MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary B
By: Representative Cockerham
AN ACT TO AMEND SECTION 97-3-95, MISSISSIPPI CODE OF 1972, TO REVISE THE ELEMENTS FOR THE CRIME OF SEXUAL BATTERY; TO CREATE NEW CODE SECTION 97-3-96, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR OFFERING CERTAIN EVIDENCE DURING A TRIAL FOR THE CRIME OF SEXUAL ASSAULT; TO AMEND SECTION 97-3-65, MISSISSIPPI CODE OF 1972, TO REVISE THE ELEMENTS OF STATUTORY RAPE; TO AMEND SECTION 97-3-97, MISSISSIPPI CODE OF 1972, TO PROVIDE THE DEFINITIONS AND ELEMENTS FOR THE CRIME OF SEXUAL ASSAULT; TO PROVIDE THE PENALTIES FOR CONVICTION OF THE CRIME OF SEXUAL ASSAULT; TO AMEND SECTION 97-3-101, MISSISSIPPI CODE OF 1972, TO CREATE THE CRIME OF ATTEMPTED SEXUAL ASSAULT; TO AMEND SECTIONS 9-25-1, 13-1-401, 19-5-93, 37-3-51, 37-9-17, 37-11-29, 37-13-89, 37-28-49, 37-29-232, 37-115-41, 43-11-13, 43-47-18, 45-33-23, 45-33-25, 45-33-47, 93-15-121, 93-21-107, 93-21-115, 97-3-2, 97-3-19, 97-3-99, 97-5-40, 97-5-51, 99-1-5, 99-19-101, 99-35-115, 99-37-25, 11-13-41, 93-21-25, 99-3-7 AND 99-47-1, MISSISSIPPI CODE OF 1972, WHICH REFERENCES SEXUAL BATTERY, SEXUAL ASSAULT AND CRIMES OF VIOLENCE, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-3-95, Mississippi Code of 1972, is amended as follows:
97-3-95. (1) * * * The crime of sexual battery is
committed when a person engages in the:
(a) * * * Intentional
touching of the anus or genitals of another person, without the person's
consent, directly or through clothing; or
(b) * * * Intentional touching of the anus or genitals of
another person, without the person's consent, directly or through clothing, by
use of instrumentality.
* * *
(2) * * * This
section shall apply whether or not the perpetrator is married to the victim or
not.
SECTION 2. Section 97-3-65, Mississippi Code of 1972, is amended as follows:
97-3-65. (1) The crime of statutory rape is committed when:
(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person's spouse; or
(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person's spouse.
* * *
( * * *2) Upon conviction for statutory rape,
the defendant shall be sentenced as follows:
(a) If eighteen (18)
years of age or older, but under twenty-one (21) years of age, and convicted
under subsection (1)(a) of this section, to imprisonment for not more than five
(5) years in the * * * custody of the Department of Corrections or a
fine of not more than Five Thousand Dollars ($5,000.00), or both;
(b) If twenty-one (21)
years of age or older and convicted under subsection (1)(a) of this section, to
imprisonment of not more than thirty (30) years in the State Penitentiary or a
fine of not more than Ten Thousand Dollars ($10,000.00), or both, for the first
offense, and not more than forty (40) years in the * * * custody of the Department
of Corrections for each subsequent offense;
(c) If eighteen (18)
years of age or older and convicted under subsection (1)(b) of this section, to
imprisonment for life in the * * * custody of the
Department of Corrections or such lesser term of imprisonment as the court
may determine, but not less than twenty (20) years;
(d) If thirteen (13) years of age or older but under eighteen (18) years of age and convicted under subsection (1)(a) or (1)(b) of this section, such imprisonment, fine or other sentence as the court, in its discretion, may determine.
( * * *3) (a) Every person who shall have
forcible sexual intercourse with any person, or who shall have sexual
intercourse not constituting forcible sexual intercourse or statutory rape with
any person without that person's consent by administering to such person any
substance or liquid which shall produce such stupor or such imbecility of mind
or weakness of body as to prevent effectual resistance, upon conviction, shall
be imprisoned for life in the * * * custody of the Department
of Corrections if the jury by its verdict so prescribes; and in cases where
the jury fails to fix the penalty at life imprisonment, the court shall fix the
penalty at imprisonment in the * * * custody of the Department
of Corrections for any term as the court, in its discretion, may determine.
(b) This subsection (4) shall apply whether the perpetrator is married to the victim or not.
( * * *4) In all cases where a victim is
under the age of sixteen (16) years, it shall not be necessary to prove penetration
where it is shown the genitals, anus or perineum of the child have been
lacerated or torn in the attempt to have sexual intercourse with the child.
( * * *5) (a) Upon conviction under this
section, the court may issue a criminal sexual assault protection order
prohibiting the offender from any contact with the victim, without regard to
the relationship between the victim and offender. The court may include in a
criminal sexual assault protection order any relief available under Section 93-21-15.
The term of a criminal sexual assault protection order shall be for a time
period determined by the court, but all orders shall, at a minimum, remain in
effect for a period of two (2) years after the expiration of any sentence of
imprisonment and subsequent period of community supervision, conditional
release, probation, or parole. Upon issuance of a criminal sexual assault
protection order, the clerk of the issuing court shall enter the order in the
Mississippi Protection Order Registry within twenty-four (24) hours of
issuance, with no exceptions for weekends or holidays as provided in Section 93-21-25,
and a copy must be provided to both the victim and offender.
(b) Criminal sexual assault protection orders shall be issued on the standardized form developed by the Office of the Attorney General.
(c) It is a misdemeanor to knowingly violate any condition of a criminal sexual assault protection order. Upon conviction for a violation, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Any sentence imposed for the violation of a criminal sexual assault protection order shall run consecutively to any other sentences imposed on the offender. The court shall also be empowered to extend the criminal sexual assault protection order for a period of one (1) year for each violation. The incarceration of a person at the time of the violation is not a bar to prosecution under this section. Nothing in this subsection shall be construed to prohibit the imposition of any other penalties or disciplinary action otherwise allowed by law or policy.
( * * *6) For the purposes of this section,
"sexual intercourse" shall mean a joining of the sexual organs of a
male and female human being in which the penis of the male is inserted into the
vagina of the female or the penetration of the sexual organs of a male or
female human being in which the penis or an object is inserted into the
genitals, anus or perineum of a male or female.
SECTION 3. The following shall be codified as Section 97-3-96, Mississippi Code of 1972:
97-3-96. Sexual Assault; Procedure for introducing evidence of sexual conduct of complaining witness:
In any prosecution for sexual assault under Section 97-3-97, if evidence of the sexual conduct of the complainant is offered to attack the complainant, the following procedure shall be followed:
(a) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
(b) The written motion shall be accompanied by an affidavit which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall order a closed hearing in chambers, out of the presence of the jury, if any, and at such closed hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
(d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant and otherwise admissible, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
SECTION 4. Section 97-3-97, Mississippi Code of 1972, is amended as follows:
97-3-97. * * * (1) For purposes of this section, the
following words and phrases shall have the meanings as defined in this section
unless the content clearly indicates otherwise:
(a) * * * "Complaining witness" shall be defined as
the alleged victim of the crime charged.
(b) * * * "Consent" means a freely given agreement
to sexual activity; a person's lack of verbal or physical resistance or
submission resulting from the use or threat of force does not constitute
consent; a person's manner of dress does not constitute consent; a person's
consent to past sexual activity does not constitute consent to future sexual
activity; a person's consent to engage in sexual activity with a person does
not constitute consent to engage in sexual activity with another; a person can
withdraw consent at any time; and a person cannot consent to sexual activity if
that person is unable to understand the nature of the activity or give knowing
consent due to circumstances, including, without limitation, the following:
(i) The person is incapacitated due to the use of influence of alcohol or drugs;
(ii) The person is asleep or unconscious;
(iii) The person is under age; or
(iv) The person is incapacitated due to a mental disability.
(c) * * *
"Permanent incapacity" shall be defined as one who suffers from a
mental disease, defect, or conditions which renders that person temporarily or
permanently incapable of knowing the nature and quality of his or her conduct.
(d) * * * "Physically helpless person" shall be
defined as one who is unconscious or one who for any other reason is physically
incapable of communicating an unwillingness to engage in an act.
(e) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person's body or by an object into the genital opening, anal opening, and/or oral cavity of another person's body, but emission of semen is not required.
(f) "Temporary incapacity" shall be defined as one who is rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, alcohol, or other substance administered to that person without his or her consent.
(2) A person is guilty of sexual assault if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A temporarily incapacitated, permanently incapacitated or physically helpless person;
(c) A child at least fourteen (14) years of age but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child;
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child; or
(e) A child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including, without limitation, the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
(3) The provisions of this section shall be applicable regardless of whether the perpetrator is married to the victim or not.
(4) Upon conviction for sexual assault, the defendant shall be sentenced as follows:
(a) For a violation under paragraphs (a), (b) or (e) of subsection (2) of this act, imprisonment in the custody of the Department of Corrections for a period of not more than thirty (30) years, and for a second or subsequent such offense, imprisonment in the custody of the Department of Corrections for not more than forty (40) years;
(b) For a violation of paragraph (c) of subsection (2) of this section, for a person who is at least eighteen (18) years of age but less than twenty-one (21) years of age, imprisonment in the custody of the Department of Corrections for not more than five (5) years, or fined not more than Five Thousand Dollars ($5,000.00), or both;
(c) For a violation of paragraph (c) of subsection (2) of this section, for a person who is twenty-one (21) years of age or older, imprisonment in the custody of the Department of Corrections of not more than thirty (30) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both, for the first offense, and not more than forty (40) years in the custody of the Department of Corrections for each subsequent offense;
(d) For a violation of paragraph (d) of subsection (2) who is eighteen (18) years of age or older, imprisonment in the custody of the Department of Corrections for not less than twenty (20) years up to life imprisonment.
(5) Every person who shall be convicted of sexual battery who is thirteen (13) years of age or older but under eighteen (18) years of age shall be sentenced to such imprisonment, fine or other sentence as the court, in its discretion, may determine.
(6) (a) Upon conviction under this section, the court may issue a criminal sexual assault protection order prohibiting the offender from any contact with the victim, without regard to the relationship between the victim and offender. The court may include in a criminal sexual assault protection order any relief available under Section 93-21-15. The term of a criminal sexual assault protection order shall be for a time period determined by the court, but all orders shall, at a minimum, remain in effect for a period of two (2) years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole. Upon issuance of a criminal sexual assault protection order, the clerk of the issuing court shall enter the order in the Mississippi Protection Order Registry within twenty-four (24) hours of issuance with no exceptions for weekends or holidays as provided in Section 93-21-25, and a copy must be provided to both the victim and offender.
(b) Criminal sexual assault protection orders shall be issued on the standardized form developed by the Office of the Attorney General.
(c) It is a misdemeanor to knowingly violate any condition of a criminal sexual assault protection order. Upon conviction for a violation, the defendant shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Any sentence imposed for the violation of a criminal sexual assault protection order shall run consecutively to any other sentences imposed on the offender. The court may extend the criminal sexual assault protection order for a period of one (1) year for each violation. The incarceration of a person at the time of the violation is not a bar to prosecution under this section. Nothing in this subsection shall be construed to prohibit the imposition of any other penalties or disciplinary action otherwise allowed by law or policy.
SECTION 5. Section 97-3-101, Mississippi Code of 1972, is amended as follows:
97-3-101. (1) * * * The crime of attempted sexual assault is
committed when a person attempts to penetrate, no matter how slight, of the
vagina or anus with any body part or object, or attempt to orally penetrate the
sex organ of another person, without consent of the victim.
(2) * * * The provisions of this section
shall apply regardless of whether or not the perpetrator is married to the
victim.
* * *
SECTION 6. Section 9-25-1, Mississippi Code of 1972, is amended as follows:
9-25-1. (1) The Legislature recognizes that our military veterans have provided an invaluable service to our country. In doing so, many may have suffered the effects of, including, but not limited to, post-traumatic stress disorder, traumatic brain injury and depression, and may also suffer drug and alcohol dependency or addiction and co-occurring mental illness and substance abuse problems. As a result of this, some veterans come into contact with the criminal justice system and are charged with felony offenses. There is a critical need for the justice system to recognize these veterans, provide accountability for their wrongdoing, provide for the safety of the public, and provide for the treatment of our veterans. It is the intent of the Legislature to create a framework for which specialized veterans treatment courts may be established at the circuit court level and at the discretion of the circuit court judge.
(2) Authorization. A circuit court judge may establish a Veterans Treatment Court program. The Veterans Treatment Court may, at the discretion of the circuit court judge, be a separate court program or as a component of an existing drug court program. At the discretion of the circuit court judge, the Veterans Treatment Court may be operated in one (1) county within the circuit court district, and allow veteran participants from all counties within the circuit court district to participate.
(3) Eligibility. (a) In order to be eligible to participate in a Veterans Treatment Court program established under this section, the attorney representing the state must consent to the defendant's participation in the program. Further, the court in which the criminal case is pending must have found that the defendant is a veteran of the United States Armed Forces as defined in Title 38 USCS.
(b) Participation in the services of an alcohol and drug intervention component shall only be open to the individuals over whom the court has jurisdiction, except that the court may agree to provide the services for individuals referred from another Veterans Treatment Court. In cases transferred from another jurisdiction, the receiving judge shall act as a special master and make recommendations to the sentencing judge.
(c) (i) As a condition of participation in a Veterans Treatment Court, a participant may be required to undergo a chemical test or a series of chemical tests as specified by the Veterans Treatment Court program. A participant may be held liable for costs associated with all chemical tests required under this section. However, a judge may waive any fees for testing.
(ii) A laboratory that performs chemical tests under this section shall report the results of the tests to the Veterans Treatment Courts.
(d) A person does not have the right to participate in a Veterans Treatment Court program under this chapter. The court having jurisdiction over a person for a matter before the court shall have the final determination about whether the person may participate in the Veterans Treatment Court program.
