Bill Text: MS HB1371 | 2023 | Regular Session | Engrossed
Bill Title: Therapists; create a felony for those who have sexual contact with patients.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2023-02-28 - Died In Committee [HB1371 Detail]
Download: Mississippi-2023-HB1371-Engrossed.html
MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representative Gunn
House Bill 1371
(As Passed the House)
AN ACT TO CREATE NEW SECTION 97-3-102, MISSISSIPPI CODE OF 1972, TO PROVIDE A CRIME FOR A THERAPIST WHO ENGAGES IN SEXUAL CONTACT WITH A PATIENT; TO AMEND SECTION 97-3-95, MISSISSIPPI CODE OF 1972, TO INCLUDE THE TERM "THERAPIST" IN THE PROVISION OF LAW THAT REGULATES THE CRIME OF SEXUAL BATTERY; TO AMEND SECTION 73-54-29, MISSISSIPPI CODE OF 1972, TO ADD ENGAGING IN SEXUAL CONTACT WITH A PATIENT TO THE GROUNDS FOR DISCIPLINARY ACTION OF MARRIAGE AND FAMILY THERAPISTS; TO AMEND SECTION 73-53-17, MISSISSIPPI CODE OF 1972, TO ADD ENGAGING IN SEXUAL CONTACT WITH A PATIENT TO THE GROUNDS FOR DISCIPLINARY ACTION OF SOCIAL WORKERS; TO AMEND SECTION 73-30-21, MISSISSIPPI CODE OF 1972, TO ADD ENGAGING IN SEXUAL CONTACT WITH A PATIENT TO THE GROUNDS FOR DISCIPLINARY ACTION OF LICENSED PROFESSIONAL COUNSELORS; TO AMEND SECTION 73-31-21, MISSISSIPPI CODE OF 1972, TO ADD ENGAGING IN SEXUAL CONTACT WITH A PATIENT TO THE GROUNDS FOR DISCIPLINARY ACTION OF PSYCHOLOGISTS; TO AMEND SECTION 73-25-29, MISSISSIPPI CODE OF 1972, TO ADD ENGAGING IN SEXUAL CONTACT WITH A PATIENT TO THE GROUNDS FOR DISCIPLINARY ACTION OF PHYSICIANS; TO BRING FORWARD SECTION 97-3-97, MISSISSIPPI CODE OF 1972, WHICH PROVIDES DEFINITIONS FOR THE CRIME OF SEXUAL BATTERY; TO BRING FORWARD SECTION 97-3-101, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE PENALTIES FOR THE CRIME OF SEXUAL BATTERY; TO PROVIDE ADDITIONAL IMMUNITY FOR ANY PERSON WHO, IN GOOD FAITH, REPORTS ABUSE, NEGLECT OR COMMERCIAL SEXUAL EXPLOITATION; TO REQUIRE ANY PERSON OR ENTITY WHO LEARNS THAT AN ADULT WAS ABUSED AS A CHILD BY A PERSON WHO WAS OR IS ASSOCIATED WITH THE PERSON OR ENTITY; TO PROVIDE IMMUNITY TO SUCH PERSON FOR REPORTING; TO AMEND SECTIONS 43-21-353 AND 97-3-54.1, MISSISSIPPI CODE OF 1972, TO PROVIDE IMMUNITY FOR THE REPORTER OF SEXUAL ABUSE WHICH MAY BE INCURRED AS A RESULT OF REPORTING; TO BRING FORWARD SECTION 97-5-51, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR MANDATORY REPORTING, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 97-3-102, Mississippi Code of 1972:
97-3-102. (1) For purposes of this act, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Clergy" means a priest, rabbi, Christian Science practitioner, imam, minister, pastor, leader of any religious sect or any spiritual leader of any church, religious body or religious society, or person who holds himself or herself out to be a priest, rabbi, Christian Science practitioner, imam, minister, pastor, leader of any religious denomination or any spiritual leader of any church, religious body or religious society.
