MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary, Division A
By: Senator(s) Hill
AN ACT PROHIBITING THE MUTILATION OF GIRLS AND YOUNG WOMEN, CREATING CIVIL REMEDIES FOR VICTIMS OF MUTILATION, AND PROVIDING A STATUTE OF LIMITATIONS FOR ACTIONS ARISING FROM SUCH ACTS; TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO CREATE GENITAL MUTILATION OF A FEMALE MINOR AS CHILD ABUSE; TO AMEND SECTION 93-15-121, MISSISSIPPI CODE OF 1972, TO CREATE GENITAL MUTILATION OF A FEMALE MINOR AS A GROUND FOR TERMINATION OF CHILD ABUSE; TO AMEND SECTION 11-1-60, MISSISSIPPI CODE OF 1972, TO WAIVE THE TORT CLAIM LIMITS ON CAUSES OF ACTION FOR GENITAL MUTILATION OF A FEMALE MINOR; TO AMEND SECTION 11-46-15, MISSISSIPPI CODE OF 1972, TO WAIVE SOVEREIGN IMMUNITY FOR A CAUSE OF ACTION BASED ON THE GENITAL MUTILATION OF A FEMALE MINOR; TO AMEND SECTION 15-1-35, MISSISSIPPI CODE OF 1972, TO CREATE A NEW STATUTE OF LIMITATIONS FOR A CAUSE OF ACTION FOUNDED ON THE GENITAL MUTILATION OF A FEMALE MINOR; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Definitions. For the purposes of this act:
(a) "Mutilation" means the following actions or procedures to the genitalia of female minors: (i) the partial or total removal of the clitoris and/or the prepuce; (ii) the partial or total removal of the clitoris and the labia minora, with or without excision of the labia major; or (iii) the narrowing of the vaginal opening through the creation of a covering seal formed by cuffing and repositioning the inner, and sometimes outer, labia, with or without removal of the clitoris. "Mutilation" also means all other harmful procedures to the genitalia of female minors, including, but not limited to, pricking, piercing, incising, scraping and cauterizing, unless these harmful procedures are proven to be medically necessary for the minor due to a recognized medical condition by a preponderance of the evidence.
(b) "Provider" means the following persons: (i) all health care providers, including, but not limited to, hospitals, clinics, doctors, nurses, and all other natural and legal persons who provide health care services; (ii) teachers; and (iii) all social services providers, including, but not limited to, organizations, social workers, therapists and case workers.
(2) Providers' duty to report mutilation. Any provider who discovers the mutilation of, or the threat of mutilation to, a female minor shall immediately report such mutilation or threatened mutilation to the Mississippi Department of Child Protection Services and the law enforcement agency in whose jurisdiction the reporter believes the violation or threatened violation of this section occurred and provide written notice of such mutilation or threatened mutilation in writing within twelve (12) hours of the discovery thereof to the Mississippi Department of Child Protection Services and the law enforcement agency in whose jurisdiction the reporter believes the violation or threatened violation of this section occurred. The report shall include the name and address of the victim or potential victim.
(3) The Mississippi Department of Child Protection Services shall maintain a confidential registry of reports of violations of this section.
(4) Penalties. (a) Any person who: (i) mutilates, or (ii) arranges for mutilation, or (iii) knowingly transports a resident of this state outside of this state for mutilation, or (iv) recklessly transports a resident of this state outside of this state to a place where mutilation is reasonably likely to occur, or (v) aids and abets mutilation, or (vi) conspires to mutilate, to arrange for mutilation, to transport a resident of this state outside of this state for mutilation or to a place where mutilation is reasonably likely to occur, or to aid and abet mutilation, shall be guilty of a felony and shall be sentenced to no less than ten (10) years in prison, and shall pay a fine of Fifty Thousand Dollars ($50,000.00).
(b) Any provider who knows, or has reason to know, of mutilation or threatened mutilation, and who fails to report such mutilation to the Mississippi Department of Child Protection Services and the law enforcement agency in whose jurisdiction the reporter believes the violation or threatened violation of this section occurred in accordance with the terms of this act shall be guilty of a misdemeanor and shall be sentenced to not more than one (1) year in prison, and a fine not to exceed Five Thousand Dollars ($5,000.00).