(e) A defendant shall be excluded from participating in a Veterans Treatment Court program if any one (1) of the following applies:
(i) The crime before the court is a crime of violence as set forth in paragraph (c) of this subsection.
(ii) The defendant does not demonstrate a willingness to participate in a treatment program.
(iii) The defendant has been previously convicted of a felony crime of violence including, but not limited to: murder, rape, sexual battery, sexual assault, statutory rape of a child under the age of sixteen (16), armed robbery, arson, aggravated kidnapping, aggravated assault, stalking, or any offense involving the discharge of a firearm or where serious bodily injury or death resulted to any person.
(f) The court in which the criminal case is pending shall allow an eligible defendant to choose whether to proceed through the Veterans Treatment Court program or otherwise through the justice system.
(g) Proof of matters under this section may be submitted to the court in which the criminal case is pending in any form the court determines to be appropriate, including military service and medical records, previous determinations of a disability by a veteran's organization or by the United States Department of Veterans Affairs, testimony or affidavits of other veterans or service members, and prior determinations of eligibility for benefits by any state or county veterans office.
(4) Administrative Office of Courts. With regard to any Veterans Treatment Court established under this chapter, the Administrative Office of Courts may do the following:
(a) Ensure that the structure of the intervention component complies with rules adopted under this chapter and applicable federal regulations.
(b) Revoke the authorization of a program upon a determination that the program does not comply with rules adopted under this chapter and applicable federal regulations.
(c) Enter into agreements and contracts to effectuate the purposes of this chapter with:
(i) Another department, authority, or agency of the state;
(ii) Another state;
(iii) The federal government;
(iv) A state-supported or private university; or
(v) A public or private agency, foundation, corporation, or individual.
(d) Directly, or by contract, approve and certify any intervention component established under this chapter.
(e) Require, as a condition of operation, that each veterans court created or funded under this chapter be certified by the Administrative Office of Courts.
(f) Adopt rules to implement this chapter.
(5) State Drug Court Advisory Committee. (a) The State Drug Court Advisory Committee shall be responsible for developing statewide rules and policies as they relate to Veterans Treatment Court programs.
(b) The State Drug Court Advisory Committee may also make recommendations to the Chief Justice, the Director of the Administrative Office of Courts and state officials concerning improvements to Veterans Treatment Court policies and procedures.
(c) The State Drug Court Advisory Committee shall act as an arbiter of disputes arising out of the operation of Veterans Treatment Court programs established under this chapter and make recommendations to improve the Veterans Treatment Court programs.
(6) Funding for Veterans Treatment Courts. (a) All monies received from any source by the Veterans Treatment Court program shall be accumulated in a fund to be used only for Veterans Treatment Court purposes. Any funds remaining in this fund at the end of the fiscal year shall not lapse into the General Fund, but shall be retained in the Veterans Treatment Court fund for the funding of further activities by the Veterans Treatment Court program.
(b) A Veterans Treatment Court program may apply for and receive the following:
(i) Gifts, bequests and donations from private sources.
(ii) Grant and contract money from governmental sources.
(iii) Other forms of financial assistance approved by the court to supplement the budget of the Veterans Treatment Court program.
(7) Immunity. The coordinator and members of the professional and administrative staff of the Veterans Treatment Court program who perform duties in good faith under this chapter are immune from civil liability for:
(a) Acts or omissions in providing services under this chapter; and
(b) The reasonable exercise of discretion in determining eligibility to participate in the Veterans Treatment Court program.
* * *
SECTION 7. Section 13-1-401, Mississippi Code of 1972, is amended as follows:
13-1-401. The rules of evidence prescribed in Sections 13-1-401 through 13-1-415 shall be applicable in any youth court proceeding and in any criminal prosecution under the following sections of the Mississippi Code of 1972:
(a) Section 97-5-21, Mississippi Code of 1972, relating to seduction of a child under age eighteen (18);
(b) Section 97-5-23, Mississippi Code of 1972, relating to the touching of a child for lustful purposes;
(c) Section 97-5-35, Mississippi Code of 1972, relating to the exploitation of children;
(d) Section 97-5-39, Mississippi Code of 1972, relating to contributing to the neglect or delinquency of a child and felonious battery of a child;
(e) Section 97-5-41, Mississippi Code of 1972, relating to the carnal knowledge of a stepchild, adopted child or child of a cohabitating partner;
(f) Section 97-3-95,
Mississippi Code of 1972, relating to sexual battery; * * *
(g) Section 97-29-59,
Mississippi Code of 1972, relating to unnatural intercourse * * *; or
(h) Section 97-3-97, Mississippi Code of 1972, relating to sexual assault.
SECTION 8. Section 19-5-93, Mississippi Code of 1972, is amended as follows:
19-5-93. The board of supervisors of each county is authorized, in its discretion, to donate money for the objects and purposes following, to wit:
(a) Confederate graves. For the location, marking, care and maintenance of the grave or graves and graveyard of Confederate soldiers or sailors who died in the Confederate service, and the purchase, if necessary, of the land on which any of the said graveyards may be situated, and the erection and maintenance of appropriate monuments and appropriate inscriptions thereon. In the exercise of this power the board is fully authorized to accept donations of land on which any of said graveyards may be situated and also money or funds to be used for any of the purposes in this section expressed.
Any board of supervisors may, in its discretion, contribute money to be used for the upkeep of graves of the Confederate dead in its county.
(b) Care of the aged. For the support and maintenance of such residents of the county who are worthy, indigent aged inmates of the Old Ladies' Home of Jackson, Mississippi, or of the Golden Age Nursing Home and Hospital for North Mississippi of Greenwood, Mississippi, and not exceeding Five Hundred Dollars ($500.00) per annum for the support of the county's inmates of the Old Men's Home, located near Jackson, Mississippi, and in addition thereto a sum not exceeding Two Hundred Dollars ($200.00) per annum to each of said institutions for their support and maintenance in the care of the aged.
(c) King's Daughters. To the King's Daughters in their respective counties for charities under their supervision.
(d) Travelers Aid Society. A sum of money not exceeding Fifteen Dollars ($15.00) per month for the support of the organization known as the Travelers Aid Society, provided the same is nonsectarian.
(e) Hospitals for pellagra sufferers. For the establishment and maintenance of a hospital for the treatment of persons afflicted with pellagra. For this purpose the board may issue bonds and incur such indebtedness within the limits now authorized by law.
(f) Tubercular hospitals. For the establishment and maintenance of a hospital for the care and treatment of persons suffering from tuberculosis. In the execution of this power the board may select trustees to establish and operate said hospital. In counties having a population of more than forty thousand (40,000) people, as shown by the latest United States census, the board may set aside, appropriate and expend monies from the general fund for the purpose of aiding in the maintenance and support of hospitals maintained and operated in such county for the care and treatment of persons suffering from tuberculosis. The monies shall be expended by the board through such trustees, not less than three (3) and not more than five (5), to be elected by the board of supervisors annually. The trustees shall file reports with the board at least once every six (6) months showing in detail all expenditures made by them and the number of patients which have been for the preceding period aided or cared for by the institution, and the board may otherwise require a strict accounting of the administration of said funds.
(g) Same -- additional provisions. The boards of supervisors of one or more counties are hereby authorized and empowered, in their discretion, separately or jointly, to acquire by gift, purchase or lease, real estate, for tubercular hospital purposes, and to own, erect, build, establish, maintain, regulate and support a tubercular hospital and to remodel buildings on such property to be used for such hospital purposes.
In the event the boards of supervisors of two (2) or more counties agree to cooperate in establishing and maintaining such hospital, the board of supervisors of each of said counties shall adopt a resolution agreeing to the proportionate part each county will contribute to the establishment and maintaining of such hospital.
Each county operating under the provisions of this subsection is hereby authorized and empowered to set aside, appropriate and expend monies from the general fund for the purpose of erecting, maintaining and operating such hospital.
(h) Charity wards in hospitals. A sum of money not exceeding One Hundred Dollars ($100.00) per month to maintain a charity ward or wards in any hospital in their respective counties, or in the event there shall be no hospital in such county, then a like sum, in their discretion, to maintain a charity ward or wards in any hospital in any adjoining county receiving and treating patients from such county having no hospital.
(i) Same -- coast counties. The several counties of this state bordering on the tidewater of the Gulf of Mexico are hereby authorized and empowered, in the discretion of the proper authorities thereof, to appropriate such a sum of money as said authorities shall deem reasonable, to provide and maintain a charity ward or wards, in any of the hospitals in said counties, or, in the discretion of said authorities, to make and enter into contracts with any such hospitals for the treatment and care in such hospitals of the indigent sick of said counties, and to pay therefor out of the general fund of such counties such sum or sums as shall be a reasonable and just compensation to said hospital. However, the board of supervisors of any county mentioned herein may, in its discretion, make and enter into contracts with any hospital in any adjoining county receiving and treating patients from the respective counties mentioned herein in such hospitals of the indigent sick of said counties, mentioned herein, and to pay therefor out of the general fund of such county, such sum or sums that shall be reasonable and just to said hospitals.
(j) Public libraries. A sum not to exceed One Thousand Dollars ($1,000.00) per annum toward the support and maintenance of one or more public libraries situated in the county. In any county whose total assessed valuation, including railroads and all public utilities, is more than Eighteen Million Dollars ($18,000,000.00) the board, in its discretion, may appropriate a sum not to exceed Three Thousand Dollars ($3,000.00) per annum for public libraries.
The board may also give or donate any legislative journals, constitutional convention journals, printed official reports of any state or county officers, official reports of departments, bureaus or officers of the United States, and copies of the acts of the Legislature or laws of Mississippi now or hereafter in the county library of such county and not needed, in the opinion of the board in the county library (but not including any Mississippi reports and not including any acts of the Legislature or laws of the state, unless such acts or laws be more than twenty (20) years old) to any library or library association or foundation or organization maintaining a free public library for reference or otherwise, provided such library, association, foundation or organization owns free from encumbrance a fireproof library building located in this state, in which building said journals, reports, acts and laws may be and shall be deposited where received under this subsection and made accessible under reasonable regulations to the general public. Such library, association, foundation or organization shall not have the right to sell or otherwise dispose of said journals, reports, acts and laws. Said journals, reports, acts and laws may be returned to the county library from which received without expense to the county, or to the state library, without expense to the state, at any time by the library, association, foundation or organization receiving the same.
Any gift or donation made by the board of supervisors of any county under the authority of this subsection shall be evidenced by an order spread upon the minutes of said board. The county shall bear no expense in connection with any donation. The sheriff of the county, or the custodian of the county library, shall deliver to the representative of the library, association, foundation or organization entitled to receive the same any of said journals, reports, acts, laws and official publications in accordance with the directions contained in any order of the board of supervisors for the delivery of the same, and shall take proper receipt from the party receiving the same, and shall deliver such receipt to the clerk of the board of supervisors of the county, and the board of supervisors shall have the said receipt entered in full on the minutes of the board.
Any library, association, foundation or organization receiving any gift or donation from any county under this subsection shall report in writing to the board of supervisors, from which such gifts or donations have been received every two (2) years, that the gifts and donations so received are still in the possession of the donee and are accessible to the general public. If any of the gifts or donations so received have been lost, destroyed or have otherwise disappeared, report thereof shall be made.
If any library, association, foundation or organization receiving gifts or donations under this subsection shall cease operating as a free public library or shall cease to be the owner of a fireproof building in which it keeps and maintains a free public library, for reference or otherwise, the said library, association, foundation or organization shall thereupon immediately return to the county library, without expense to the county, or to the state library, without expense to the state, any gifts or donations it may have received under this subsection.
(k) Patriotic organizations and memorials. A sum not to exceed Five Thousand Dollars ($5,000.00) to build or aid any post of the American Legion, any chapter of the Daughters of the American Revolution, any chapter of the United Daughters of the Confederacy, or any post, unit or chapter of any patriotic organization within the county in building a memorial to the veterans of World War I and World War II; and a sum not to exceed Five Thousand Dollars ($5,000.00) to aid in defraying the cost of the erection of suitable memorials to deceased soldiers, sailors and marines of the late world wars. Such appropriation may be made, even though no provision has been made therefor in the county budget.
(l) American Red Cross. Any board of supervisors of any county in this state is hereby authorized and empowered, in its discretion, to donate annually, out of any monies in its respective treasury, to be drawn by warrant thereon, a sum not exceeding One Hundred Dollars ($100.00) per million of assessed valuation to the support of a local chapter of the American Red Cross.
(m) St. Jude Hospital. For the payment of mileage expense for transporting persons to St. Jude Hospital in Memphis, Tennessee, for treatment. The mileage shall be based on a round-trip basis from the patient's place of residence to St. Jude Hospital at the mileage rate set forth in Section 25-3-41.
(n) Public museums. For the support and maintenance of such public museums located in the county constituted under the provisions of Chapter 9, Title 39, Mississippi Code of 1972.
(o) Domestic
violence shelters. The board of supervisors of any county in this state is
hereby authorized and empowered, in its discretion, to donate annually out of
any money in the county treasury, such sums as the board deems advisable to
support any domestic violence shelter or rape crisis center operating within or
serving its area. For the purposes of this section, "rape crisis
center" means a place established to provide care, counseling and related
services to victims of rape, attempted rape, sexual battery * * *, attempted sexual battery, sexual
assault or attempted sexual assault.
(p) Literacy programs. The board of supervisors of any county in this state is hereby authorized and empowered, in its discretion, to donate out of the general fund of the county such sum of money as the board deems reasonable to any literacy program being conducted within the county.
(q) Care of neglected children. The board of supervisors of any county in this state, in its discretion, may donate annually out of any money in the county treasury such sums as the board deems advisable to support any residential group home for the abused, abandoned or neglected children which operates within or serves the county. For the purposes of this paragraph the term "residential group home" means a group residence established to provide care and counseling, and to serve as a home, for children who are the victims of abuse, neglect or abandonment.
(r) Boys and Girls Club. To any chartered chapter of the Boys and Girls Clubs of America located within the county, out of any funds in the county treasury, provided that the cumulative sum of donations to all chapters within the county does not exceed the amount generated in the county by one-fourth (1/4) mill on all of the taxable property within the county, during the fiscal year in which the donations are made. Nothing in this paragraph authorizes the imposition of additional tax.