(b) "Former patient or client" means a patient who received services from the therapist within twelve (12) months after the end of a patient or client-therapist relationship.
(c) "Mental health services" means the treatment, assessment, or counseling of another person for a cognitive, spiritual, behavioral, emotional, mental, or social issue.
(d) "Patient" means a person who receives paid or unpaid services from the therapist.
(e) "Sexual contact" means kissing, touching, including oral touching, of another person's inner thigh, breast, groin, buttock, anus, pubes or genitals, whether clothed or unclothed, sexual penetration as defined in Section 97-3-97, or encouraging the patient to kiss, touch, including oral touch, of the patient's inner thigh, breast, groin, buttock, anus, pubes or genitals, whether clothed or unclothed, or penetrate any opening of the patient's body for the pleasure or gratification of the therapist.
(f) "Spiritual leader" means a person in a religious sect whose primary purpose is to provide spiritual guidance, enrichment and instruction for or on behalf of the religious denomination.
(g) "Therapist" means a physician, psychologist, nurse, counselor, substance abuse counselor, social worker, clergy, marriage or family therapist, mental health service provider, hypnotist, any associate thereof, or other person, regardless of whether the person is licensed or certified by this state, who provides or purports to provide mental health services.
(2) It shall be unlawful for any person who is a therapist or who holds himself or herself out to be a therapist to have sexual contact with a patient or former patient regardless of whether the sexual contact occurs during any treatment, consultation, counseling, interview or examination of the patient. Any person convicted for a violation of this section shall be guilty of a felony and punished by imprisonment for not more than five (5) years in the custody of the Department of Corrections, fined not more than Ten Thousand Dollars ($10,000.00), or both.
(3) Consent of the patient shall not be a defense to the prohibition described in this section.
(4) The provisions of this section shall not be construed to replace any other applicable provisions of law. The penalties described in this section may be used in addition to any other penalties authorized by law for the described conduct.
(5) It is not a violation of this section if the therapist and the patient engaged in sexual contact before the existence of the therapist-patient relationship.
SECTION 2. Section 97-3-95, Mississippi Code of 1972, is amended as follows:
97-3-95. (1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(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.
(2) A person is guilty of
sexual battery if he or she engages in sexual penetration with 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 * * *,
coach or therapist as defined in Section 1 of this act.
SECTION 3. Section 73-54-29, Mississippi Code of 1972, is amended as follows:
73-54-29. Licensees subject to this chapter shall conduct their activities, services and practice in accordance with this chapter and any rules promulgated under this chapter. Licensees may be subject to the exercise of the disciplinary sanctions enumerated in Section 73-53-23 if the board finds that a licensee is guilty of any of the actions listed in Section 73-53-17(1) or is guilty of any of the following:
(a) Violation of any provision of this chapter or any rules or regulations of the board adopted under the provisions of this chapter.
(b) Other just and sufficient cause which renders a person unfit to practice marriage and family therapy as determined by the board, but not limited to:
(i) Habitual use of alcohol or drugs to an extent that affects professional competence;
(ii) Adjudication as being mentally incompetent by a court of competent jurisdiction;
(iii) Practicing in a manner detrimental to the public health and welfare;
(iv) Revocation of a license or certification by a licensing agency or by a certifying professional organization;
(v) Any other
violation of this chapter or the code of ethical standards of the American
Association for Marriage and Family Therapy or other ethical standards adopted
by the board under the provisions of this chapter; * * *
(vi) Continued
practice although the individual failed to renew and has a lapsed license * * *; or
(c) Violation of Section 1 of this act.
