the person's intimate parts exposed; or

(ii) Engaged in sexual conduct.

SECTION *. The following shall be codified as Section 95-17-3, Mississippi Code of 1972:

95-17-3. (1) A defendant is liable, to a person depicted in intimate visual material for damages arising from the disclosure of the material if:

(a) The defendant discloses the intimate visual material without the effective consent of the depicted person;

(b) The intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

(d) The disclosure of the intimate visual material reveals the identity of the depicted person in any manner, including through:

(i) Any accompanying or subsequent information or material related to the intimate visual material; or

(ii) Information or material provided by a third party in response to the disclosure of the intimate visual material.

(2) A defendant is liable, to a person depicted in intimate visual material for damages arising from the promotion of the material if, knowing the character and content of the material, the defendant promotes intimate visual material described by subsection (1) on an Internet website or other forum for publication that is owned or operated by the defendant.

SECTION *. The following shall be codified as Section 95-17-5, Mississippi Code of 1972:

95-17-5. (1) A claimant who prevails in a suit under this chapter shall be awarded:

(a) Actual damages, including damages for mental anguish;

(b) Court costs; and

(2) In addition to an award under subsection (1), a claimant who prevails in a suit under this chapter may recover exemplary damages.

SECTION *. The following shall be codified as Section 95-17-7, Mississippi Code of 1972:

95-17-7. (1) A court in which a suit is brought under this chapter, on the motion of a party, may issue a temporary restraining order or a temporary or permanent injunction to restrain and prevent the disclosure or promotion of intimate visual material with respect to the person depicted in the material.

(2) A court that issues a temporary restraining order or a temporary or permanent injunction under subsection (1) may award to the party who brought the motion damages in the amount of:

(a) One Thousand Dollars ($1,000.00) for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is willful or intentional; or

(b) Five Hundred Dollars ($500.00) for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is not willful or intentional.

SECTION *. The following shall be codified as Section 95-17-9, Mississippi Code of 1972:

95-17-9. The cause of action created by this chapter is cumulative and in addition to any other remedy available at common law or by statute.

SECTION *. The following shall be codified as Section 95-17-11, Mississippi Code of 1972:

95-17-11. A court has personal jurisdiction over a defendant in a suit brought under this chapter if:

(1) The defendant resides in this state;

(2) The claimant who is depicted in the intimate visual material resides in this state;

(3) The intimate visual material is stored on a server that is located in this state; or

(4) The intimate visual material is available for view in this state.

SECTION *. The following shall be codified as Section 95-17-13, Mississippi Code of 1972:

95-17-13. (1) This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.

(2) This chapter does not apply to a claim brought against an interactive computer service, as defined by 47 USC Section 230, for a disclosure or promotion consisting of intimate visual material provided by another person.

SECTION *. The following shall be codified as Section 97-29-67, Mississippi Code of 1972:

97-29-67. (1) In this section:

(a) "Intimate parts" means the female nipple or the naked genitals, pubic area, anus or buttocks.

(b) "Promote" means to do, or offer or agree to do, any of the following: procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise.

(c) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation or sadomasochistic abuse.

(d) "Simulated" means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

(e) "Visual material" means:

(i) Any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative or slide; or

(ii) Any physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method.

(2) A person commits an offense if:

(a) Without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;

(b) The visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(d) The disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(i) Any accompanying or subsequent information or material related to the visual material; or

(ii) Information or material provided by a third party in response to the disclosure of the visual material.

(3) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct and the person makes the threat to obtain a benefit:

(a) In return for not making the disclosure; or

(b) In connection with the threatened disclosure.

(4) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material on an Internet website or other forum for publication that is owned or operated by the person.

(5) It is not a defense to prosecution under this section that the depicted person:

(a) Created or consented to the creation of the visual material; or

(b) Voluntarily transmitted the visual material to the defendant.

(6) It is an affirmative defense to prosecution under this section that:

(a) The disclosure or promotion is made in the course of:

(i) Lawful and common practices of law enforcement or medical treatment;

(ii) Reporting unlawful activity; or

(iii) A legal proceeding, if the disclosure or promotion is permitted or required by law;

(b) The disclosure or promotion consists of visual material depicting in a public or commercial setting only a person's voluntary exposure of:

(i) The person's intimate parts; or

(ii) The person engaging in sexual conduct; or

(iii) The actor is an interactive computer service, as defined by 47 USC Section 230, and the disclosure or promotion consists of visual material provided by another person.

(7) A person found guilty of a violation of this section shall be punished by a fine not to exceed Four Thousand Dollars ($4,000.00), confinement in jail for a term not to exceed one (1) year, or both.

(8) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

FURTHER, amend on line 332 by changing "its passage" to "July 1, 2017"

FURTHER, amend the title on line 5 by inserting after the semicolon thereon the following:

TO AMEND SECTION 93-5-1, MISSISSIPPI CODE OF 1972, TO CREATE SPOUSAL DOMESTIC ABUSE AS ADDITIONAL GROUNDS FOR FAULT DIVORCE; TO PROHIBIT SEXUAL EXTORTION AND OTHER UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL; TO CREATE NEW SECTION

95-17-1, MISSISSIPPI CODE OF 1972, TO PROVIDE DEFINITIONS; TO CREATE NEW SECTION 95-17-3, MISSISSIPPI CODE OF 1972, TO PROVIDE LIABILITY FOR UNLAWFUL DISCLOSURE OR PROMOTION OF CERTAIN VISUAL MATERIAL; TO CREATE NEW SECTION 95-17-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DAMAGES; TO CREATE NEW SECTION 95-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR INJUNCTIVE RELIEF; TO CREATE NEW SECTION 95-17-9, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A CAUSE OF ACTION UNDER THIS ACT IS CUMULATIVE; TO CREATE NEW SECTION 95-17-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR JURISDICTION; TO CREATE NEW SECTION 95-17-13, MISSISSIPPI CODE OF 1972, TO PROVIDE EXCEPTIONS; TO CREATE NEW SECTION 97-29-67, MISSISSIPPI CODE OF 1972, TO CREATE THE CRIME OF UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL, AND TO ENACT DEFINITIONS AND PENALTIES;