(s) Mississippi Burn Care Fund. To the Mississippi Burn Care Fund, subject to the limitations specified in Section 21-19-58.
(t) Court Appointed Special Advocates. To any chapter of the Court Appointed Special Advocates (CASA), out of any funds in the county treasury, provided that the cumulative sum of donations to a chapter does not exceed the amount generated in the county by one-fourth (1/4) mill on all of the taxable property within the county, during the fiscal year in which the donations are made. Nothing in this paragraph authorizes the imposition of additional tax.
(u) National Voluntary Organizations Active in Disaster (NVOAD). To a local chapter of NVOAD, whether in-kind contributions or out of any funds in the county treasury, provided that the cumulative sum of donations to a local NVOAD does not exceed the amount generated in the county by one-fourth (1/4) mill on all of the taxable property within the county during the fiscal year in which the donations are made. Nothing in this paragraph authorizes the imposition of additional tax.
(v) Farmers' markets. The board of supervisors of any county in this state, in its discretion, may donate annually out of any money in the county treasury, such sums as the board deems advisable to support any farmers' market that is certified by the Mississippi Department of Agriculture and Commerce and operating within the county, not to exceed the amount that would be generated from the levy of a one-fourth (1/4) mill ad valorem tax upon all taxable property in the county.
(w) Young Men's Christian Association (YMCA). To any chartered chapter of the YMCA located within the county, out of any funds in the county treasury, provided that the cumulative sum of donations to all chapters within the county does not exceed the amount generated in the county by one-fourth (1/4) mill on all of the taxable property within the county, during the fiscal year in which the donations are made. Nothing in this paragraph authorizes the imposition of additional tax.
SECTION 9. Section 37-3-51, Mississippi Code of 1972, is amended as follows:
37-3-51. (1) Upon the conviction of any licensed personnel, as defined in Section 37-9-1, employed by a public school district or any person employed by a charter or private elementary or secondary school in a position that requires licensure in the public school districts, of any felony, or of a sex offense as defined in subsection (2) of this section, the district attorney or other prosecuting attorney shall identify those defendants for the circuit clerk. Each circuit clerk shall provide the State Department of Education with notice of the conviction of any such personnel of a felony or a sex offense. In addition, if the convicted person is an employee of a charter school, the circuit clerk must provide the same notice to the Mississippi Charter School Authorizer Board.
(2) "Sex offense" shall mean any of the following offenses:
(a) Section 97-3-65, Mississippi Code of 1972, relating to the carnal knowledge of a child under fourteen (14) years of age;
(b) Section 97-3-95, Mississippi Code of 1972, relating to sexual battery;
(c) Section 97-5-21, Mississippi Code of 1972, relating to seduction of a child under age eighteen (18);
(d) Section 97-5-23, Mississippi Code of 1972, relating to the touching of a child for lustful purposes;
(e) Section 97-5-27, Mississippi Code of 1972, relating to the dissemination of sexually oriented material to children;
(f) Section 97-5-33, Mississippi Code of 1972, relating to the exploitation of children;
(g) Section 97-5-41, Mississippi Code of 1972, relating to the carnal knowledge of a stepchild, adopted child, or child of a cohabitating partner;
(h) Section 97-29-59,
Mississippi Code of 1972, relating to unnatural intercourse; * * *
(i) Section 97-3-97, Mississippi Code of 1972, relating to sexual assault; or
( * * *j) Any other offense committed in
another jurisdiction which, if committed in this state, would be deemed to be
such a crime without regard to its designation elsewhere.
(3) In addition, the State Department of Education is considered to be the employer of such personnel for purposes of requesting criminal record background checks.
SECTION 10. Section 37-9-17, Mississippi Code of 1972, is amended as follows:
37-9-17. (1) On or before April 1 of each year, the principal of each school shall recommend to the superintendent of the local school district the licensed employees or noninstructional employees to be employed for the school involved except those licensed employees or noninstructional employees who have been previously employed and who have a contract valid for the ensuing scholastic year. If such recommendations meet with the approval of the superintendent, the superintendent shall recommend the employment of such licensed employees or noninstructional employees to the local school board, and, unless good reason to the contrary exists, the board shall elect the employees so recommended. If, for any reason, the local school board shall decline to elect any employee so recommended, additional recommendations for the places to be filled shall be made by the principal to the superintendent and then by the superintendent to the local school board as provided above. The school board of any local school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to recommend to the superintendent licensed employees or noninstructional employees; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the local school district. Any noninstructional employee employed upon the recommendation of a personnel supervisor or another principal employed by the local school district must have been employed by the local school district at the time the superintendent was elected or appointed to office; a noninstructional employee employed under this authorization may not be paid compensation in excess of the statewide average compensation for such noninstructional position with comparable experience, as established by the State Department of Education. The school board of any local school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to accept the recommendations of principals or their designees for licensed employees or noninstructional employees and to transmit approved recommendations to the local school board; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the local school district.
When the licensed employees have been elected as provided in the preceding paragraph, the superintendent of the district shall enter into a contract with such persons in the manner provided in this chapter.
If, at the commencement of the scholastic year, any licensed employee shall present to the superintendent a license of a higher grade than that specified in such individual's contract, such individual may, if funds are available from adequate education program funds of the district, or from district funds, be paid from such funds the amount to which such higher grade license would have entitled the individual, had the license been held at the time the contract was executed.
(2) Superintendents/directors of schools under the purview of the State Board of Education, the superintendent of the local school district and any private firm under contract with the local public school district to provide substitute teachers to teach during the absence of a regularly employed schoolteacher shall require, through the appropriate governmental authority, that current criminal records background checks and current child abuse registry checks are obtained, and that such criminal record information and registry checks are on file for any new hires applying for employment as a licensed or nonlicensed employee at a school and not previously employed in such school under the purview of the State Board of Education or at such local school district prior to July 1, 2000. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. The fee for such fingerprinting and criminal history record check shall be paid by the applicant, not to exceed Fifty Dollars ($50.00); however, the State Board of Education, the school board of the local school district or a private firm under contract with a local school district to provide substitute teachers to teach during the temporary absence of the regularly employed schoolteacher, in its discretion, may elect to pay the fee for the fingerprinting and criminal history record check on behalf of any applicant. Under no circumstances shall a member of the State Board of Education, superintendent/director of schools under the purview of the State Board of Education, local school district superintendent, local school board member or any individual other than the subject of the criminal history record checks disseminate information received through any such checks except insofar as required to fulfill the purposes of this section. Any nonpublic school which is accredited or approved by the State Board of Education may avail itself of the procedures provided for herein and shall be responsible for the same fee charged in the case of local public schools of this state. The determination whether the applicant has a disqualifying crime, as set forth in subsection (3) of this section, shall be made by the appropriate governmental authority, and the appropriate governmental authority shall notify the private firm whether a disqualifying crime exists.
(3) If such fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the new hire shall not be eligible to be employed at such school. Any employment contract for a new hire executed by the superintendent of the local school district or any employment of a new hire by a superintendent/director of a new school under the purview of the State Board of Education or by a private firm shall be voidable if the new hire receives a disqualifying criminal record check. However, the State Board of Education or the school board may, in its discretion, allow any applicant aggrieved by the employment decision under this section to appear before the respective board, or before a hearing officer designated for such purpose, to show mitigating circumstances which may exist and allow the new hire to be employed at the school. The State Board of Education or local school board may grant waivers for such mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; (f) other evidence demonstrating the ability of the person to perform the employment responsibilities competently and that the person does not pose a threat to the health or safety of the children at the school.
(4) No local school district, local school district employee, member of the State Board of Education or employee of a school under the purview of the State Board of Education shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this Section 37-9-17.
SECTION 11. Section 37-11-29, Mississippi Code of 1972, is amended as follows:
37-11-29. (1) Any principal, teacher or other school employee who has knowledge of any unlawful activity which occurred on educational property or during a school related activity or which may have occurred shall report such activity to the superintendent of the school district or his designee who shall notify the appropriate law enforcement officials as required by this section. In the event of an emergency or if the superintendent or his designee is unavailable, any principal may make a report required under this subsection.
(2) Whenever any person who shall be an enrolled student in any school or educational institution in this state supported in whole or in part by public funds, or who shall be an enrolled student in any private school or educational institution, is arrested for, and lawfully charged with, the commission of any crime and convicted upon the charge for which he was arrested, or convicted of any crime charged against him after his arrest and before trial, the office or law enforcement department of which the arresting officer is a member, and the justice court judge and any circuit judge or court before whom such student is tried upon said charge or charges, shall make or cause to be made a report thereof to the superintendent or the president or chancellor, as the case may be, of the school district or other educational institution in which such student is enrolled.
If the charge upon which such student was arrested, or any other charges preferred against him are dismissed or nol prossed, or if upon trial he is either convicted or acquitted of such charge or charges, same shall be reported to said respective superintendent or president, or chancellor, as the case may be. A copy of said report shall be sent to the Secretary of the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, at Jackson, Mississippi.
Said report shall be made within one (1) week after the arrest of such student and within one (1) week after any charge placed against him is dismissed or nol prossed, and within one (1) week after he shall have pled guilty, been convicted, or have been acquitted by trial upon any charge placed against him. This section shall not apply to ordinary traffic violations involving a penalty of less than Fifty Dollars ($50.00) and costs.
The State Superintendent of Public Education shall gather annually all of the reports provided under this section and prepare a report on the number of students arrested as a result of any unlawful activity which occurred on educational property or during a school related activity. All data must be disaggregated by race, ethnicity, gender, school, offense and law enforcement agency involved. However, the report prepared by the State Superintendent of Public Education shall not include the identity of any student who was arrested.
On or before January 1 of each year, the State Superintendent of Public Education shall report to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives and the Joint PEER Committee on this section. The report must include data regarding arrests as a result of any unlawful activity which occurred on educational property or during a school related activity.
(3) When the superintendent or his designee has a reasonable belief that an act has occurred on educational property or during a school related activity involving any of the offenses set forth in subsection (6) of this section, the superintendent or his designee shall immediately report the act to the appropriate local law enforcement agency. For purposes of this subsection, "school property" shall include any public school building, bus, public school campus, grounds, recreational area or athletic field in the charge of the superintendent. The State Board of Education shall prescribe a form for making reports required under this subsection. Any superintendent or his designee who fails to make a report required by this section shall be subject to the penalties provided in Section 37-11-35.
(4) The law enforcement authority shall immediately dispatch an officer to the educational institution and with probable cause the officer is authorized to make an arrest if necessary as provided in Section 99-3-7.
(5) Any superintendent, principal, teacher or other school personnel participating in the making of a required report pursuant to this section or participating in any judicial proceeding resulting therefrom shall be presumed to be acting in good faith. Any person reporting in good faith shall be immune from any civil liability that might otherwise be incurred or imposed.
(6) For purposes of this section, "unlawful activity" means any of the following:
(a) Possession or use of a deadly weapon, as defined in Section 97-37-1;
(b) Possession, sale or use of any controlled substance;
(c) Aggravated assault, as defined in Section 97-3-7;
(d) Simple assault, as defined in Section 97-3-7, upon any school employee;
(e) Rape, as defined under Mississippi law;
(f) Sexual battery, as defined under Mississippi law;
(g) Sexual assault, as defined under Mississippi law;
( * * *h) Murder, as defined under
Mississippi law;
( * * *i) Kidnapping, as defined under
Mississippi law; or
( * * *j) Fondling, touching, handling, etc.,
a child for lustful purposes, as defined in Section 97-5-23.
SECTION 12. Section 37-13-89, Mississippi Code of 1972, is amended as follows:
37-13-89. (1) In each school district within the state, there shall be employed the number of school attendance officers determined by the Office of Compulsory School Attendance Enforcement to be necessary to adequately enforce the provisions of the Mississippi Compulsory School Attendance Law; however, this number shall not exceed one hundred fifty-three (153) school attendance officers at any time. From and after July 1, 1998, all school attendance officers employed pursuant to this section shall be employees of the State Department of Education. The State Department of Education shall employ all persons employed as school attendance officers by district attorneys before July 1, 1998, and shall assign them to school attendance responsibilities in the school district in which they were employed before July 1, 1998. The first twelve (12) months of employment for each school attendance officer shall be the probationary period of state service.
(2) (a) The State Department of Education shall obtain current criminal records background checks and current child abuse registry checks on all persons applying for the position of school attendance officer after July 2, 2002. The criminal records information and registry checks must be kept on file for any new hires. In order to determine an applicant's suitability for employment as a school attendance officer, the applicant must be fingerprinted. If no disqualifying record is identified at the state level, the Department of Public Safety shall forward the fingerprints to the Federal Bureau of Investigation (FBI) for a national criminal history record check. The applicant shall pay the fee, not to exceed Fifty Dollars ($50.00), for the fingerprinting and criminal records background check; however, the State Department of Education, in its discretion, may pay the fee for the fingerprinting and criminal records background check on behalf of any applicant. Under no circumstances may a member of the State Board of Education, employee of the State Department of Education or any person other than the subject of the criminal records background check disseminate information received through any such checks except insofar as required to fulfill the purposes of this subsection.
(b) If the fingerprinting or criminal records check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the applicant is not eligible to be employed as a school attendance officer. Any employment of an applicant pending the results of the fingerprinting and criminal records check is voidable if the new hire receives a disqualifying criminal records check. However, the State Board of Education, in its discretion, may allow an applicant aggrieved by an employment decision under this subsection to appear before the board, or before a hearing officer designated for that purpose, to show mitigating circumstances that may exist and allow the new hire to be employed as a school attendance officer. The State Board of Education may grant waivers for mitigating circumstances, which may include, but are not necessarily limited to: (i) age at which the crime was committed; (ii) circumstances surrounding the crime; (iii) length of time since the conviction and criminal history since the conviction; (iv) work history; (v) current employment and character references; and (vi) other evidence demonstrating the ability of the person to perform the responsibilities of a school attendance officer competently and that the person does not pose a threat to the health or safety of children.