SECTION 4. Section 73-53-17, Mississippi Code of 1972, is amended as follows:
73-53-17. (1) Individuals licensed by the board shall conduct their activities, services and practice in accordance with the laws governing their professional practice and any rules promulgated by the board. Licensees and applicants may be subject to the exercise of the sanctions enumerated in Section 73-53-23 if the board finds that a licensee or applicant has committed any of the following:
(a) Negligence in the practice or performance of professional services or activities;
(b) Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public in the course of professional services or activities;
(c) Perpetrating or cooperating in fraud or material deception in obtaining or renewing a license or attempting the same;
(d) Violating the rules and regulations established by the board;
(e) Violating the National Association of Social Workers Code of Ethics or the American Association for Marriage and Family Therapy Code of Ethics;
(f) Being convicted of any crime which has a substantial relationship to the licensee's activities and services or an essential element of which is misstatement, fraud or dishonesty;
(g) Being convicted of any crime which is a felony under the laws of this state or of the United States of America;
(h) Engaging in or permitting the performance of unacceptable services personally due to the licensee's deliberate or grossly negligent act or acts or failure to act, regardless of whether actual damage or damages to the public is established, or assuming responsibility for another's work by signing documents without personal knowledge of the work as established by board rule;
(i) Continued practice although the licensee has become unfit to practice social work due to: (i) failure to keep abreast of current professional theory or practice; or (ii) physical or mental disability; the entry of an order or judgment by a court of competent jurisdiction that a licensee is in need of mental treatment or is incompetent shall constitute mental disability; or (iii) addiction or severe dependency upon alcohol or other drugs which may endanger the public by impairing the licensee's ability to practice;
(j) Continued practice although the individual failed to renew and has a lapsed license;
(k) Having disciplinary action taken against the licensee's license in another state;
(l) Making differential, detrimental treatment against any person because of race, color, creed, sex, religion or national origin;
(m) Engaging in lewd conduct in connection with professional services or activities;
(n) Engaging in false or misleading advertising;
(o) Contracting, assisting or permitting unlicensed persons to perform services for which a license is required under this chapter;
(p) Violation of any probation requirements placed on a licensee by the board;
(q) Revealing confidential information except as may be required by law;
(r) Failing to inform clients of the fact that the client no longer needs the services or professional assistance of the licensee;
(s) Charging excessive
or unreasonable fees or engaging in unreasonable collection practices * * *; or
(t) Violating Section 1 of this act.
(2) The board may order a licensee to submit to a reasonable physical or mental examination if the licensee's physical or mental capacity to practice safely is at issue in a disciplinary proceeding.
(3) Failure to comply with a board order to submit to a physical or mental examination shall render a licensee subject to the summary suspension procedures described in Section 73-53-23.
(4) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 5. Section 73-30-21, Mississippi Code of 1972, is amended as follows:
73-30-21. (1) The board may, after notice and opportunity for a hearing, suspend, revoke or refuse to issue or renew a license or the privilege to practice or may reprimand the license holder or holder of the privilege to practice, upon a determination by the board that such license holder or holder of the privilege to practice or applicant for licensure or the privilege to practice has:
(a) Been adjudged by any court to be mentally incompetent or have had a guardian of person appointed;
(b) Been convicted of a felony;
(c) Sworn falsely under oath or affirmation;
(d) Obtained a license or certificate or the privilege to practice by fraud, deceit or other misrepresentation;
(e) Engaged in the conduct of professional counseling in a grossly negligent or incompetent manner;
(f) Intentionally violated any provision of this article;
(g) Violated any rules
or regulations of the board; * * *
(h) Aided or assisted another
in falsely obtaining a license or the privilege to practice under this article * * *; or
(i) Violated Section 1 of this act.
With regard to a refusal to issue a privilege to practice, such refusal by the board shall be in accordance with the terms of the Professional Counseling Compact instead of this subsection (1).
(2) Appeals from disciplinary action are to be brought in the circuit court in the county of residence of the practitioner. In the event the practitioner resides out of state the appeal should be brought in Hinds County Circuit Court.