(5) Civil remedies. (a) In addition to any other remedies she may have under law, the victim of mutilation shall recover treble her damages for pain, suffering, and psychological trauma, exemplary damages, litigation costs, expert fees, and actual attorney fees from any person who: (i) mutilated her; (ii) arranged for her mutilation; (iii) knowingly transported her outside of this state for mutilation; (iv) recklessly transported her outside of this state to a place where mutilation was reasonably likely to occur; (v) aided and abetted her mutilation; or (vi) conspired to mutilate her, to arrange for her mutilation, to transport her outside of this state for mutilation or to a place where mutilation was reasonably likely to occur, or to aid and abet her mutilation.
(b) In addition to any other remedies she may have under law, a victim of mutilation that occurs after the effective date of this act may seek and recover treble her damages, including damages for pain, suffering, and psychological trauma, exemplary damages, and actual litigation costs, expert fees, and attorney fees from a provider and/or the secretary, provided that the victim proves that the provider or the secretary failed to comply with their obligations hereunder.
SECTION 2. Section 97-5-39, Mississippi Code of 1972, is amended as follows:
97-5-39. (1) (a) Except as otherwise provided in this section, any parent, guardian or other person who intentionally, knowingly or recklessly commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child or which act or omission results in the abuse of any child, as defined in Section 43-21-105(m) of the Youth Court Law, or who knowingly aids any child in escaping or absenting himself from the guardianship or custody of any person, agency or institution, or knowingly harbors or conceals, or aids in harboring or concealing, any child who has absented himself without permission from the guardianship or custody of any person, agency or institution to which the child shall have been committed by the youth court shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.
(b) For the purpose of this section, a child is a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services, or who is married, is not considered a child for the purposes of this statute.
(c) If a child commits one (1) of the proscribed acts in subsection (2)(a), (b) or (c) of this section upon another child, then original jurisdiction of all such offenses shall be in youth court.
(d) If the child's deprivation of necessary clothing, shelter, health care or supervision appropriate to the child's age results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment in the custody of the Department of Corrections for not more than five (5) years or to payment of a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(e) A parent, legal guardian or other person who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment in the custody of the Department of Corrections for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(2) Any person shall be guilty of felonious child abuse in the following circumstances:
(a) Whether bodily harm results or not, if the person shall intentionally, knowingly or recklessly:
(i) Burn any child;
(ii) Physically torture any child;
(iii) Strangle, choke, smother or in any way interfere with any child's breathing;
(iv) Poison a child;
(v) Starve a child of nourishments needed to sustain life or growth;
(vi) Use any type of deadly weapon upon any child;
(b) If some bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Throw, kick, bite, or cut any child;
(ii) Strike a child under the age of fourteen (14) about the face or head with a closed fist;
(iii) Strike a child under the age of five (5) in the face or head;
(iv) Kick, bite, cut or strike a child's genitals; circumcision of a male child is not a violation under this subparagraph (iv);
(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Strike any child on the face or head;
(ii) Disfigure or scar any child;
(iii) Whip, strike or otherwise abuse any child;
(d) If the person violates Section 1 of this act;
( * * *e) Any person, upon conviction under
paragraph (a) or (c) of this subsection, shall be sentenced by the court to
imprisonment in the custody of the Department of Corrections for a term of not
less than five (5) years and up to life, as determined by the court. Any
person, upon conviction under paragraph (b) of this subsection shall be
sentenced by the court to imprisonment in the custody of the Department of
Corrections for a term of not less than two (2) years nor more than ten (10)
years, as determined by the court. For any second or subsequent conviction
under this subsection (2), the person shall be sentenced to imprisonment for
life * * *;
( * * *f) For the purposes of this subsection
(2), "bodily harm" means any bodily injury to a child and includes,
but is not limited to, bruising, bleeding, lacerations, soft tissue swelling,
and external or internal swelling of any body organ * * *;
( * * *g) For the purposes of this subsection
(2), "serious bodily harm" means any serious bodily injury to a child
and includes, but is not limited to, the fracture of a bone, permanent
disfigurement, permanent scarring, or any internal bleeding or internal trauma
to any organ, any brain damage, any injury to the eye or ear of a child or
other vital organ, and impairment of any bodily function * * *;
( * * *h) Nothing contained in paragraph (c)
of this subsection shall preclude a parent or guardian from disciplining a
child of that parent or guardian, or shall preclude a person in loco parentis
to a child from disciplining that child, if done in a reasonable manner, and reasonable
corporal punishment or reasonable discipline as to that parent or guardian's
child or child to whom a person stands in loco parentis shall be a defense to
any violation charged under paragraph (c) of this subsection * * *;
( * * *i) Reasonable discipline and
reasonable corporal punishment shall not be a defense to acts described in
paragraphs (a) and (b) of this subsection or if a child suffers serious bodily
harm as a result of any act prohibited under paragraph (c) of this subsection.
