Bill Text: MS SB2156 | 2016 | Regular Session | Engrossed
Bill Title: Human trafficking; clarify offenses against children.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2016-04-01 - Died On Calendar [SB2156 Detail]
Download: Mississippi-2016-SB2156-Engrossed.html
MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary, Division A
By: Senator(s) Doty, DeBar
Senate Bill 2156
(As Passed the Senate)
AN ACT TO AMEND SECTION 43-21-105, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A TRAFFICKED CHILD IS AN ABUSED CHILD; TO AMEND SECTION 45-33-23, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PROMOTING OR PROCURING PROSTITUTION OF A CHILD ARE REGISTRABLE OFFENSES; TO AMEND SECTION 97-3-54.1, MISSISSIPPI CODE OF 1972, TO INCLUDE COERCION; TO AMEND SECTION 97-3-54.4, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) "Youth court" means the Youth Court Division.
(b) "Judge" means the judge of the Youth Court Division.
(c) "Designee" means any person that the judge appoints to perform a duty which this chapter requires to be done by the judge or his designee. The judge may not appoint a person who is involved in law enforcement to be his designee.
(d) "Child" and "youth" are synonymous, and each means 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 is married is not considered a "child" or "youth" for the purposes of this chapter.
(e) "Parent" means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) "Guardian" means a court-appointed guardian of the person of a child.
(g) "Custodian" means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) "Legal custodian" means a court-appointed custodian of the child.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Uniform Controlled Substances Law and violent behavior.
(k) "Child in need of supervision" means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child, sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. However, physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section. "Abused child" also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act by any person, without regard to the relationship of the person to the child.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.
(o) "A child in need of special care" means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(p) A "dependent child" means any child who is not a child in need of supervision, a delinquent child, an abused child or a neglected child, and which child has been voluntarily placed in the custody of the Department of Human Services by his parent, guardian or custodian.
(q) "Custody" means the physical possession of the child by any person.
(r) "Legal custody" means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(s) "Detention" means the care of children in physically restrictive facilities.
(t) "Shelter" means care of children in physically nonrestrictive facilities.
(u) "Records involving children" means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All social records as defined in Section 43-21-253;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(v) "Any person responsible for care or support" means the person who is providing for the child at a given time. This term shall include, but is not limited to, stepparents, foster parents, relatives, nonlicensed baby-sitters or other similar persons responsible for a child and staff of residential care facilities and group homes that are licensed by the Department of Human Services.
(w) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(x) "Out-of-home" setting means the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
(y) "Durable legal custody" means the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural parent(s) or guardian(s) of the child or children.
(z) "Status offense" means conduct subject to adjudication by the youth court that would not be a crime if committed by an adult.
(aa) "Financially able" means a parent or child who is ineligible for a court-appointed attorney.
SECTION 2. 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(1)(c) when the offender was eighteen (18) years of age or younger at the time of the alleged offense, shall not be a registrable sex offense;
(v) Section 97-5-5 relating to enticing a child for concealment, prostitution or marriage;
(vi) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(vii) Section 97-5-27 relating to the dissemination of sexually oriented material to children;
(viii) Section 97-5-33 relating to the exploitation of children;
(ix) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(x) Section 97-29-3 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.
(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 3. Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:
97-3-54.1. (1) (a) A person who coerces, recruits, entices, harbors, transports, provides or obtains by any means, or attempts to coerce, recruit, entice, harbor, transport, provide or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services, or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, shall be guilty of the crime of human-trafficking.
(b) A person who knowingly purchases the forced labor or services of a trafficked person or who otherwise knowingly subjects, or attempts to subject, another person to forced labor or services or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, shall be guilty of the crime of procuring involuntary servitude.
(c) A person who knowingly subjects, or attempts to subject, or who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, a minor, knowing that the minor will engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and shall be punished by commitment to the custody of the Department of Corrections for not less than five (5) nor more than thirty (30) years, or by a fine of not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00), or both. It is not a defense in a prosecution under this section that a minor consented to engage in the commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or that the defendant reasonably believed that the minor was eighteen (18) years of age or older.
(2) If the victim is not a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years, or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both. If the victim of the offense is a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than five (5) years nor more than twenty (20) years, or by a fine of not less than Twenty Thousand Dollars ($20,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both.
(3) An enterprise may be prosecuted for an offense under this chapter if:
(a) An agent of the enterprise knowingly engages in conduct that constitutes an offense under this chapter while acting within the scope of employment and for the benefit of the entity.
(b) An employee of the enterprise engages in conduct that constitutes an offense under this chapter and the commission of the offense was part of a pattern of illegal activity for the benefit of the enterprise, which an agent of the enterprise either knew was occurring or recklessly disregarded, and the agent failed to take effective action to stop the illegal activity.
(c) It is an affirmative defense to a prosecution of an enterprise that the enterprise had in place adequate procedures, including an effective complaint procedure, designed to prevent persons associated with the enterprise from engaging in the unlawful conduct and to promptly correct any violations of this chapter.
(d) The court may consider the severity of the enterprise's offense and order penalties, including: (i) a fine of not more than One Million Dollars ($1,000,000.00); (ii) disgorgement of profit; and (iii) debarment from government contracts. Additionally, the court may order any of the relief provided in Section 97-3-54.7.
(4) In addition to the mandatory reporting provisions contained in Section 97-5-51, any person who has reasonable cause to suspect that a minor under the age of eighteen (18) is a trafficked person shall immediately make a report of the suspected child abuse or neglect to the Department of Human Services and to the Statewide Human Trafficking Coordinator. The Department of Human Services shall then immediately notify the law enforcement agency in the jurisdiction where the suspected child abuse or neglect occurred as required in Section 43-21-353, and the department shall also commence an initial investigation into the suspected abuse or neglect as required in Section 43-21-353. A minor who has been identified as a victim of trafficking shall not be liable for criminal activity in violation of this section.