(3) The board may assess and levy upon any licensee, practitioner or applicant for licensure or the privilege to practice the costs incurred or expended by the board in the investigation and prosecution of any licensure, privilege to practice or disciplinary action, including, but not limited to, the costs of process service, court reporters, expert witnesses, investigators and attorney's fees.
(4) No revoked license or privilege to practice may be reinstated within twelve (12) months after such revocation. Reinstatement thereafter shall be upon such conditions as the board may prescribe, which may include, without being limited to, successful passing of the examination required by this article.
(5) A license or privilege to practice certificate issued by the board is the property of the board and must be surrendered on demand.
(6) The chancery court is hereby vested with the jurisdiction and power to enjoin the unlawful practice of counseling and/or the false representation as a licensed counselor in a proceeding brought by the board or any members thereof or by any citizen of this state.
(7) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between
any provision of Section 93-11-157 or 93-11-163 and any provision of this article, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 6. Section 73-31-21, Mississippi Code of 1972, is amended as follows:
73-31-21. (1) The board, by an affirmative vote of at least four (4) of its seven (7) members, shall withhold, deny, revoke or suspend any license issued or applied for in accordance with the provisions of this chapter, or otherwise discipline a licensed psychologist, upon proof that the applicant or licensed psychologist:
(a) Has violated the current code of ethics of the American Psychological Association or other codes of ethical standards adopted by the board; or
(b) Has been convicted of a felony or any offense involving moral turpitude, the record of conviction being conclusive evidence thereof; or
(c) Is using any substance or any alcoholic beverage to an extent or in a manner dangerous to any other person or the public, or to an extent that the use impairs his or her ability to perform the work of a professional psychologist with safety to the public; or
(d) Has impersonated another person holding a psychologist license or allowed another person to use his or her license; or
(e) Has used fraud or deception in applying for a license or in taking an examination provided for in this chapter; or
(f) Has accepted commissions or rebates or other forms of remuneration for referring clients to other professional persons; or
(g) Has performed psychological services outside of the area of his or her training, experience or competence; or
(h) Has allowed his or her name or license issued under this chapter to be used in connection with any person or persons who perform psychological services outside of the area of their training, experience or competence; or
(i) Is legally adjudicated mentally incompetent, the record of that adjudication being conclusive evidence thereof; or
(j) Has willfully or negligently
violated any of the provisions of this chapter. The board may recover from any
person disciplined under this chapter, the costs of investigation, prosecution,
and adjudication of the disciplinary action * * *; or
(k) Has violated Section 1 of this act.
(2) Notice shall be effected by registered mail or personal service setting forth the particular reasons for the proposed action and fixing a date not less than thirty (30) days nor more than sixty (60) days from the date of the mailing or that service, at which time the applicant or licensee shall be given an opportunity for a prompt and fair hearing. For the purpose of the hearing, the board, acting by and through its executive secretary, may subpoena persons and papers on its own behalf and on behalf of the applicant or licensee, may administer oaths and may take testimony. That testimony, when properly transcribed, together with the papers and exhibits, shall be admissible in evidence for or against the applicant or licensee. At the hearing, the applicant or licensee may appear by counsel and personally in his or her own behalf. Any person sworn and examined by a witness in the hearing shall not be held to answer criminally, nor shall any papers or documents produced by the witness be competent evidence in any criminal proceedings against the witness other than for perjury in delivering his or her evidence. On the basis of any such hearing, or upon default of applicant or licensee, the board shall make a determination specifying its findings of fact and conclusions of law. A copy of that determination shall be sent by registered mail or served personally upon the applicant or licensee. The decision of the board denying, revoking or suspending the license shall become final thirty (30) days after so mailed or served, unless within that period the applicant or licensee appeals the decision to the chancery court, under the provisions hereof, and the proceedings in chancery shall be conducted as other matters coming before the court. All proceedings and evidence, together with exhibits, presented at the hearing before the board shall be admissible in evidence in court in the appeal.
