Bill Text: MS SB2803 | 2012 | Regular Session | Engrossed
Bill Title: Lonnie Smith Act; revise elements of the offense of felonious child abuse.
Spectrum: Slight Partisan Bill (Republican 4-2)
Status: (Failed) 2012-04-03 - Died In Committee [SB2803 Detail]
Download: Mississippi-2012-SB2803-Engrossed.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary, Division B
By: Senator(s) Wiggins, Jackson (11th), Simmons (12th), Watson, Hill, Jackson (15th)
Senate Bill 2803
(As Passed the Senate)
AN ACT TO BE KNOWN AS THE LONNIE SMITH ACT; TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO REVISE THE ELEMENTS OF THE OFFENSE OF FELONIOUS CHILD ABUSE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-5-39, Mississippi Code of 1972, is amended as follows:
97-5-39. (1) (a) For the purposes of this section, "child" means a person who is less than eighteen (18) years of age, is not on active duty for a branch of the armed services, and is not married.
(b) Except as otherwise provided in this section, any parent, guardian or other person who willfully 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.
(c) If the child's deprivation of necessary food, 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.
(d) 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) A person is guilty of felonious child abuse in the following circumstances:
(a) Whether bodily harm to the child results or not, if the person * * * shall maliciously:
(i) Burn any child;
(ii) Physically torture any child;
(iii) Strangle, choke or interfere with any child's breathing; or
(iv) Shake a child under the age of five (5).
(b) If some bodily harm to the child actually occurs, if the person shall maliciously:
(i) Throw, kick, bite or cut any child;
(ii) Strike a child on the face or head with a closed fist; or
(iii) Use any type of deadly weapon upon any child.
(c) If serious bodily harm to the child actually occurs, if the person shall maliciously:
(i) Strike any child on the face or head;
(ii) Disfigure or scar any child; or
(iii) * * * Whip, strike or otherwise abuse * * * any child. * * *
(d) A person convicted under this subsection (2) shall be sentenced to imprisonment in the custody of the Department of Corrections for * * * a term of * * * not less than ten (10) years nor more than life. For any second or subsequent conviction under this subsection, the person shall be sentenced to imprisonment for life.
(e) For the purposes of this subsection (2):
(i) "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 or the disruption of any bodily function.
(ii) "Serious bodily harm" means any serious bodily injury to a child and includes, but is not limited to, the fracture of a bone, temporary or permanent disfigurement, scarring or injury, any brain damage, any injury to the eye or ear of a child or to any other vital organ, and destruction of any bodily function.
(f) (i) Nothing contained in paragraph (c) of this subsection (2) shall preclude a parent or guardian from disciplining a child of that parent or guardian in a reasonable manner, and reasonable corporal punishment or reasonable discipline as to that parent or guardian's child shall be a defense to any violation charged under subsection (2)(c) of this section.
(ii) Reasonable discipline and reasonable corporal punishment shall not be a defense if the child suffers serious bodily harm as a result of any act prohibited under subsection (2) (c) of this section.
(3) (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 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.
(b) If the endangerment 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 twenty (20) years or to payment of a fine of not more than Twenty Thousand Dollars ($20,000.00), or both.
(4) 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.
(5) 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.
(6) 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.
(7) Any criminal prosecution arising from a violation of this section shall be tried in the circuit, county, justice or municipal court having jurisdiction; * * * however, * * * nothing herein shall abridge or dilute the contempt powers of the youth court.
SECTION 2. This act shall take effect and be in force from and after July 1, 2012, and shall stand repealed from and after June 30, 2012.