(c) A member of the State Board of Education or employee of the State Department of Education may not be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section.
(3) Each school attendance officer shall possess a college degree with a major in a behavioral science or a related field or shall have no less than three (3) years combined actual experience as a school teacher, school administrator, law enforcement officer possessing such degree, and/or social worker; however, these requirements shall not apply to persons employed as school attendance officers before January 1, 1987. School attendance officers also shall satisfy any additional requirements that may be established by the State Personnel Board for the position of school attendance officer.
(4) It shall be the duty of each school attendance officer to:
(a) Cooperate with any public agency to locate and identify all compulsory-school-age children who are not attending school;
(b) Cooperate with all courts of competent jurisdiction;
(c) Investigate all cases of nonattendance and unlawful absences by compulsory-school-age children not enrolled in a nonpublic school;
(d) Provide appropriate counseling to encourage all school-age children to attend school until they have completed high school;
(e) Attempt to secure the provision of social or welfare services that may be required to enable any child to attend school;
(f) Contact the home or place of residence of a compulsory-school-age child and any other place in which the officer is likely to find any compulsory-school-age child when the child is absent from school during school hours without a valid written excuse from school officials, and when the child is found, the officer shall notify the parents and school officials as to where the child was physically located;
(g) Contact promptly the home of each compulsory-school-age child in the school district within the officer's jurisdiction who is not enrolled in school or is not in attendance at public school and is without a valid written excuse from school officials; if no valid reason is found for the nonenrollment or absence from the school, the school attendance officer shall give written notice to the parent, guardian or custodian of the requirement for the child's enrollment or attendance;
(h) Collect and maintain information concerning absenteeism, dropouts and other attendance-related problems, as may be required by law or the Office of Compulsory School Attendance Enforcement; and
(i) Perform all other duties relating to compulsory school attendance established by the State Department of Education or district school attendance supervisor, or both.
(5) While engaged in the performance of his duties, each school attendance officer shall carry on his person a badge identifying him as a school attendance officer under the Office of Compulsory School Attendance Enforcement of the State Department of Education and an identification card designed by the State Superintendent of Public Education and issued by the school attendance officer supervisor. Neither the badge nor the identification card shall bear the name of any elected public official.
(6) The State Personnel Board shall develop a salary scale for school attendance officers as part of the variable compensation plan. The various pay ranges of the salary scale shall be based upon factors including, but not limited to, education, professional certification and licensure, and number of years of experience. School attendance officers shall be paid in accordance with this salary scale. The minimum salaries under the scale shall be no less than the following:
(a) For school attendance officers holding a bachelor's degree or any other attendance officer who does not hold such a degree, the annual salary shall be based on years of experience as a school attendance officer or related field of service or employment, no less than as follows:
Years of Experience Salary
0 - 4 years $19,650.00
5 - 8 years 21,550.00
9 - 12 years 23,070.00
13 - 16 years 24,590.00
Over 17 years 26,110.00
(b) For school attendance officers holding a license as a social worker, the annual salary shall be based on years of experience as a school attendance officer or related field of service or employment, no less than as follows:
Years of Experience Salary
0 - 4 years $20,650.00
5 - 8 years 22,950.00
9 - 12 years 24,790.00
13 - 16 years 26,630.00
17 - 20 years 28,470.00
Over 21 years 30,310.00
(c) For school attendance officers holding a master's degree in a behavioral science or a related field, the annual salary shall be based on years of experience as a school attendance officer or related field of service or employment, no less than as follows:
Years of Experience Salary
0 - 4 years $21,450.00
5 - 8 years 24,000.00
9 - 12 years 26,040.00
13 - 16 years 28,080.00
17 - 20 years 30,120.00
Over 21 years 32,160.00
(7) (a) Each school attendance officer employed by a district attorney on June 30, 1998, who became an employee of the State Department of Education on July 1, 1998, shall be awarded credit for personal leave and major medical leave for his continuous service as a school attendance officer under the district attorney, and if applicable, the youth or family court or a state agency. The credit for personal leave shall be in an amount equal to one-third (1/3) of the maximum personal leave the school attendance officer could have accumulated had he been credited with such leave under Section 25-3-93 during his employment with the district attorney, and if applicable, the youth or family court or a state agency. The credit for major medical leave shall be in an amount equal to one-half (1/2) of the maximum major medical leave the school attendance officer could have accumulated had he been credited with such leave under Section 25-3-95 during his employment with the district attorney, and if applicable, the youth or family court or a state agency. However, if a district attorney who employed a school attendance officer on June 30, 1998, certifies, in writing, to the State Department of Education that the school attendance officer had accumulated, pursuant to a personal leave policy or major medical leave policy lawfully adopted by the district attorney, a number of days of unused personal leave or major medical leave, or both, which is greater than the number of days to which the school attendance officer is entitled under this paragraph, the State Department of Education shall authorize the school attendance officer to retain the actual unused personal leave or major medical leave, or both, certified by the district attorney, subject to the maximum amount of personal leave and major medical leave the school attendance officer could have accumulated had he been credited with such leave under Sections 25-3-93 and 25-3-95.
(b) For the purpose of determining the accrual rate for personal leave under Section 25-3-93 and major medical leave under Section 25-3-95, the State Department of Education shall give consideration to all continuous service rendered by a school attendance officer before July 1, 1998, in addition to the service rendered by the school attendance officer as an employee of the department.
(c) In order for a school attendance officer to be awarded credit for personal leave and major medical leave or to retain the actual unused personal leave and major medical leave accumulated by him before July 1, 1998, the district attorney who employed the school attendance officer must certify, in writing, to the State Department of Education the hire date of the school attendance officer. For each school attendance officer employed by the youth or family court or a state agency before being designated an employee of the district attorney who has not had a break in continuous service, the hire date shall be the date that the school attendance officer was hired by the youth or family court or state agency. The department shall prescribe the date by which the certification must be received by the department and shall provide written notice to all district attorneys of the certification requirement and the date by which the certification must be received.
(8) (a) School attendance officers shall maintain regular office hours on a year-round basis; however, during the school term, on those days that teachers in all of the school districts served by a school attendance officer are not required to report to work, the school attendance officer also shall not be required to report to work. (For purposes of this subsection, a school district's school term is that period of time identified as the school term in contracts entered into by the district with licensed personnel.) A school attendance officer shall be required to report to work on any day recognized as an official state holiday if teachers in any school district served by that school attendance officer are required to report to work on that day, regardless of the school attendance officer's status as an employee of the State Department of Education, and compensatory leave may not be awarded to the school attendance officer for working during that day. However, a school attendance officer may be allowed by the school attendance officer's supervisor to use earned leave on such days.
(b) The State Department of Education annually shall designate a period of six (6) consecutive weeks in the summer between school years during which school attendance officers shall not be required to report to work. A school attendance officer who elects to work at any time during that period may not be awarded compensatory leave for such work and may not opt to be absent from work at any time other than during the six (6) weeks designated by the department unless the school attendance officer uses personal leave or major medical leave accrued under Section 25-3-93 or 25-3-95 for such absence.
(9) The State Department of Education shall provide all continuing education and training courses that school attendance officers are required to complete under state law or rules and regulations of the department.
SECTION 13. Section 37-28-49, Mississippi Code of 1972, is amended as follows:
37-28-49. (1) Charter school teachers and other school personnel, as well as members of the governing board and any education service provider with whom a charter school contracts, are subject to criminal history record checks and fingerprinting requirements applicable to employees of other public schools. The authorizer shall require that current criminal records background checks and current child abuse registry checks are obtained, and that the criminal record information and registry checks are on file at the charter school for any new hires applying for employment. In order to determine an applicant's suitability for employment, the applicant must be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints must be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. Under no circumstances may a member of the Mississippi Charter School Authorizer Board, member of the charter school governing board or any individual other than the subject of the criminal history record checks disseminate information received through the checks except as may be required to fulfill the purposes of this section. The determination whether the applicant has a disqualifying crime, as set forth in subsection (2) of this section, must be made by the appropriate state or federal governmental authority, which must notify the charter school whether a disqualifying crime exists.
(2) If the fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the new hire is not eligible to be employed at the charter school. However, the charter school, in its discretion, may allow any applicant aggrieved by the employment decision under this section to show mitigating circumstances that exist and may allow, subject to the approval of the Mississippi Charter School Authorizer Board, the new hire to be employed at the school. The authorizer may approve the employment depending on the mitigating circumstances, which may include, but need not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; and (f) other evidence demonstrating the ability of the person to perform the employment responsibilities competently and that the person does not pose a threat to the health or safety of children.
(3) No charter school, charter school employee, member of the charter school governing board, the Mississippi Charter School Authorizer Board or member or employee of the Mississippi Charter School Authorizer Board employee may be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section.
(4) A charter school shall terminate any teacher or administrator for committing one or more of the following acts:
(a) Engaging in unethical conduct relating to an educator-student relationship as identified by the Mississippi Charter School Authorizer Board;
(b) Fondling a student as described in Section 97-5-23 or engaging in any type of sexual involvement with a student as described in Section 97-3-95; or
(c) Failure to report sexual involvement of a charter school employee with a student as required by Section 97-5-24.
SECTION 14. Section 37-29-232, Mississippi Code of 1972, is amended as follows:
37-29-232. (1) For the purposes of this section:
(a) "Health care professional/vocational technical academic program" means an academic program in medicine, nursing, dentistry, occupational therapy, physical therapy, social services, nutrition services, speech therapy, or other allied-health professional whose purpose is to prepare professionals to render patient care services.
(b) "Health care professional/vocational technical student" means a student enrolled in a health care professional/vocational technical academic program.
(2) The dean or director of the health care professional/vocational technical academic program is authorized to ensure that criminal history record checks and fingerprinting are obtained on their students before the students begin any clinical rotation in a licensed health care entity and that the criminal history record check information and registry checks are on file at the academic institution. In order to determine the student's suitability for the clinical rotation, the student shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety, the Department of Health, or any other legally authorized entity to the FBI for a national criminal history record check. The fee for the fingerprinting and criminal history record check shall be paid by the applicant, not to exceed Fifty Dollars ($50.00); however, the academic institution in which the student is enrolled, in its discretion, may elect to pay the fee for the fingerprinting and criminal history record check on behalf of any applicant. Under no circumstances shall the academic institution representative or any individual other than the subject of the criminal history record checks disseminate information received through any such checks except insofar as required to fulfill the purposes of this section.
(3) If the fingerprinting or criminal history record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the student shall not be eligible to be admitted to the health care professional/vocational technical academic program of study. Any preadmission agreement executed by the health care professional/vocational technical academic program shall be voidable if the student receives a disqualifying criminal history record check. However, the administration of the health care professional/vocational technical academic program may, in its discretion, allow any applicant aggrieved by the admissions decision under this section to appear before an appeals committee or before a hearing officer designated for that purpose, to show mitigating circumstances that may exist and allow the student to be admitted to or continue in the program of study. The health care professional/vocational technical academic program may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; (f) other evidence demonstrating the ability of the student to perform the clinical responsibilities competently and that the student does not pose a threat to the health or safety of patients in the licensed health care entities in which they will be conducting clinical experiences. The health care professional/vocational technical academic program shall provide assurance to the licensed health care entity in which the clinical rotation is planned that the results of a health care professional/vocational technical student's criminal history record check would not prohibit the student from being able to conduct his or her clinical activities in the facility, institution, or organization. The criminal history record check shall be valid for the course of academic study, provided that annual disclosure statements are provided to the health care professional/vocational technical academic program regarding any criminal activity that may have occurred during the student's tenure with the health care professional/vocational technical academic program. The criminal history record check may be repeated at the discretion of the health care professional/vocational technical academic program based on information obtained during the annual disclosure statements. In extenuating circumstances, if a criminal history record check is initiated and the results are not available at the time the clinical rotation begins, the academic institution in which the student is enrolled, at its discretion, may require a signed affidavit from the student assuring compliance with this section. The affidavit will be considered void within sixty (60) days of its signature.
(4) Criminal history record checks that are done as part of the requirements for participation in the health care professional/vocational technical academic program may not be used for any other purpose than those activities associated with their program of study. Students who may be employed as health care professionals outside of their program of study may be required to obtain additional criminal history record checks as part of their employment agreement.
(5) No health care professional/vocational technical academic program or academic program employee shall be held liable in any admissions discrimination suit in which an allegation of discrimination is made regarding an admissions decision authorized under this section.
SECTION 15. Section 37-115-41, Mississippi Code of 1972, is amended as follows:
37-115-41. (1) For the purposes of this section:
(a) "Applicant" means any person who is applying to become an employee of UMMC.
(b) "Employee" means an employee, contractor, temporary worker or consultant.
(c) "UMMC" means the University of Mississippi Medical Center.
(2) The University of Mississippi Medical Center shall fingerprint and perform a criminal history record check on all new employees that work in or provide direct patient care. In addition, UMMC shall perform a disciplinary check with the professional licensing agency of the employee, if any, to determine if any disciplinary action has been taken against the employee by that agency. Except as otherwise provided in this section, no employee of UMMC hired on or after July 1, 2004, shall be permitted to provide direct patient care until the results of the criminal history record check have revealed no disqualifying record or the employee has been granted a waiver. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. Fingerprints shall be submitted to the Department of Public Safety by UMMC via scanning or other electronic method, with the results processed through the Department of Public Safety's Criminal Information Center. If no disqualifying record is identified at the state level, the applicant's fingerprints shall be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. If the criminal history record check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the applicant shall not be eligible to be employed at UMMC.
(3) Notwithstanding the provisions of subsection (2) of this section, any such applicant may be employed on a temporary basis pending the results of the criminal history record check. Any employment contract with an applicant during the application process shall be voidable upon receipt of a disqualifying criminal history record check if no waiver is granted under subsection (4) of this section.
(4) UMMC may, in its discretion, allow any applicant aggrieved by an employment decision under this section to appear before the UMMC hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the applicant to be employed at UMMC. UMMC, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; and (f) other evidence demonstrating the ability of the individual to perform the employment responsibilities competently and that the individual does not pose a threat to the health or safety of the patients admitted to UMMC.