(3) The board may subpoena persons and papers on its own behalf and on behalf of the respondent, may administer oaths and may compel the testimony of witnesses. It may issue commissions to take testimony, and testimony so taken and sworn to shall be admissible in evidence for and against the respondent. The board shall be entitled to the assistance of the chancery court or the chancellor in vacation, which, on petition by the board, shall issue ancillary subpoenas and petitions and may punish as for contempt of court in the event of noncompliance therewith.
(4) Every order and judgment of the board shall take effect immediately on its promulgation unless the board in the order or judgment fixes a probationary period for the applicant or licensee. The order and judgment shall continue in effect unless upon appeal the court by proper order or decree terminates it earlier. The board may make public its order and judgments in any manner and form as it deems proper. It shall, in event of the suspension or revocation of a license, direct the clerk of the circuit court of the county in which that license was recorded to cancel that record.
(5) Nothing in this section shall be construed as limiting or revoking the authority of any court or of any licensing or registering officer or board, other than the Mississippi Board of Psychology, to suspend, revoke and reinstate licenses and to cancel registrations under the provisions of Section 41-29-311.
(6) Suspension by the board of the license of a psychologist shall be for a period not exceeding one (1) year. At the end of this period the board shall reevaluate the suspension, and shall either reinstate or revoke the license. A person whose license has been revoked under the provisions of this section may reapply for a license after more than two (2) years have elapsed from the date that the denial or revocation is legally effective.
(7) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
(8) The board may issue a nondisciplinary, educational letter to licensees as provided in Section 73-31-7(2)(g). The board may also direct a psychologist to obtain a formal assessment of ability to practice safely if there is reason to believe there may be impairment due to substance abuse or mental incapacity. Licensees who may be impaired, but who are able to practice safely, may be required by the board to seek appropriate treatment and/or supervision. That action by the board in itself will not be considered disciplinary.
SECTION 7. Section 73-25-29, Mississippi Code of 1972, is amended as follows:
73-25-29. The grounds for the nonissuance, suspension, revocation or restriction of a license or the denial of reinstatement or renewal of a license are:
(1) Habitual personal use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining liability.
(2) Habitual use of intoxicating liquors, or any beverage, to an extent which affects professional competency.
(3) Administering, dispensing or prescribing any narcotic drug, or any other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.
(4) Conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(5) Procuring, or attempting to procure, or aiding in, an abortion that is not medically indicated.
(6) Conviction of a felony or misdemeanor involving moral turpitude, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(7) Obtaining or attempting to obtain a license by fraud or deception.
(8) Unprofessional conduct, which includes, but is not limited to:
(a) Practicing medicine under a false or assumed name or impersonating another practitioner, living or dead.
(b) Knowingly performing any act which in any way assists an unlicensed person to practice medicine.
(c) Making or willfully causing to be made any flamboyant claims concerning the licensee's professional excellence.
(d) Being guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public.
(e) Obtaining a fee as personal compensation or gain from a person on fraudulent representation of a disease or injury condition generally considered incurable by competent medical authority in the light of current scientific knowledge and practice can be cured or offering, undertaking, attempting or agreeing to cure or treat the same by a secret method, which he refuses to divulge to the board upon request.
(f) Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.
(g) Failing to identify a physician's school of practice in all professional uses of his name by use of his earned degree or a description of his school of practice.
(h) Violating Section 1 of this act.
(9) The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice medicine in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(10) Surrender of a license or authorization to practice medicine in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this section.
(11) Final sanctions imposed by the United States Department of Health and Human Services, Office of Inspector General or any successor federal agency or office, based upon a finding of incompetency, gross misconduct or failure to meet professionally recognized standards of health care; a certified copy of the notice of final sanction being prima facie evidence thereof. As used in this paragraph, the term "final sanction" means the written notice to a physician from the United States Department of Health and Human Services, Officer of Inspector General or any successor federal agency or office, which implements the exclusion.
