MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representatives Gunn, Williamson, Arnold, Eubanks
AN ACT TO CREATE NEW SECTIONS 37-11-81 AND 39-3-25, MISSISSIPPI CODE OF 1972, TO AUTHORIZE PUBLIC SCHOOLS, CHARTER SCHOOLS, THE MISSISSIPPI SCHOOL OF THE ARTS, THE MISSISSIPPI SCHOOL FOR MATHEMATICS AND SCIENCE, THE MISSISSIPPI VIRTUAL PUBLIC SCHOOL, THE MISSISSIPPI SCHOOL FOR THE DEAF, THE MISSISSIPPI SCHOOL FOR THE BLIND AND PUBLIC LIBRARIES TO OFFER DIGITAL OR ONLINE RESOURCES OR DATABASES TO PERSONS ONLY IF THE VENDOR PROVIDING THOSE RESOURCES VERIFIES THAT IT HAS IN PLACE SAFETY POLICIES AND TECHNOLOGY PROTECTION MEASURES THAT PROHIBIT CHILDREN FROM ACCESSING AND SENDING CHILD PORNOGRAPHY, OBSCENE AND SEXUALLY ORIENTED MATERIALS AND OTHER MATERIALS HARMFUL TO CHILDREN; TO ESTABLISH MONETARY PENALTIES FOR A VENDOR THAT FAILS TO CORRECT NONCOMPLIANCE; TO REQUIRE REPORTS OF NONCOMPLIANCE TO BE MADE TO THE STATE AUDITOR; TO BRING FORWARD SECTIONS 97-5-27, 97-5-29, 97-5-31, 97-5-33, 97-5-37, 97-29-101, 97-29-107 and 97-29-109, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENTS; TO PROVIDE SEVERABILITY IF ANY PART OF THIS ACT IS FOUND UNCONSTITUTIONAL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 37-11-81, Mississippi Code of 1972:
37-11-81. (1) A school district, charter school, the Mississippi School of the Arts, the Mississippi School for Mathematics and Science, the Mississippi Virtual Public School, the Mississippi School for the Deaf and the Mississippi School for the Blind may offer digital or online resources or databases to students in kindergarten through twelfth grade only if the vendor or other person or entity providing the resources verifies that all the resources will comply with the provisions of subsection (2) of this section.
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a person from sending, receiving, viewing or downloading materials that are:
(i) Child pornography;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials, as defined in this act;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Filter or block access to obscene materials, inappropriate materials, materials that are sexually oriented or materials that depict, describe or promote child pornography or child sexual exploitation.
(c) For the purposes of this act, material is obscene, if:
(i) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and
(ii) The material taken as a whole lacks serious literary, artistic, political or scientific value; and
(iii) The material depicts or describes in a patently offensive way, sexual contact specifically defined in items 1 through 5 below:
1. Acts of sexual intercourse of any kind, normal or perverted, actual or simulated;
2. Acts of masturbation;
3. Acts involving excretory functions or lewd exhibition of the genitals;
4. Acts of bestiality or the fondling of sex organs of animals; or
5. Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.
(3) (a) The provisions of this section take precedence over any provision in a contract between a school district or school and a vendor or other person or entity providing digital or online resources or databases to the contrary. Notwithstanding any provision in a contract between a school district or school and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the school district or school shall withhold further payments, if any, to the provider pending verification of compliance.
(b) Upon a first occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from a school district or school that the provider is in compliance with this section, the school district or school shall consider the provider's noncompliance to be a breach of contract.
(c) Upon a second occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from a school district or school that the provider is in compliance with the requirements of this section, the school district or school is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the school district or school to the provider. The school district or school shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the school district or school such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(d) Upon a third occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from a school district or school that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the school district or school is entitled to a complete refund of the agreed upon price in the contract to be paid by the school district or school to the provider. The school district or school shall withhold any future payments that may be due to the provider, and the provider must return to the school district or school all amounts previously paid to the provider under the contract.
(4) The State Auditor may audit a school district or school's compliance with this section. A school district or school must report to the State Auditor a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the district or school learns of the provider's noncompliance.
SECTION 2. The following shall be codified as Section 39-3-25, Mississippi Code of 1972:
39-3-25. (1) A public library may offer digital or online resources or databases to persons only if the vendor or other person or entity providing the resources verifies that all the resources will comply with the provisions of subsection (2) of this section.
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a person from sending, receiving, viewing or downloading materials that are:
(i) Child pornography;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials, as defined in Section 1 of this act;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Filter or block access to obscene materials, inappropriate materials, materials that are sexually oriented or materials that depict, describe or promote child pornography or child sexual exploitation.
(3) (a) The provisions of this section take precedence over any provision in a contract between a public library and a vendor or other person or entity providing digital or online resources or databases to the contrary. Notwithstanding any provision in a contract between a public library and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the library shall withhold further payments, if any, to the provider pending verification of compliance.