(5) Upon the receipt of an applicant's criminal history record check that reveals no disqualifying event, UMMC shall, within two (2) weeks of the notification of no disqualifying event, provide the applicant with a notarized letter signed by the vice chancellor, or his or her authorized designee, confirming the applicant's suitability for employment based on his or her criminal history record check. An applicant or employee may use that letter for a period of two (2) years from the date of the letter to seek employment at any covered entity, as defined in Section 43-11-13(5), without the necessity of an additional criminal history record check under Section 43-11-13(5). Any covered entity presented with the letter may rely on the letter for a period of two (2) years from the date of the letter without having to conduct or have conducted a criminal history record check on the applicant or employee.
(6) UMMC may charge a fee not to exceed Fifty Dollars ($50.00) for fingerprinting applicants, students, employees, contractors, consultants, outside agency personnel, visiting faculty, researchers or any other individual(s) that may provide direct services to UMMC.
(7) UMMC and its agents, officers, employees, attorneys and representatives shall be presumed to be acting in good faith for any employment decision or action taken under this section. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. UMMC or its agents, officers, employees, attorneys and representatives shall not be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply in good faith with the requirements of this section.
SECTION 16. Section 43-11-13, Mississippi Code of 1972, is amended as follows:
43-11-13. (1) The licensing agency shall adopt, amend, promulgate and enforce such rules, regulations and standards, including classifications, with respect to all institutions for the aged or infirm to be licensed under this chapter as may be designed to further the accomplishment of the purpose of this chapter in promoting adequate care of individuals in those institutions in the interest of public health, safety and welfare. Those rules, regulations and standards shall be adopted and promulgated by the licensing agency and shall be recorded and indexed in a book to be maintained by the licensing agency in its main office in the State of Mississippi, entitled "Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm" and the book shall be open and available to all institutions for the aged or infirm and the public generally at all reasonable times. Upon the adoption of those rules, regulations and standards, the licensing agency shall mail copies thereof to all those institutions in the state that have filed with the agency their names and addresses for this purpose, but the failure to mail the same or the failure of the institutions to receive the same shall in no way affect the validity thereof. The rules, regulations and standards may be amended by the licensing agency, from time to time, as necessary to promote the health, safety and welfare of persons living in those institutions.
(2) The licensee shall keep posted in a conspicuous place on the licensed premises all current rules, regulations and minimum standards applicable to fire protection measures as adopted by the licensing agency. The licensee shall furnish to the licensing agency at least once each six (6) months a certificate of approval and inspection by state or local fire authorities. Failure to comply with state laws and/or municipal ordinances and current rules, regulations and minimum standards as adopted by the licensing agency, relative to fire prevention measures, shall be prima facie evidence for revocation of license.
(3) The State Board of Health shall promulgate rules and regulations restricting the storage, quantity and classes of drugs allowed in personal care homes and adult foster care facilities. Residents requiring administration of Schedule II Narcotics as defined in the Uniform Controlled Substances Law may be admitted to a personal care home. Schedule drugs may only be allowed in a personal care home if they are administered or stored utilizing proper procedures under the direct supervision of a licensed physician or nurse.
(4) (a) Notwithstanding any determination by the licensing agency that skilled nursing services would be appropriate for a resident of a personal care home, that resident, the resident's guardian or the legally recognized responsible party for the resident may consent in writing for the resident to continue to reside in the personal care home, if approved in writing by a licensed physician. However, no personal care home shall allow more than two (2) residents, or ten percent (10%) of the total number of residents in the facility, whichever is greater, to remain in the personal care home under the provisions of this subsection (4). This consent shall be deemed to be appropriately informed consent as described in the regulations promulgated by the licensing agency. After that written consent has been obtained, the resident shall have the right to continue to reside in the personal care home for as long as the resident meets the other conditions for residing in the personal care home. A copy of the written consent and the physician's approval shall be forwarded by the personal care home to the licensing agency.
(b) The State Board of Health shall promulgate rules and regulations restricting the handling of a resident's personal deposits by the director of a personal care home. Any funds given or provided for the purpose of supplying extra comforts, conveniences or services to any resident in any personal care home, and any funds otherwise received and held from, for or on behalf of any such resident, shall be deposited by the director or other proper officer of the personal care home to the credit of that resident in an account that shall be known as the Resident's Personal Deposit Fund. No more than one (1) month's charge for the care, support, maintenance and medical attention of the resident shall be applied from the account at any one time. After the death, discharge or transfer of any resident for whose benefit any such fund has been provided, any unexpended balance remaining in his personal deposit fund shall be applied for the payment of care, cost of support, maintenance and medical attention that is accrued. If any unexpended balance remains in that resident's personal deposit fund after complete reimbursement has been made for payment of care, support, maintenance and medical attention, and the director or other proper officer of the personal care home has been or shall be unable to locate the person or persons entitled to the unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of that death, discharge or transfer, deposit the unexpended balance to the credit of the personal care home's operating fund.
(c) The State Board of Health shall promulgate rules and regulations requiring personal care homes to maintain records relating to health condition, medicine dispensed and administered, and any reaction to that medicine. The director of the personal care home shall be responsible for explaining the availability of those records to the family of the resident at any time upon reasonable request.
(5) (a) For the purposes of this subsection (5):
(i) "Licensed entity" means a hospital, nursing home, personal care home, home health agency, hospice or adult foster care facility;
(ii) "Covered entity" means a licensed entity or a health care professional staffing agency;
(iii) "Employee" means any individual employed by a covered entity, and also includes any individual who by contract provides to the patients, residents or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's or client's room or in treatment or recovery rooms. The term "employee" does not include health care professional/vocational technical students performing clinical training in a licensed entity under contracts between their schools and the licensed entity, and does not include students at high schools located in Mississippi who observe the treatment and care of patients in a licensed entity as part of the requirements of an allied-health course taught in the high school, if:
1. The student is under the supervision of a licensed health care provider; and
2. The student has signed an affidavit that is on file at the student's school stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony listed in paragraph (d) of this subsection (5), or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. Before any student may sign such an affidavit, the student's school shall provide information to the student explaining what a felony is and the nature of the felonies listed in paragraph (d) of this subsection (5).
However, the health care professional/vocational technical academic program in which the student is enrolled may require the student to obtain criminal history record checks. In such incidences, paragraph (a)(iii)1 and 2 of this subsection (5) does not preclude the licensing entity from processing submitted fingerprints of students from healthcare-related professional/vocational technical programs who, as part of their program of study, conduct observations and provide clinical care and services in a covered entity.
(b) Under regulations promulgated by the State Board of Health, the licensing agency shall require to be performed a criminal history record check on (i) every new employee of a covered entity who provides direct patient care or services and who is employed on or after July 1, 2003, and (ii) every employee of a covered entity employed before July 1, 2003, who has a documented disciplinary action by his or her present employer. In addition, the licensing agency shall require the covered entity to perform a disciplinary check with the professional licensing agency of each employee, if any, to determine if any disciplinary action has been taken against the employee by that agency.
Except as otherwise provided in paragraph (c) of this subsection (5), no such employee hired on or after July 1, 2003, shall be permitted to provide direct patient care until the results of the criminal history record check have revealed no disqualifying record or the employee has been granted a waiver. In order to determine the employee applicant's suitability for employment, the applicant shall be fingerprinted. Fingerprints shall be submitted to the licensing agency from scanning, with the results processed through the Department of Public Safety's Criminal Information Center. The fingerprints shall then be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. The licensing agency shall notify the covered entity of the results of an employee applicant's criminal history record check. If the criminal history record check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sexual assault, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the employee applicant shall not be eligible to be employed by the covered entity.
(c) Any such new employee applicant may, however, be employed on a temporary basis pending the results of the criminal history record check, but any employment contract with the new employee shall be voidable if the new employee receives a disqualifying criminal history record check and no waiver is granted as provided in this subsection (5).
(d) Under regulations promulgated by the State Board of Health, the licensing agency shall require every employee of a covered entity employed before July 1, 2003, to sign an affidavit stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable adult, or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. No such employee of a covered entity hired before July 1, 2003, shall be permitted to provide direct patient care until the employee has signed the affidavit required by this paragraph (d). All such existing employees of covered entities must sign the affidavit required by this paragraph (d) within six (6) months of the final adoption of the regulations promulgated by the State Board of Health. If a person signs the affidavit required by this paragraph (d), and it is later determined that the person actually had been convicted of or pleaded guilty or nolo contendere to any of the offenses listed in this paragraph (d) and the conviction or plea has not been reversed on appeal or a pardon has not been granted for the conviction or plea, the person is guilty of perjury. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a violent offense, the person, upon a conviction of perjury under this paragraph, shall be punished as provided in Section 97-9-61. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a nonviolent offense, the person, upon a conviction of perjury under this paragraph, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
(e) The covered entity may, in its discretion, allow any employee who is unable to sign the affidavit required by paragraph (d) of this subsection (5) or any employee applicant aggrieved by an employment decision under this subsection (5) to appear before the covered entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed by the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (i) age at which the crime was committed; (ii) circumstances surrounding the crime; (iii) length of time since the conviction and criminal history since the conviction; (iv) work history; (v) current employment and character references; and (vi) other evidence demonstrating the ability of the individual to perform the employment responsibilities competently and that the individual does not pose a threat to the health or safety of the patients of the covered entity.
(f) The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00), which covered entity may, in its discretion, charge the same fee, or a portion thereof, to the employee applicant. Any increase in the fee charged by the licensing agency under this paragraph shall be in accordance with the provisions of Section 41-3-65. Any costs incurred by a covered entity implementing this subsection (5) shall be reimbursed as an allowable cost under Section 43-13-116.
(g) If the results of an employee applicant's criminal history record check reveals no disqualifying event, then the covered entity shall, within two (2) weeks of the notification of no disqualifying event, provide the employee applicant with a notarized letter signed by the chief executive officer of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two (2) years from the date of the letter to seek employment with any covered entity without the necessity of an additional criminal history record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two (2) years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection (5).
(h) The licensing agency, the covered entity, and their agents, officers, employees, attorneys and representatives, shall be presumed to be acting in good faith for any employment decision or action taken under this subsection (5). The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply with the requirements of this subsection (5).
(i) The licensing agency shall promulgate regulations to implement this subsection (5).
(j) The provisions of this subsection (5) shall not apply to:
(i) Applicants and employees of the University of Mississippi Medical Center for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-115-41; or
(ii) Health care professional/vocational technical students for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-29-232.
(6) The State Board of Health shall promulgate rules, regulations and standards regarding the operation of adult foster care facilities.
SECTION 17. Section 43-47-18, Mississippi Code of 1972, is amended as follows:
43-47-18. (1) (a) A
person who engages in sexual penetration with a vulnerable person is guilty of
sexual * * *
assault if the person is a volunteer at, or an employee of, or
contracted to work for, a health care facility in which the vulnerable person
is a patient or resident.
(b) A person who
engages in sexual penetration with a vulnerable person is guilty of sexual * * * assault if the person is in a
position of trust or authority over the vulnerable person, including, without
limitation, the vulnerable person's teacher, counselor, physician,
psychiatrist, psychologist, nurse, certified nursing assistant, direct care
worker, technical assistant, minister, priest, physical therapist,
chiropractor, legal guardian, parent, stepparent, other relative, caretaker or
conservator.
(c) Every person who
is convicted of sexual * * *
assault under this subsection (1) shall be imprisoned in the custody of
the State Department of Corrections for a period of not more than thirty (30)
years, and for a second or subsequent such offense shall be imprisoned in the
custody of the State Department of Corrections for a period of not more than
forty (40) years.
(2) (a) Any person who, for the purpose of gratifying the person's lust, or indulging the person's depraved licentious sexual desires, shall handle, touch or rub with hands or any part of the person's body or any member thereof, any vulnerable person, with or without the vulnerable person's consent, when the person is a volunteer at, or an employee of, or contracted to work for, a health care facility in which the vulnerable person is a patient or resident, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the Department of Corrections not less than two (2) nor more than fifteen (15) years, or be punished by both fine and imprisonment, at the discretion of the court.
(b) Any person who, for the purpose of gratifying the person's lust, or indulging the person's depraved licentious sexual desires, shall handle, touch or rub with hands or any part of the person's body or any member thereof, any vulnerable person, with or without the vulnerable person's consent, when the person occupies a position of trust or authority over the vulnerable person, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the Department of Corrections not less than two (2) nor more than fifteen (15) years, or be punished by both fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a vulnerable person includes, without limitation, the vulnerable person's teacher, counselor, physician, psychiatrist, psychologist, nurse, certified nursing assistant, direct care worker, technical assistant, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, other relative, caretaker or conservator.
(3) A person is not guilty
of any offense under this section if the alleged victim is that person's legal
spouse; however, the legal spouse of the alleged victim may be found guilty of
sexual * * *
assault if the legal spouse engaged in forcible sexual penetration
without the consent of the alleged victim.
SECTION 18. 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" means 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) "Department" means the Mississippi Department of Public Safety unless otherwise specified.
(c) "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.
(d) "Permanent residence" means a place where the person abides, lodges, or resides for a period of fourteen (14) or more consecutive days.
(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 Mississippi Forensics 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 the 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 the facility shall notify the Department of Public Safety before 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 * * *
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 97-29-3 relating to sexual intercourse between teacher and student;
(xi) Section 97-29-59 relating to unnatural intercourse;
(xii) Section 43-47-18 relating to sexual abuse of a vulnerable person;
(xiii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor and Section 97-3-54.3 relating to aiding, abetting or conspiring to violate Section 97-3-54.1(1)(c);
(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(1)(a) 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)(e) 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 97-29-51 relating to procuring or promoting prostitution when the victim is a child under eighteen (18) years of age;
(xx) Section 97-1-7 relating to attempt to commit any of the offenses referenced in this paragraph (h);
(xxi) 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;
(xxii) Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had;
(xxiii) Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this section;
(xxiv) Capital
murder when one (1) of the above-described offenses is the underlying crime * * *;
(xxv) Section 97-3-97 relating to sexual assault; however, conviction or adjudication under Section 97-3-97(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.