(5) It is an affirmative defense in a prosecution under this act that the defendant:
(a) Is a victim; and
(b) Committed the offense under a reasonable apprehension created by a person that, if the defendant did not commit the act, the person would inflict serious harm on the defendant, a member of the defendant's family, or a close associate.
SECTION 4. Section 97-3-54.4, Mississippi Code of 1972, is amended as follows:
97-3-54.4. For the purposes of the Mississippi Human Trafficking Act the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Act" or "this act" means the Mississippi Human Trafficking Act.
(b) "Actor" means a person who violates any of the provisions of Sections 97-3-54 through 97-3-54.4.
(c)
"Blackmail" means obtaining property or things of value of another by
threatening to (i) inflict bodily injury on anyone; or (ii) commit any
other criminal offense * * *.
(d) "Coerce" or "coercion" mean:
(i) Causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person;
(ii) Exposing or threatening to expose any fact or information or disseminating or threatening to disseminate any fact or information that would tend to subject a person to criminal or immigration proceedings, hatred, contempt or ridicule;
(iii) Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document of any person;
(iv) Providing a controlled substance to a person for the purpose of compelling the person to engage in labor or sexual servitude against the person's will;
(v) Causing or threatening to cause financial harm to any person or using financial control over any person;
* * *
( * * *vi) Abusing or threatening to abuse a
position of power, the law, or legal process;
* * *
(vii) Using blackmail;
* * *
(viii) Using an individual's personal services as payment or satisfaction of a real or purported debt when: 1. the reasonable value of the services is not applied toward the liquidation of the debt; 2. the length of the services is not limited and the nature of the services is not defined; 3. the principal amount of the debt does not reasonably reflect the value of the items or services for which the debt is incurred; or 4. the individual is prevented from acquiring accurate and timely information about the disposition of the debt; or
(ix) Using any
scheme, plan or pattern of conduct intended to cause any person to believe
that, if the person did not perform * * * the labor or services, that the
person or another person would suffer serious harm or physical restraint.
( * * *e) "Commercial sexual activity"
means any sex act on account of which anything of value is given to, promised
to, or received by any person.
( * * *f) "Enterprise" means any
individual, sole proprietorship, partnership, corporation, union or other legal
entity, or any association or group of individuals associated in fact
regardless of whether a legal entity has been formed pursuant to any state,
federal or territorial law. It includes illicit as well as licit enterprises
and governmental as well as other entities.
( * * *g) "Financial harm"
includes, but is not limited to, extortion as defined by Section 97-3-82,
Mississippi Code of 1972, or violation of the usury law as defined by Title 75,
Chapter 17, Mississippi Code of 1972.
( * * *h) "Forced labor or
services" means labor or services that are performed or provided by
another person and are obtained or maintained through * * * coercion.
( * * *i) "Labor" means work of
economic or financial value.
( * * *j) "Maintain" means, in
relation to labor or services, to secure continued performance thereof,
regardless of any initial agreement on the part of the trafficked person to
perform such labor or service.
( * * *k) "Minor" means a person
under the age of eighteen (18) years.
( * * *l) "Obtain" means, in
relation to labor or services, to secure performance thereof.
( * * *m) "Pecuniary damages" means
any of the following:
(i) The greater of the gross income or value to the defendant of the victim's labor or services, including sexual services, not reduced by the expense the defendant incurred as a result of maintaining the victim, or the value of the victim's labor or services calculated under the minimum wage and overtime provisions of the Fair Labor Standards Act, 29 USCS Section 201 et seq., whichever is higher;
(ii) If it is not
possible or in the best interest of the victim to compute a value under subparagraph
(i) of this paragraph ( * * *m) * * *, the equivalent of the value of the
victim's labor or services if the victim had provided labor or services that
were subject to the minimum wage and overtime provisions of the Fair Labor
Standards Act, 29 USCS 201 et seq.;
(iii) Costs and expenses incurred by the victim as a result of the offense for:
1. Medical services;
2. Therapy or psychological counseling;
3. Temporary housing;
4. Transportation;
5. Childcare;
6. Physical and occupational therapy or rehabilitation;
7. Funeral, interment, and burial services;
reasonable attorney's fees and other legal costs; and
8. Other expenses incurred by the victim.
( * * *n) "Serious harm" means
harm, whether physical or nonphysical, including psychological, economic or
reputational, to an individual that would compel a reasonable person in similar
circumstances as the individual to perform or continue to perform labor or
services to avoid incurring the harm.
( * * *o) "Services" means an
ongoing relationship between a person and the actor in which the person
performs activities under the supervision of or for the benefit of the actor or
a third party and includes, without limitation, commercial sexual
activity, sexually explicit performances, or the production of sexually
explicit materials.
( * * *p) "Sexually explicit
performance" means a live or public act or show intended to arouse or
satisfy the sexual desires or appeal to the prurient interests of patrons.
( * * *q) "Trafficked person" means
a person subjected to the practices prohibited by this act regardless of
whether a perpetrator is identified, apprehended, prosecuted or convicted, and
is a term used interchangeably with the terms "victim,"
"victim of trafficking" and "trafficking victim."
( * * *r) "Venture" means any group
of two (2) or more individuals associated in fact, whether or not a legal
entity.
( * * *s) "Sexually oriented
material" shall have the meaning ascribed in Section 97-5-27, Mississippi
Code of 1972.
SECTION 5. This act shall take effect and be in force from and after its passage.