(b) Upon a first occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from a public library that the provider is in compliance with this section, the library shall consider the provider's noncompliance to be a breach of contract.
(c) Upon a second occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from a public library that the provider is in compliance with the requirements of this section, the library is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the library to the provider. The library shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the library such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(d) Upon a third occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from a public library that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the library is entitled to a complete refund of the agreed upon price in the contract to be paid by the library to the provider. The library shall withhold any future payments that may be due to the provider, and the provider must return to the library all amounts previously paid to the provider under the contract.
(4) The State Auditor may audit a public library's compliance with this section. A public library must report to the State Auditor a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the library learns of the provider's noncompliance.
SECTION 3. Section 97-5-27, Mississippi Code of 1972, is brought forward as follows:
97-5-27. (1) Any person who intentionally and knowingly disseminates sexually oriented material to any person under eighteen (18) years of age shall be guilty of a misdemeanor and, upon conviction, shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment. A person disseminates sexually oriented material within the meaning of this section if he:
(a) Sells, delivers or provides, or offers or agrees to sell, deliver or provide, any sexually oriented writing, picture, record or other representation or embodiment that is sexually oriented; or
(b) Presents or directs a sexually oriented play, dance or other performance or participates directly in that portion thereof which makes it sexually oriented; or
(c) Exhibits, presents, rents, sells, delivers or provides, or offers or agrees to exhibit, present, rent or to provide any sexually oriented still or motion picture, film, filmstrip or projection slide, or sound recording, sound tape or sound track or any matter or material of whatever form which is a representation, embodiment, performance or publication that is sexually oriented.
(2) For purposes of this section, any material is sexually oriented if the material contains representations or descriptions, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) (a) A person is guilty of computer luring when:
(i) Knowing the character and content of any communication of sexually oriented material, he intentionally uses any computer communication system allowing the input, output, examination or transfer of computer data or computer programs from one (1) computer to another, to initiate or engage in such communication with a person under the age of eighteen (18); and
(ii) By means of such communication he importunes, invites or induces a person under the age of eighteen (18) years to engage in sexual intercourse, deviant sexual intercourse or sexual contact with him, or to engage in a sexual performance, obscene sexual performance or sexual conduct for his benefit.
(b) A person who engages in the conduct proscribed by this subsection (3) is presumed to do so with knowledge of the character and content of the material.
(c) In any prosecution for computer luring, it shall be a defense that:
(i) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor; or
(ii) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to the materials prohibited, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(iii) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or
(iv) The defendant has in good faith established a mechanism such that the labeling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or to circumvent any such screening or blocking.
(d) In any prosecution for computer luring:
(i) No person shall be held to have violated this subsection (3) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
(ii) No employer shall be held liable for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency or the employer, having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly disregards such conduct.
(iii) The limitations provided by this paragraph (d) shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate such provisions, or who knowingly advertises the availability of such communications, nor to a person who provides access or connection to a facility, system or network engaged in the violation of such provisions that is owned or controlled by such person.
(e) Computer luring is a felony, and any person convicted thereof shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed three (3) years and by a fine not to exceed Ten Thousand Dollars ($10,000.00).
(4) Investigation and prosecution of a defendant under this section does not preclude prosecution of the defendant for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Human Trafficking Act, Section 97-3-54 et seq.
SECTION 4. Section 97-5-29, Mississippi Code of 1972, is brought forward as follows:
97-5-29. (1) Any person who intentionally and knowingly places sexually oriented materials upon public display, or who knowingly and intentionally fails to take prompt action to remove such a display from property in his possession after learning of its existence shall be guilty of a misdemeanor and upon conviction shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment.
(2) For purposes of this section any material is sexually oriented if the material consists of representations or descriptions of actual or simulated masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) A person places sexually oriented material upon public display within the meaning of this section if he places the material on or in a billboard, viewing screen, theater stage or marquee, newsstand, display rack, window, showcase, display case or other similar place, including a viewing screen in a vehicle, so that sexually oriented material is easily visible from a public street, public road or sidewalk or from areas of public businesses in which minors are normally business invitees.
SECTION 5. Section 97-5-31, Mississippi Code of 1972, is brought forward as follows:
97-5-31. As used in Sections 97-5-33 through 97-5-37, the following words and phrases shall have the meanings given to them in this section:
(a) "Child" means any individual who has not attained the age of eighteen (18) years.
(b) "Sexually explicit conduct" means actual or simulated:
(i) Oral genital contact, oral anal contact, or sexual intercourse as defined in Section 97-3-65, whether between persons of the same or opposite sex;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse;
(v) Lascivious exhibition of the genitals or pubic area of any person; or
(vi) Fondling or other erotic touching of the genitals, pubic area, buttocks, anus or breast.
(c) "Producing" means producing, directing, manufacturing, issuing, publishing or advertising.
(d) "Visual depiction" includes, without limitation, developed or undeveloped film and video tape or other visual unaltered reproductions by computer.