(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.
SECTION 19. 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 or who has been acquitted by reason of insanity 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;
(iv) Section 97-3-97 relating to sexual assault; or
( * * *v) 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. There is a presumption that a registrant owes a duty of updating registration information if:
(i) The registrant remains away from a registered address for seven (7) or more consecutive days; or
(ii) If the registrant remains at another address between the hours of 10:00 p.m. and 6:00 a.m. for more than seven (7) consecutive days;
(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 three thousand (3,000) 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 three thousand (3,000) 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 before July 1, 2006.
(iv) The school or child care facility is established within three thousand (3,000) feet of the person's residence subsequent to the date the person established residency.
(v) The person established the subject residence between July 1, 2006, and January 1, 2014, in a location at least one thousand five hundred (1,500) feet from the school or child care facility.
(vi) The person is a minor or a ward under a guardianship.
(c) A person residing within three thousand (3,000) 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 before July 1, 2008.
(ii) The residential child-caring agency, children's group care home, playground, ballpark or other recreational facility utilized by persons under the age of eighteen (18) years is established within three thousand (3,000) feet of the person's residence subsequent to the date the person established residency.
(iii) The person established the subject residence between July 1, 2008, and January 1, 2014, in a location at least one thousand five hundred (1,500) feet from the residential child-caring agency, children's group care home, playground, ballpark or other recreational facility utilized by persons under the age of eighteen (18) years.
(iv) Any of the conditions described in subsection (4)(b)(i), (ii) or (vi) 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.
SECTION 20. 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 required to register for a registrable sex offense 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) Tier One. (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. Section 97-29-61(2) relating to voyeurism when the victim is a child under sixteen (16) years of age;
3. Section 97-29-3 relating to misdemeanor sexual intercourse between teacher and student;
4. Section 97-29-45(1)(a) relating to obscene electronic communication;
5. Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier;
6. Any conviction for violation of a similar law of another jurisdiction of any offense listed in this tier;
7. Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had, although registration would not be otherwise required in this state.
(ii) Notwithstanding any other provision of this chapter, 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) Tier Two. (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 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;
6. Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier;
7. Any conviction for violation of a similar law of another jurisdiction of any offense listed in this tier; or
8. Any conviction of a Tier One offense if it is the offender's second or subsequent conviction of a registrable sex offense;
(ii) Notwithstanding any other provision of this chapter, 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. Tier Three requires lifetime registration, the registrant not being eligible to be relieved of the duty to register except as otherwise provided in this section, 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 97-5-5 relating to enticing a child for concealment, prostitution or marriage;
(vi) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(vii) Section 97-3-53 relating to kidnapping if the victim is under the age of eighteen (18);
(viii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(ix) Section 97-3-54.3 relating to aiding, abetting or conspiring to violate antihuman trafficking provisions;
(x) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(xi) Section 43-47-18 relating to sexual abuse of a vulnerable person 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) Section 97-3-97, relating to sexual assault;
( * * *xiv) Capital murder when one (1) of
the above-described offenses is the underlying crime;
( * * *xv) Any conviction for violation of
a similar law of another jurisdiction or designation as a sexual predator in
another jurisdiction;
( * * *xvi) Any conviction of conspiracy to
commit, accessory to commission, or attempt to commit any offense listed in
this tier; or
( * * *xvii) Any conviction of a Tier Two
offense if it is the offender's second or subsequent conviction of a
registrable sex offense.
(e) An offender who has two (2) separate convictions for any of the registrable offenses described 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 if 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 a registrable offense of rape pursuant to Section 96-3-65 or a registrable offense of sexual battery pursuant to Section 97-3-95 or a registrable offense of sexual assault pursuant to Section 97-3-97 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.
(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.
(5) A person required to register as a sex offender who is convicted under Section 45-33-33 of providing false registration information or of failure to register, reregister, update registration, or comply with electronic monitoring shall be subject to electronic monitoring at the expense of the offender under the program provided in Section 45-33-45. Termination of the duty to register also terminates the duty to be monitored.
SECTION 21. Section 93-15-121, Mississippi Code of 1972, is amended as follows:
93-15-121. Any of the following, if established by clear and convincing evidence, may be grounds for termination of the parent's parental rights if reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome:
(a) The parent has been medically diagnosed by a qualified mental health professional with a severe mental illness or deficiency that is unlikely to change in a reasonable period of time and which, based upon expert testimony or an established pattern of behavior, makes the parent unable or unwilling to provide an adequate permanent home for the child;
(b) The parent has been medically diagnosed by a qualified health professional with an extreme physical incapacitation that is unlikely to change in a reasonable period of time and which, based upon expert testimony or an established pattern of behavior, prevents the parent, despite reasonable accommodations, from providing minimally acceptable care for the child;
(c) The parent is suffering from habitual alcoholism or other drug addiction and has failed to successfully complete alcohol or drug treatment;
(d) The parent is unwilling to provide reasonably necessary food, clothing, shelter, or medical care for the child; reasonably necessary medical care does not include recommended or optional vaccinations against childhood or any other disease;
(e) The parent has failed to exercise reasonable visitation or communication with the child;
(f) The parent's abusive or neglectful conduct has caused, at least in part, an extreme and deep-seated antipathy by the child toward the parent, or some other substantial erosion of the relationship between the parent and the child;
(g) The parent has committed an abusive act for which reasonable efforts to maintain the children in the home would not be required under Section 43-21-603, or a series of physically, mentally, or emotionally abusive incidents, against the child or another child, whether related by consanguinity or affinity or not, making future contacts between the parent and child undesirable; or
(h) (i) The parent has been convicted of any of the following offenses against any child:
1. Rape of a child under Section 97-3-65;
2. Sexual
battery of a child under Section 97-3-95 * * *;
3. Touching a child for lustful purposes under Section 97-5-23;
4. Exploitation of a child under Sections 97-5-31 through 97-5-37;
5. Felonious abuse or battery of a child under Section 97-5-39(2);
6. Carnal
knowledge of a step or adopted child or a child of a cohabitating partner under
Section 97-5-41; * * *
7. Human
trafficking of a child under Section 97-3-54.1; * * *
8. Sexual assault of a child under Section 97-3-97; or
(ii) The parent has been convicted of:
1. Murder or voluntary manslaughter of another child of the parent;
2. Aiding, abetting, attempting, conspiring or soliciting to commit murder or voluntary manslaughter of the child or another child of the parent; or
3. A felony assault that results in the serious bodily injury to the child or another child of the parent.
SECTION 22. Section 93-21-107, Mississippi Code of 1972, is amended as follows:
93-21-107. (1) To qualify for funds under the provisions of Sections 93-21-101 through 93-21-113, a domestic violence shelter shall meet all the following requirements:
(a) Be incorporated in the state or recognized by the Secretary of State as a private or public nonprofit corporation. Such corporation shall have a board of directors and/or an advisory committee who represents the racial, ethnic and social economic diversity of the area to be served, including, if possible, at least one (1) person who is or has been a victim of domestic violence.
(b) Have designed and developed a program to provide the following basic services to victims of domestic violence and their children:
(i) Shelter on a twenty-four (24) hour a day, seven (7) days a week basis.
(ii) A twenty-four (24) hour, seven (7) days a week switchboard for crisis calls.
(iii) Temporary housing and food facilities.
(iv) Group support and peer counseling.
(v) Referrals to existing services in the community and follow-up on the outcome of the referrals.
(vi) A method of referral for medical care, legal assistance and group support and counseling of victims of domestic violence.
(vii) Information regarding reeducation, marriage and family counseling, job counseling, and training programs, housing referrals, and other available social services.
(viii) A referral program of counseling for the victim and the offender.
(2) Domestic violence shelters shall establish procedures for admission of victims of domestic violence who may seek admission to these shelters on a voluntary basis.
(3) A domestic violence shelter shall not qualify for funds if it discriminates in its admissions or provision of services on the basis of race, religion, color, age, marital status, national origin or ancestry.
(4) Any state-source grant made to a shelter shall be matched with local funds in an amount not less than twenty-five percent (25%) of the state-source grant amount. The local contribution may not include in-kind contributions.
(5) A domestic violence shelter receiving state funding under the provisions of Sections 93-21-101 through 93-21-113 shall not be prohibited from accepting gifts, trusts, bequests, grants, endowments, federal funds, other special source funds or transfers of property of any kind for the support of that shelter program.
(6) The OAIV shall insure that no grant made with state funds is in an amount that would exceed One Hundred Thousand Dollars ($100,000.00) inflated by a general CPI inflator to insure that the grant offers shelters the same buying power that a grant of One Hundred Thousand Dollars ($100,000.00) provided in 1983.
(7) A domestic violence shelter shall require persons employed by or volunteering services to the shelter to maintain the confidentiality of any information that would identify individuals served by the shelter.
(8) A domestic violence shelter shall provide educational programs relating to battered spouses and domestic violence designed for both the community at large and/or specialized groups such as hospital personnel and law enforcement officials.
(9) No child shall be placed in any domestic violence shelter that receives state funding under these provisions of Sections 93-21-101 through 93-21-113, and no domestic violence shelter that receives state funding under these provisions may admit or accept any child, unless the child is accompanied by his parent or guardian and such parent or guardian will remain with the child in the shelter until the child leaves or is released from the shelter. However, this subsection shall not prevent any rape crisis center from providing care, counseling and related services to any child who is a victim of rape, attempted rape, sexual battery or attempted sexual battery, sexual assault or attempted sexual assault and who is not accompanied by his parent or guardian.
SECTION 23. Section 93-21-115, Mississippi Code of 1972, is amended as follows:
93-21-115. The governing authorities of any municipality in the state are hereby authorized and empowered, in their discretion, to donate annually out of any money in the municipal treasury such sums as the governing authorities deem advisable to support any domestic violence shelter or rape crisis center operating within or serving its area. For the purposes of this section, "rape crisis center" means a place established to provide care, counseling and related services to victims of rape, attempted rape, sexual battery or attempted sexual battery, sexual assault or attempted sexual assault.
SECTION 24. Section 97-3-2, Mississippi Code of 1972, is amended as follows:
97-3-2. (1) The following shall be classified as crimes of violence:
(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);
(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);
(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);
(f) Kidnapping as provided in Section 97-3-53;
(g) Human trafficking as provided in Section 97-3-54.1;
(h) Poisoning as provided in Section 97-3-61;
(i) Rape as provided in Sections 97-3-65 and 97-3-71;
(j) Robbery as provided in Sections 97-3-73 and 97-3-79;
(k) Sexual battery as provided in Section 97-3-95;
(l) Drive-by shooting or bombing as provided in Section 97-3-109;
(m) Carjacking as provided in Section 97-3-117;
(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
(r) Exploitation of a child as provided in Section 97-5-33;
(s) Sexual assault as provided in Section 97-3-97;
( * * *t) Gratification of lust as provided
in Section 97-5-23; and
( * * *u) Shooting into a dwelling as
provided in Section 97-37-29.
(2) In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1) of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court.
SECTION 25. Section 97-3-19, Mississippi Code of 1972, is amended as follows:
97-3-19. (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder;
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder;
(c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, sexual assault, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies, shall be first-degree murder;
(d) When done with deliberate design to effect the death of an unborn child, shall be first-degree murder.
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term "peace officer" means any state or federal law enforcement officer, including, but not limited to, a federal park ranger, the sheriff of or police officer of a city or town, a conservation officer, a parole officer, a judge, senior status judge, special judge, district attorney, legal assistant to a district attorney, county prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the Department of Revenue, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections who are designated as peace officers by the Commissioner of Corrections pursuant to Section 47-5-54, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary;
(b) Murder which is perpetrated by a person who is under sentence of life imprisonment;
(c) Murder which is perpetrated by use or detonation of a bomb or explosive device;
(d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, sexual assault, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;
(f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony;
(g) Murder which is perpetrated on educational property as defined in Section 97-37-17;
(h) Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official;
(i) Murder of three (3) or more persons who are killed incident to one (1) act, scheme, course of conduct or criminal episode;
(j) Murder of more than three (3) persons within a three-year period;
(k) Murder which is perpetrated by the killing of a person who: (i) is or would be a witness for the state or federal government in a criminal trial; (ii) is a confidential informant for any agency of the state or federal government; or (iii) is any other person who was cooperating or assisting the state or federal government or was suspected of cooperation or assistance to the state or federal government, if the motive for the killing was either the person's status as a witness, potential witness or informant, or was to prevent the cooperation or assistance to the prosecution. It shall not be a defense to a killing under this subsection that the defendant erroneously suspected or believed the victim to have cooperated or assisted the state or federal government.
(3) An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter.
SECTION 26. Section 97-3-99, Mississippi Code of 1972, is amended as follows:
97-3-99. * * *
The legal spouse of the alleged victim may be found guilty of sexual battery or
sexual assault if the legal spouse engaged in * * * the acts
described in Sections 97-3-95 and 97-3-97 without the consent of the
alleged victim.
SECTION 27. Section 97-5-40, Mississippi Code of 1972, is amended as follows:
97-5-40. Condoning child abuse.
(1) Any parent, guardian, custodian, stepparent or any other person who lives in the household with a child, who knowingly condones an incident of felonious child abuse of that child, which consists of one or more violations of (a) subsection (2) of Section 97-5-39 or (b) felonious sexual battery of that child, which consists of one or more violations of Section 97-3-95 or Section 97-3-97 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or both.
(2) A person shall not be considered to have condoned child abuse merely because such person does not report an act of child abuse.
(3) The provisions of this section shall be in addition to any other criminal law.
SECTION 28. Section 97-5-51, Mississippi Code of 1972, is amended as follows:
97-5-51. (1) Definitions. For the purposes of this section:
(a) "Sex crime against a minor" means any offense under at least one (1) of the following statutes when committed by an adult against a minor who is under the age of sixteen (16):
(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) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(vi) Section 97-5-33 relating to exploitation of children;
(vii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(viii) Section 43-47-18 relating to sexual abuse of a vulnerable person;
(ix) Section 97-1-7
relating to the attempt to commit any of the offenses listed in this subsection * * *;
(x) Section 97-3-97 relating to sexual assault of a minor.