(12) Failure to furnish the board, its investigators or representatives information legally requested by the board.
(13) Violation of any provision(s) of the Medical Practice Act or the rules and regulations of the board or of any order, stipulation or agreement with the board.
(14) Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners.
(15) Performing or inducing an abortion on a woman in violation of any provision of Sections 41-41-131 through 41-41-145.
(16) Performing an abortion on a pregnant woman after determining that the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat as provided in Section 41-41-34.1.
In addition to the grounds specified above, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
A physician who provides a written certification as authorized under the Mississippi Medical Cannabis Act and in compliance with rules and regulations adopted thereunder shall not be subject to any disciplinary action under this section solely due to providing the written certification.
SECTION 8. Section 97-3-97, Mississippi Code of 1972, is brought forward as follows:
97-3-97. For purposes of Sections 97-3-95 through 97-3-103 the following words shall have the meaning ascribed herein unless the context otherwise requires:
(a) "Sexual penetration" includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body.
(b) A "mentally defective person" is one who suffers from a mental disease, defect or condition which renders that person temporarily or permanently incapable of knowing the nature and quality of his or her conduct.
(c) A "mentally incapacitated person" is one 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, or other substance administered to that person without his or her consent.
(d) A "physically helpless person" is one who is unconscious or one who for any other reason is physically incapable of communicating an unwillingness to engage in an act.
SECTION 9. Section 97-3-101, Mississippi Code of 1972, is brought forward as follows:
97-3-101. (1) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(a), (b) or (2) shall be imprisoned in the State Penitentiary for a period of not more than thirty (30) years, and for a second or subsequent such offense shall be imprisoned in the Penitentiary for not more than forty (40) years.
(2) (a) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is at least eighteen (18) but under twenty-one (21) years of age shall be imprisoned for not more than five (5) years in the State Penitentiary or fined not more than Five Thousand Dollars ($5,000.00), or both;
(b) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) who is twenty-one (21) years of age or older shall be imprisoned not more than thirty (30) years in the State Penitentiary 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 State Penitentiary for each subsequent offense.
(3) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.
(4) 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.
(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 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 10. (1) In addition to any other immunity provided by law, any person or entity who reports abuse, neglect and/or commercial sexual exploitation or human trafficking or any other form of sexual battery or rape regardless of when the incident occurred or the age of the victim when the person or entity learns of such, shall be presumed to be acting in good faith; and be immune from civil and criminal liability arising from the act of reporting that might otherwise be incurred for such reporting.
SECTION 11. (1) Any person who is listed as a mandatory reporter or any other person or entity that learns in their professional capacity that an adult was sexually, emotionally or physically abused as a child by a person who is associated with the mandatory reporter, the person or the entity shall report the abuse.
(2) Any person who reports abuse as required by subsection (1) of this section shall be immune from liability which may be incurred by the act of reporting or disclosing confidential information.
SECTION 12. Section 43-21-353, Mississippi Code of 1972, is amended as follows:
43-21-353. (1) Any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer, public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child, an abused child, or a victim of commercial sexual exploitation or human trafficking shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Child Protection Services, and immediately a referral shall be made by the Department of Child Protection Services to the youth court intake unit, which unit shall promptly comply with Section 43-21-357. In the course of an investigation, at the initial time of contact with the individual(s) about whom a report has been made under this Youth Court Act or with the individual(s) responsible for the health or welfare of a child about whom a report has been made under this chapter, the Department of Child Protection Services shall inform the individual of the specific complaints or allegations made against the individual. Consistent with subsection (4), the identity of the person who reported his or her suspicion shall not be disclosed at that point. Where appropriate, the Department of Child Protection Services shall additionally make a referral to the youth court prosecutor.