(e) "Computer" has the meaning given in Title 18, United States Code, Section 1030.
(f) "Simulated" means any depicting of the genitals or rectal areas that gives the appearance of sexual conduct or incipient sexual conduct.
SECTION 6. Section 97-5-33, Mississippi Code of 1972, is brought forward as follows:
97-5-33. (1) No person shall, by any means including computer, cause, solicit or knowingly permit any child to engage in sexually explicit conduct or in the simulation of sexually explicit conduct for the purpose of producing any visual depiction of such conduct.
(2) No person shall, by any means including computer, photograph, film, video tape or otherwise depict or record a child engaging in sexually explicit conduct or in the simulation of sexually explicit conduct.
(3) No person shall, by any means including computer, knowingly send, transport, transmit, ship, mail or receive any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(4) No person shall, by any means including computer, receive with intent to distribute, distribute for sale, sell or attempt to sell in any manner any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(5) No person shall, by any means including computer, knowingly possess or knowingly access with intent to view any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(6) No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.
(7) No person shall by any means, including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct.
(8) The fact that an undercover operative or law enforcement officer posed as a child or was involved in any other manner in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.
(9) For purposes of determining jurisdiction, the offense is committed in this state if all or part of the conduct described in this section occurs in the State of Mississippi or if the transmission that constitutes the offense either originates in this state or is received in this state.
SECTION 7. Section 97-5-37, Mississippi Code of 1972, is brought forward as follows:
97-5-37. The provisions of Sections 97-5-31 through 97-5-37 are supplemental to any statute relating to child abuse or neglect, obscenity, enticement of children or contributing to delinquency of a minor and acquittal or conviction pursuant to any other statute shall not be a bar to prosecution under Sections 97-5-31 through 97-5-37. Acquittal or conviction under Sections 97-5-31 through 97-5-37 shall not be a bar to prosecution and conviction under other statutes defining crimes or misdemeanors, nor to any civil or administrative remedy otherwise available.
SECTION 8. Section 97-29-101, Mississippi Code of 1972, is brought forward as follows:
97-29-101. A person commits the offense of distributing obscene materials or obscene performances when he sells, rents, leases, advertises, publishes or exhibits to any person any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. A person commits the offense of wholesale distributing obscene materials or obscene performances when he distributes for the purpose of resale any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. The word "knowing" as used in this section means either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. The character and reputation of an individual charged with an offense under Sections 97-29-101 through 97-29-109 and, if a commercial dissemination of obscene material or an obscene performance is involved, the character and reputation of the business establishment involved, may be placed in evidence by the defendant on the question of intent to violate Sections 97-29-101 through 97-29-109.
Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of Five Hundred Dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.
SECTION 9. Section 97-29-107, Mississippi Code of 1972, is brought forward as follows:
97-29-107. (1) Sections 97-29-101 through 97-29-109 shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:
(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device;
(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or care;
(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library of any public or private school, college or university in this state; or
(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the State of Mississippi.
(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether sufficient evidence exists to constitute an exemption from prosecution under the provisions of Sections 97-29-101 through 97-29-109. If the motion is sustained, the case shall be dismissed; provided, however, if the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under Sections 97-29-101 through 97-29-109 any matter which could have been raised by the defendant in the motion to dismiss.
SECTION 10. Section 97-29-109, Mississippi Code of 1972, is brought forward as follows:
97-29-109. Any person, except one who wholesale distributes, who violates Section 97-29-101 or Section 97-29-105 shall be guilty of a misdemeanor and, upon conviction, shall, in the case of the first offense, be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both. If the person has been previously convicted of a violation of Section 97-29-101 or Section 97-29-105 or of Section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall be fined not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Ten Thousand Dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both.
Any person who wholesale distributes in violation of Section 97-29-101 or Section 97-29-105 shall, upon conviction, be fined not more than Ten Thousand Dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both. If the person has been previously convicted of a violation of Section 97-29-101 or Section 97-29-105 or of Section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall, upon conviction, be fined not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Fifty Thousand Dollars ($50,000.00) or imprisoned for a term not to exceed one (1) year, or both.
A corporation, company, partnership, firm, association, business, establishment, organization or other legal entity other than an individual convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices shall be fined not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00). If such legal entity has been previously convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices or of a violation of Section 97-5-27 or Section 97-5-29, Mississippi Code of 1972, then such legal entity shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than Fifty Thousand Dollars ($50,000.00).
SECTION 11. If any section, paragraph, sentence, clause, phrase or any part of this act passed on or after the effective date of this act is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts of this act shall be in no manner affected thereby but shall remain in full force and effect.
Unless the contrary intent shall clearly appear in the particular act in question, each and every act passed hereafter shall be read and construed as though the provisions of the first paragraph of this section form an integral part thereof, whether expressly set out therein or not.
SECTION 12. This act shall take effect and be in force from and after July 1, 2023.