(b) "Mandatory reporter" means any of the following individuals performing their occupational duties: health care practitioner, clergy member, teaching or child care provider, law enforcement officer, or commercial image processor.
(c) "Health care practitioner" means any individual who provides health care services, including a physician, surgeon, physical therapist, psychiatrist, psychologist, medical resident, medical intern, hospital staff member, licensed nurse, midwife and emergency medical technician or paramedic.
(d) "Clergy member" means any priest, rabbi or duly ordained deacon or minister.
(e) "Teaching or child care provider" means anyone who provides training or supervision of a minor under the age of sixteen (16), including a teacher, teacher's aide, principal or staff member of a public or private school, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider.
(f) "Commercial image processor" means any person who, for compensation: (i) develops exposed photographic film into negatives, slides or prints; (ii) makes prints from negatives or slides; or (iii) processes or stores digital media or images from any digital process, including, but not limited to, website applications, photography, live streaming of video, posting, creation of power points or any other means of intellectual property communication or media including conversion or manipulation of still shots or video into a digital show stored on a photography site or a media storage site.
(g) "Caretaker" means any person legally obligated to provide or secure adequate care for a minor under the age of sixteen (16), including a parent, guardian, tutor, legal custodian or foster home parent.
(2) (a) Mandatory reporter requirement. A mandatory reporter shall make a report if it would be reasonable for the mandatory reporter to suspect that a sex crime against a minor has occurred.
(b) Failure to file a mandatory report shall be punished as provided in this section.
(c) Reports made under this section and the identity of the mandatory reporter are confidential except when the court determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor. The identity of the reporting party shall not be disclosed to anyone other than law enforcement or prosecutors except under court order; violation of this requirement is a misdemeanor. Reports made under this section are for the purpose of criminal investigation and prosecution only and information from these reports is not a public record. Disclosure of any information by the prosecutor shall conform to the Mississippi Uniform Rules of Circuit and County Court Procedure.
(d) Any mandatory reporter who makes a required report under this section or participates in a judicial proceeding resulting from a mandatory report shall be presumed to be acting in good faith. Any person or institution reporting in good faith shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.
(3) (a) Mandatory reporting procedure. A report required under subsection (2) must be made immediately to the law enforcement agency in whose jurisdiction the reporter believes the sex crime against the minor occurred. Except as otherwise provided in this subsection (3), a mandatory reporter may not delegate to any other person the responsibility to report, but shall make the report personally.
(i) The reporting requirement under this subsection (3) is satisfied if a mandatory reporter in good faith reports a suspected sex crime against a minor to the Department of Human Services under Section 43-21-353.
(ii) The reporting requirement under this subsection (3) is satisfied if a mandatory reporter reports a suspected sex crime against a minor by following a reporting procedure that is imposed:
1. By state agency rule as part of licensure of any person or entity holding a state license to provide services that include the treatment or education of abused or neglected children; or
2. By statute.
(b) Contents of the report. The report shall identify, to the extent known to the reporter, the following:
(i) The name and address of the minor victim;
(ii) The name and address of the minor's caretaker;
(iii) Any other pertinent information known to the reporter.
(4) A law enforcement officer who receives a mandated report under this section shall file an affidavit against the offender on behalf of the State of Mississippi if there is probable cause to believe that the offender has committed a sex crime against a minor.
(5) Collection of forensic samples. (a) (i) When an abortion is performed on a minor who is less than fourteen (14) years of age at the time of the abortion procedure, fetal tissue extracted during the abortion shall be collected in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the pregnancy being terminated is the result of a sex crime against a minor.
(ii) When a minor who is under sixteen (16) years of age gives birth to an infant, umbilical cord blood shall be collected, if possible, in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the minor's pregnancy resulted from a sex crime against a minor.
(iii) It shall be reasonable to suspect that a sex crime against a minor has occurred if the mother of an infant was less than sixteen (16) years of age at the time of conception and at least one (1) of the following conditions also applies:
1. The mother of the infant will not identify the father of the infant;
2. The mother of the infant lists the father of the infant as unknown;
3. The person the mother identifies as the father of the infant disputes his fatherhood;
4. The person the mother identifies as the father of the infant is twenty-one (21) years of age or older; or
5. The person the mother identifies as the father is deceased.
(b) The State Medical Examiner shall adopt rules and regulations consistent with Section 99-49-1 that prescribe:
(i) The amount and type of fetal tissue or umbilical cord blood to be collected pursuant to this section;
(ii) Procedures for the proper preservation of the tissue or blood for the purpose of DNA testing and examination;
(iii) Procedures for documenting the chain of custody of such tissue or blood for use as evidence;
(iv) Procedures for proper disposal of fetal tissue or umbilical cord blood collected pursuant to this section;
(v) A uniform reporting instrument mandated to be utilized, which shall include the complete residence address and name of the parent or legal guardian of the minor who is the subject of the report required under this subsection (5); and
(vi) Procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.
(6) Penalties. (a) A person who is convicted of a first offense under this section shall be guilty of a misdemeanor and fined not more than Five Hundred Dollars ($500.00).
(b) A person who is convicted of a second offense under this section shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for not more than thirty (30) days, or both.
(c) A person who is convicted of a third or subsequent offense under this section shall be guilty of a misdemeanor and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for not more than one (1) year, or both.
(7) A health care practitioner or health care facility shall be immune from any penalty, civil or criminal, for good-faith compliance with any rules and regulations adopted pursuant to this section.
SECTION 29. 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, aggravated domestic violence, kidnapping, arson, burglary, forgery, counterfeiting, robbery, larceny, rape, embezzlement, obtaining money or property under false pretenses or by fraud, felonious abuse, sexual assault 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), exploitation of children as described in Section 97-5-33, promoting prostitution under Section 97-29-51(2) when the person involved is a minor, or any human trafficking offense as described in Section 97-3-54.1(1)(a), (1)(b) or (1)(c), Section 97-3-54.2 or Section 97-3-54.3. A person shall not be prosecuted for conspiracy, as described in Section 97-1-1, for felonious assistance-program fraud, as described in Section 97-19-71, or for felonious abuse of vulnerable persons, as described in Sections 43-47-18 and 43-47-19, unless the prosecution for the offense is 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 the offense is 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 the offense is 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 30. Section 99-19-101, Mississippi Code of 1972, is amended as follows:
99-19-101. (1) Upon conviction or adjudication of guilt of a defendant of capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a jury to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Mississippi. The state and the defendant and the defendant's counsel shall be permitted to present arguments for or against the sentence of death.
(2) After hearing all the evidence, the jury shall deliberate on the following matters:
(a) Whether sufficient factors exist as enumerated in subsection (7) of this section;
(b) Whether sufficient aggravating circumstances exist as enumerated in subsection (5) of this section;
(c) Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and
(d) Based on these considerations, whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility for parole, or death.
(3) For the jury to impose a sentence of death, it must unanimously find in writing the following:
(a) That sufficient factors exist as enumerated in subsection (7) of this section;
(b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.
In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.
(4) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Mississippi within sixty (60) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period by the Supreme Court for good cause shown. The review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) Aggravating circumstances shall be limited to the following:
(a) The capital offense was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, sexual battery, sexual assault, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse or battery of a child in violation of subsection (2) of Section 97-5-39, or the unlawful use or detonation of a bomb or explosive device.
(e) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital offense was committed for pecuniary gain.
(g) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital offense was committed to influence the policy of a governmental entity by intimidation or coercion, or to affect the conduct of a governmental entity by mass destruction or assassination.
(i) The capital offense was especially heinous, atrocious or cruel.
(j) The capital offense was committed to intimidate or coerce a civilian population.
(6) Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:
(a) The defendant actually killed;
(b) The defendant attempted to kill;
(c) The defendant intended that a killing take place;
(d) The defendant contemplated that lethal force would be employed.
(8) For the purposes of this section, to "intimidate" or "coerce" do not include peaceful picketing, boycotts or other nonviolent action.
SECTION 31. Section 99-35-115, Mississippi Code of 1972, is amended as follows:
99-35-115. (1) A person convicted of felony child abuse, sexual battery or sexual assault of a minor or any offense in which a sentence of death or life imprisonment is imposed shall not be entitled to be released from imprisonment pending an appeal to the Supreme Court.
(2) (a) A person convicted of any felony, not enumerated in subsection (1), shall be entitled to be released from imprisonment on bail pending an appeal to the Supreme Court, within the discretion of a judicial officer, if the convict shows by clear and convincing evidence that release of the convict would not constitute a special danger to any other person or to the community, and that a condition or a combination of conditions may be placed on release that will reasonably assure the appearance of the convict as required, and only when the peculiar circumstances of the case render it proper.
(b) If bail is denied, the judicial officer shall place the reasons for such denial of record in the case.
(c) For the purposes of this section, "judicial officer" means the trial court or trial judge, a judge of the district in which the conviction occurred, the Supreme Court or a justice of the Supreme Court in vacation of the court.
(d) The victim or family of a victim shall be entitled to submit a written statement objecting to the granting of release on bail pending appeal.
SECTION 32. Section 99-37-25, Mississippi Code of 1972, is amended as follows:
99-37-25. (1) (a) When a person is brought into a doctor's office, a hospital or a medical clinic by a law enforcement agency as the victim of an alleged rape or sexual assault having occurred in this state, or comes into a doctor's office, a hospital or a medical clinic alleging rape or sexual assault having occurred in this state, the bill for the medical forensic examination and the preparation of the sexual assault evidence collection kit will be sent to the Division of Victim Compensation, Office of the Attorney General. The Division of Victim Compensation shall pay for the medical examination conducted for the procurement of evidence to aid in the investigation and prosecution of the alleged offense. Such payment shall be limited to the customary and usual hospital and physician charges for such services in the area. Such payment shall be made by the Division of Victim Compensation directly to the health care provider. No bill for the examination will be submitted to the victim, nor shall the medical facility hold the victim responsible for payment. The victim may be billed for any further medical services not required for the investigation and prosecution of the alleged offense. In cases where the damage caused by the alleged sexual assault requires medical treatment or diagnosis in addition to the examination, the patient will be given information about the availability of victim compensation and the procedure for applying for such compensation.
(b) Upon application submitted by the district attorney, provided the proper warrant or court order has been issued, the county in which an offense of sexual assault or of felonious abuse or battery of a child as described in Section 97-3-97, sexual assault, Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, exploitation of children as described in Section 97-5-33 or sexual battery as described in Section 97-3-95, or statutory rape as defined in Section 97-3-65, or an attempt to commit such offense has occurred shall pay for a medical forensic examination of the person arrested, charged or convicted of such offense to determine if the person so arrested, charged or convicted has any sexually transmitted disease and for the collection of evidence. Such payment shall be made by the county directly to the health care provider or other service performing the collection of evidence and tests. At the victim's request, a test for human immunodeficiency virus (HIV) shall be administered to the defendant/accused not later than forty-eight (48) hours after the date on which the information or indictment is presented, and the defendant/accused shall be subjected to follow-up testing for HIV upon a determination that such follow-up testing is medically necessary and reasonable. The results of any such test shall be confidential but shall be made available to the victim or, if the victim is a child, to the guardian of the victim. After an indictment, if the case is dismissed, the defendant is found not guilty or the case is not prosecuted within three (3) years of the indictment, all records of tests shall be returned to the accused or destroyed. Upon a showing of good cause, the court may retain such records and allow a case to remain open after the expiration of the three-year limitation provided herein.
(2) Any defendant who is
convicted of, or pleads guilty or nolo contendere to, any offense or an attempt
to commit any such offense specified in subsection (1)(b) shall be ordered by
the court to make restitution to the Division of Victim Compensation in an
amount equal to the compensation paid by the Division of Victim Compensation to
the victim or medical provider for the medical forensic examination and to the
county for tests for sexually transmitted diseases. Such restitution shall be
in addition to any restitution which the court orders the defendant to pay the
victim under the provisions of Chapter 37 * * *, Title 99, (Sections 99-37-1 through
99-37-21), Mississippi Code of 1972.
(3) The Division of Victim Compensation is hereby authorized, in its discretion, to make application for and comply with such requirements as may be necessary to qualify for any federal funds as may be available as a result of services rendered to crime victims under the provisions of this section.
SECTION 33. Section 11-13-41, Mississippi Code of 1972, is amended as follows:
11-13-41. (1) A victim of
stalking, as defined in Section 97-3-107, or sexual assault, as defined in
Section 97-3-65 * * *
97-3-95 or 97-3-97, who files an action seeking injunctive relief
preventing violent or threatening acts or harassment against, or contact or
communication with or physical proximity to the victim against the perpetrator
of that offense, shall not be assessed any fees related to the filing of such request,
the issuance of any process of court, or the issuance of any order
providing such protection.
(2) The court, upon issuing any such relief, shall assess costs of court to the perpetrator of the offense. In the event the court determines the request is frivolous, the court shall assess the costs of court to the petitioner.
SECTION 34. Section 93-21-25, Mississippi Code of 1972, is amended as follows:
93-21-25. (1) In order to provide a statewide registry for protection orders and to aid law enforcement, prosecutors and courts in handling such matters, the Attorney General is authorized to create and administer a Mississippi Protection Order Registry. The Attorney General's office shall implement policies and procedures governing access to the registry by authorized users, which shall include provisions addressing the confidentiality of any information which may tend to reveal the location or identity of a victim of domestic abuse.
(2) All orders issued
pursuant to Sections 93-21-1 through 93-21-29, 97-3-7 * * *, 97-3-65 * * *, 97-3-97 or 97-3-101 * * * will be maintained in the Mississippi
Protection Order Registry. It shall be the duty of the clerk of the issuing
court to enter all civil and criminal domestic abuse protection orders and all
criminal sexual assault protection orders, including any modifications,
amendments or dismissals of such orders, into the Mississippi Protection Order
Registry within twenty-four (24) hours of issuance with no exceptions for
weekends or holidays. A separate copy of any order shall be provided to the
sheriff's department TAC officers of the county of the issuing court. The copy
may be provided in electronic format. Each qualifying protection order
submitted to the Mississippi Protection Order Registry shall be automatically
transmitted to the National Criminal Information Center Protection Order File.