(3) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(4) (a) A parent, legal guardian or caretaker who endangers a child's person or health by knowingly causing or permitting the child to be present where any person is selling, manufacturing or possessing immediate precursors or chemical substances with intent to manufacture, sell or possess a controlled substance as prohibited under Section 41-29-139 or 41-29-313, is guilty of child endangerment and may be sentenced to imprisonment for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(b) If the endangerment results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment for not more than twenty (20) years or to payment of a fine of not more than Twenty Thousand Dollars ($20,000.00), or both.
(5) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(6) After consultation with the Department of Human Services, a regional mental health center or an appropriate professional person, a judge may suspend imposition or execution of a sentence provided in subsections (1) and (2) of this section and in lieu thereof require treatment over a specified period of time at any approved public or private treatment facility. A person may be eligible for treatment in lieu of criminal penalties no more than one (1) time.
(7) In any proceeding resulting from a report made pursuant to Section 43-21-353 of the Youth Court Law, the testimony of the physician making the report regarding the child's injuries or condition or cause thereof shall not be excluded on the ground that the physician's testimony violates the physician-patient privilege or similar privilege or rule against disclosure. The physician's report shall not be considered as evidence unless introduced as an exhibit to his testimony.
(8) Any criminal prosecution arising from a violation of this section shall be tried in the circuit, county, justice or municipal court having jurisdiction; provided, however, that nothing herein shall abridge or dilute the contempt powers of the youth court.
SECTION 3. 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(c);
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; or
7. Human trafficking of a child under Section 97-3-54.1; 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; * * *
3. A felony
assault that results in the serious bodily injury to the child or another child
of the parent * * *;
or
4. Violating Section 1 of this act.
SECTION 4. Section 11-1-60, Mississippi Code of 1972, is amended as follows:
11-1-60. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include punitive or exemplary damages.
(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
(2) Except as provided in paragraph (d) of this subsection (2):
(a) In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.
(b) In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.
It is the intent of this section to limit all noneconomic damages to the above.
(c) The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.
(d) The limitations of paragraphs (a) and (b) of this subsection (2) shall not apply to any cause of action brought under Section 1 of this act.
(3) Nothing contained in subsection (1) of this section shall be construed as creating a cause of action or as setting forth elements of or types of damages that are or are not recoverable in any type of cause of action.
SECTION 5. Section 11-46-15, Mississippi Code of 1972, is amended as follows:
11-46-15. (1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00);
(b) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00);
(c) For claims or causes of action arising from acts or omissions occurring on or after July 1, 2001, the sum of Five Hundred Thousand Dollars ($500,000.00), except that this limit shall not apply to a cause of action brought under Section 1 of this act.
(2) No judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award for exemplary or punitive damages or for interest prior to judgment, or an award of attorney's fees unless attorney's fees are specifically authorized by law.
(3) Except as otherwise provided in Section 11-46-17(4), in any suit brought under the provisions of this chapter, if the verdict which is returned, when added to costs and any attorney's fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount of liability provided in subsection (1) of this section.
SECTION 6. Section 15-1-35, Mississippi Code of 1972, is amended as follows:
15-1-35. All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after, except that an action founded on a violation of Section 1 of this act shall be commenced within ten (10) years next after the cause of such action accrued.
SECTION 7. This act shall take effect and be in force from and after July 1, 2018.