Failure of the clerk to enter the order into the registry or to provide a copy
of the order to law enforcement shall have no effect on the validity or
enforcement of an otherwise valid protection order.
Any information regarding the registration or issuance of a civil or criminal domestic abuse protection order or a criminal sexual assault protection order, or the filing of a petition for a civil domestic abuse protection order which is maintained in the Mississippi Protection Order Registry and would tend to reveal the identity or location of the protected person(s) shall not constitute a public record and shall be exempt from disclosure pursuant to the Mississippi Public Records Act of 1983. This information may be disclosed to appropriate law enforcement, prosecutors or courts for protection order enforcement purposes.
SECTION 35. Section 99-3-7, Mississippi Code of 1972, is amended as follows:
99-3-7. (1) An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.
(2) Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest and the officer has knowledge through official channels that the warrant is outstanding for that person's arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable.
(3) (a) Any law
enforcement officer shall arrest a person with or without a warrant when he has
probable cause to believe that the person has, within twenty-four (24) hours of
such arrest, knowingly committed a misdemeanor or felony that is an act of
domestic violence or knowingly violated provisions of a criminal domestic
violence or sexual assault protection order issued pursuant to Section 97-3-7 * * *, 97-3-65 * * *, 97-3-97 or 97-3-101 * * * or an ex parte protective order, protective
order after hearing or court-approved consent agreement entered by a chancery,
circuit, county, justice or municipal court pursuant to the Protection from
Domestic Abuse Law, Sections 93-21-1 through 93-21-29, Mississippi Code of
1972, or a restraining order entered by a foreign court of competent
jurisdiction to protect an applicant from domestic violence.
(b) If a law enforcement officer has probable cause to believe that two (2) or more persons committed an act of domestic violence as defined herein, or if two (2) or more persons make complaints of domestic violence to the officer, the officer shall attempt to determine who was the principal aggressor. The term principal aggressor is defined as the party who poses the most serious ongoing threat, or who is the most significant, rather than the first, aggressor. The officer shall presume that arrest is not the appropriate response for the person or persons who were not the principal aggressor. If the officer affirmatively finds more than one (1) principal aggressor was involved, the officer shall document those findings.
(c) To determine which party was the principal aggressor, the officer shall consider the following factors, although such consideration is not limited to these factors:
(i) Evidence from the persons involved in the domestic abuse;
(ii) The history of domestic abuse between the parties, the likelihood of future injury to each person, and the intent of the law to protect victims of domestic violence from continuing abuse;
(iii) Whether one (1) of the persons acted in self-defense; and
(iv) Evidence from witnesses of the domestic violence.
(d) A law enforcement officer shall not base the decision of whether to arrest on the consent or request of the victim.
(e) A law enforcement officer's determination regarding the existence of probable cause or the lack of probable cause shall not adversely affect the right of any party to independently seek appropriate remedies.
(4) (a) Any person authorized by a court of law to supervise or monitor a convicted offender who is under an intensive supervision program may arrest the offender when the offender is in violation of the terms or conditions of the intensive supervision program, without having a warrant, provided that the person making the arrest has been trained at the Law Enforcement Officers Training Academy established under Section 45-5-1 et seq., or at a course approved by the Board on Law Enforcement Officer Standards and Training.
(b) For the purposes of this subsection, the term "intensive supervision program" means an intensive supervision program of the Department of Corrections as described in Section 47-5-1001 et seq., or any similar program authorized by a court for offenders who are not under jurisdiction of the Department of Corrections.
(5) As used in subsection (3) of this section, the phrase "misdemeanor or felony that is an act of domestic violence" shall mean one or more of the following acts between current or former spouses or a child of current or former spouses, persons living as spouses or who formerly lived as spouses or a child of persons living as spouses or who formerly lived as spouses, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, persons who have a current or former dating relationship, or persons who have a biological or legally adopted child together:
(a) Simple or aggravated domestic violence within the meaning of Section 97-3-7;
(b) Disturbing the family or public peace within the meaning of Section 97-35-9, 97-35-11, 97-35-13 or 97-35-15; or
(c) Stalking within the meaning of Section 97-3-107.
(6) Any arrest made pursuant to subsection (3) of this section shall be designated as domestic assault or domestic violence on both the arrest docket and the incident report. Any officer investigating a complaint of a misdemeanor or felony that is a crime of domestic violence who finds probable cause that such an offense has occurred within the past twenty-four (24) hours shall file an affidavit on behalf of the victim(s) of the crime, regardless of whether an arrest is made within that time period. If the crime is reported or investigated outside of that twenty-four-hour period, the officer may file the affidavit on behalf of the victim. In the event the officer does not file an affidavit on behalf of the victim, the officer shall instruct the victim of the procedure for filing on his or her own behalf.
(7) A law enforcement officer shall not be held liable in any civil action for an arrest based on probable cause and in good faith pursuant to subsection (3) of this section, or failure, in good faith, to make an arrest pursuant to subsection (3) of this section.
(8) The authority for the State Chief Deputy Fire Marshal and deputy state fire marshals to make arrests shall be governed by the provisions of Section 45-11-1.
SECTION 36. Section 99-47-1, Mississippi Code of 1972, is amended as follows:
99-47-1. (1) Definitions. As used in this section:
(a) "Confidential address" means any residential street address, school address, or work address of an individual, as specified on the individual's application to be a program participant under this section.
(b) "Program participant" means a person certified as a program participant under this section.
(c) "Domestic violence" means any of the following acts committed against a current or former spouse, a person living as a spouse or who formerly lived as a spouse or a child of persons living as spouses or who formerly lived as spouses, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, a person with whom the defendant has a biological or legally adopted child in common, or a person in a current or former dating relationship:
(i) A violation of a domestic violence protection order;
(ii) Simple or aggravated domestic violence as defined in Section 97-3-7(3) or 97-3-7(4); or
(iii) Threats of such acts.
(d) "Sexual assault" means an act as defined in Section 45-33-23(h) as a sex offense and in Section 97-3-97.
(e) "Stalking" means an act as defined in Section 97-3-107 or Section 97-45-15.
(f) "Substitute address" means an address designated and assigned by the Office of the Attorney General to a program participant as a substitute mailing address under the Address Confidentiality Program.
(g) "Victim" means an individual against whom domestic violence, sexual assault, or stalking has been committed.
(2) Address Confidentiality Program. (a) An adult, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person, may apply to the Office of the Attorney General to have an address designated by the Office of the Attorney General serve as the substitute address for the person, the minor or the incapacitated person. The Office of the Attorney General shall approve an application if it is filed in the manner and on the form prescribed by the Office of the Attorney General and if it contains:
(i) A sworn statement by the applicant that the applicant has good reason to believe that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, stalking, or sexual assault, and that the applicant fears for his or her safety, or his or her children's safety, or the safety of the minor or incapacitated person on whose behalf the application is made;
(ii) A designation of the Office of the Attorney General as agent for purposes of services of process and for the purpose of receipt of mail;
(iii) The confidential address where the applicant can be contacted by the Office of the Attorney General, and the telephone number or numbers where the applicant can be contacted by the Office of the Attorney General;
(iv) The confidential address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of domestic violence, stalking, or sexual assault;
(v) A statement of any existing or pending court order or court action involving the applicant that is related to divorce proceedings, child support, child custody, or child visitation; the court that issued each order or has jurisdiction over an action shall be noted;
(vi) The signature of the applicant and a representative of a domestic violence shelter or rape crisis center as designated under subsection (6) who assisted in the preparation of the application;
(vii) The date on which the applicant signed the application; and
(viii) Evidence that the applicant is a victim of domestic violence, sexual assault, or stalking. This evidence shall include at least one (1) of the following:
1. Law enforcement, court or other local, state or federal agency records or files;
2. Documentation from a domestic violence shelter or rape crisis center; or
3. Other form of evidence as determined by the Office of the Attorney General.
(b) Applications shall be filed with the Office of the Attorney General.
(c) Upon approval of an application, the Office of the Attorney General shall certify the applicant as a program participant. Upon certification, the Office of the Attorney General shall issue an Address Confidentiality Program authorization card to the program participant. Applicants shall be certified for four (4) years following the date of certification unless the certification is withdrawn, cancelled or invalidated before that date.
(d) A program applicant who falsely attests in an application that disclosure of the applicant's address would endanger the applicant's safety or the safety of the applicant's children or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application or while a program participant, shall be guilty of a misdemeanor, punishable by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term not to exceed six (6) months.
(e) A fraudulent attempt to gain access to a program participant's confidential address shall constitute a felony, punishable by a fine not to exceed Two Thousand Dollars ($2,000.00) or by imprisonment in the county jail for a term not to exceed two (2) years.
(f) Knowingly entering the Address Confidentiality Program to evade civil liability or criminal prosecution shall constitute a felony, punishable by a fine not to exceed Two Thousand Dollars ($2,000.00) or by imprisonment in the county jail for a term not to exceed two (2) years.
(g) A program participant may terminate the certification by filing a notarized request for withdrawal from the program with the Office of the Attorney General.
(3) Certification cancellation. (a) If the program participant obtains a name change, the person's program participation is terminated and the person may immediately reapply for certification under the new name.
(b) The Office of the Attorney General may cancel a program participant's certification if there is a change in the residential address or telephone number from the address or the telephone number listed for the program participant on the application unless the program participant provides the Office of the Attorney General with a minimum of seven (7) days' notice before the change of address occurs.
(c) The Office of the Attorney General may cancel certification of a program participant if mail forwarded by the Office of the Attorney General to the program participant's confidential address is returned as undeliverable or if service of process documents are returned to the Office of the Attorney General as unable to be served.
(d) The Office of the Attorney General shall cancel certification of a program participant who applies using false information.
(e) The Office of the Attorney General shall send notice of cancellation to the program participant. Notice of cancellation shall set out the reasons for cancellation. That program participant shall have thirty (30) days from receipt of notification of cancellation to appeal the cancellation decisions under procedures adopted by the Office of the Attorney General.
(f) An individual who ceases to be a program participant is responsible for notifying persons, who use the substitute address designated by the Office of the Attorney General as the program participant's address, that the designated substitute address is no longer the individual's address.
(4) Agency use of designated address. (a) Except as otherwise provided in this section, a program participant may request that public bodies use the address designated by the Office of the Attorney General as the participant's substitute address. The program participant, and not the Office of the Attorney General, domestic violence shelter, nor rape crisis center, is responsible for requesting that any public body use the address designated by the Office of the Attorney General as the substitute address of the program participant. If there is any criminal proceeding on behalf of the program participant, the program participant is also responsible for notifying any law enforcement agency and the district attorney's office of the person's participation in the program. There shall be no responsibility on the part of any district attorney's office or any law enforcement agency to request that a public body use the substitute address. Public bodies shall accept the address designated by the Office of the Attorney General as a program participant's substitute address, unless the Office of the Attorney General has determined that:
(i) The public body has a bona fide statutory or administrative requirement for the use of the confidential address of the program participant as defined in this section; and
(ii) The confidential address will be used only for those statutory and administrative purposes.
(b) A program participant may use the substitute address designated by the Office of the Attorney General as his or her work address.
(c) The Office of the Attorney General shall forward all first-class, certified or registered mail to the program participant at the confidential address provided by the program participant. The Office of the Attorney General shall not be required to track or otherwise maintain records of any mail received on behalf of a program participant unless the mail is certified or registered.
(d) A program participant's name, confidential address, telephone number and any other identifying information within the possession of a public body, as defined by Section 25-61-3, shall not constitute a public record within the meaning of the Mississippi Public Records Act of 1983. The program participant's actual name, address and telephone number shall be confidential and no public body shall disclose the program participant's name, address, telephone number, or any other identifying information.
(5) Disclosure of records prohibited; exceptions. A program participant's confidential address and telephone number and any other identifying information in the possession of the Office of the Attorney General shall not constitute a public record within the meaning of the Mississippi Public Records Act of 1983, and shall not be disclosed during discovery in any criminal prosecution. The Office of the Attorney General shall not make any records in a program participant's file available for inspection or copying other than the address designated by the Office of the Attorney General, except under the following circumstances:
(a) If requested by a law enforcement agency, to the law enforcement agency for official use only, but not to be included in any reports made by the law enforcement agency or required to be produced in discovery in any criminal prosecution;
(b) If directed by a court order, to a person identified in the order; or
(c) To verify, if requested by a public body, the participation of a specific program participant, in which case the Office of the Attorney General may only confirm participation in the program and confirm information supplied by the requester.
(6) Assistance for program applicants. The Office of the Attorney General shall refer potential participants to domestic violence shelters or rape crisis centers that provide shelter and counseling services to either victims of domestic violence, stalking, or sexual assault to assist persons applying to be program participants.
(7) Address confidentiality funding. Expenses of administering the Address Confidentiality Program shall be paid from the Crime Victims' Compensation Fund.
(8) Immunity. The Office of the Attorney General and/or its agents and/or employees are immune from civil and/or criminal liability for damages for conduct within the scope and arising out of the performance of the duties imposed under this section. Any district attorney and his agents and employees, any law enforcement agency and its agents and employees, and any local or state agency and its agents and employees are immune from liability, whether civil or criminal, for damages for conduct within the scope and arising out of the program. Any employee or representative of a domestic violence shelter or rape crisis center who acts in good faith to assist a victim complete an application for participation in the Address Confidentiality Program shall be immune from civil and/or criminal liability. Any assistance rendered pursuant to this section, by the Office of the Attorney General, its agents or employees, shall in no way be construed as legal advice.
(9) Adoption of rules. The Office of the Attorney General Victim Compensation Division is authorized to adopt rules and regulations as shall be necessary for carrying out the provisions of this section.
SECTION 37. This act shall take effect and be in force from and after July 1, 2018.