Upon receiving a report that a child has been sexually abused, is a victim of commercial sexual exploitation or human trafficking or has been burned, tortured, mutilated or otherwise physically abused in such a manner as to cause serious bodily harm, or upon receiving any report of abuse that would be a felony under state or federal law, the Department of Child Protection Services shall immediately notify the law enforcement agency in whose jurisdiction the abuse occurred. Within forty-eight (48) hours, the department must notify the appropriate prosecutor and the Statewide Human Trafficking Coordinator. The department shall have the duty to provide the law enforcement agency all the names and facts known at the time of the report; this duty shall be of a continuing nature. The law enforcement agency and the department shall investigate the reported abuse immediately and shall file a preliminary report with the appropriate prosecutor's office within twenty-four (24) hours and shall make additional reports as new or additional information or evidence becomes available. The department shall advise the clerk of the youth court and the youth court prosecutor of all cases of abuse reported to the department within seventy-two (72) hours and shall update such report as information becomes available. In addition, if the Department of Child Protection Services determines that a parent or other person responsible for the care or welfare of an abused or neglected child maintains active duty status within the military, the department shall notify the applicable military installation family advocacy program that there is an allegation of abuse or neglect that relates to that child.
(2) Any report shall contain the names and addresses of the child and his parents or other persons responsible for his care, if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, any other information that might be helpful in establishing the cause of the injury, and the identity of the perpetrator.
(3) The Department of Child Protection Services shall maintain a statewide incoming wide-area telephone service or similar service for the purpose of receiving reports of suspected cases of child abuse, commercial sexual exploitation or human trafficking; provided that any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer or public or private school employee who is required to report under subsection (1) of this section shall report in the manner required in subsection (1).
(4) Reports of abuse, neglect and commercial sexual exploitation or human trafficking made under this chapter and the identity of the reporter are confidential except when the court in which the investigation report is filed, in its discretion, 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 pursuant to subsection (1). Reports made under this section to any law enforcement agency or prosecutorial officer are for the purpose of criminal investigation and prosecution only and no information from these reports may be released to the public except as provided by Section 43-21-261. Disclosure of any information by the prosecutor shall be according to the Mississippi Uniform Rules of Circuit and County Court Procedure. The identity of the reporting party shall not be disclosed to anyone other than law enforcement officers or prosecutors without an order from the appropriate youth court. Any person disclosing any reports made under this section in a manner not expressly provided for in this section or Section 43-21-261 shall be guilty of a misdemeanor and subject to the penalties prescribed by Section 43-21-267. Notwithstanding the confidentiality of the reporter's identity under this section, the Department of Child Protection Services may disclose a reporter's identity to the appropriate law enforcement agency or prosecutor if the department has reason to suspect the reporter has made a fraudulent report, and the Department of Child Protection Services must provide to the subject of the alleged fraudulent report written notification of the disclosure.
(5) All final dispositions of law enforcement investigations described in subsection (1) of this section shall be determined only by the appropriate prosecutor or court. All final dispositions of investigations by the Department of Child Protection Services as described in subsection (1) of this section shall be determined only by the youth court. Reports made under subsection (1) of this section by the Department of Child Protection Services to the law enforcement agency and to the district attorney's office shall include the following, if known to the department:
(a) The name and address of the child;
(b) The names and addresses of the parents;
(c) The name and address of the suspected perpetrator;
(d) The names and addresses of all witnesses, including the reporting party if a material witness to the abuse;
(e) A brief statement of the facts indicating that the child has been abused, including whether the child experienced commercial sexual exploitation or human trafficking, and any other information from the agency files or known to the family protection worker or family protection specialist making the investigation, including medical records or other records, which may assist law enforcement or the district attorney in investigating and/or prosecuting the case; and
(f) What, if any, action is being taken by the Department of Child Protection Services.
(6) In any investigation of a report made under this chapter of the abuse or neglect of a child as defined in Section 43-21-105(l) or (m), the Department of Child Protection Services may request the appropriate law enforcement officer with jurisdiction to accompany the department in its investigation, and in such cases the law enforcement officer shall comply with such request.
(7) Anyone who willfully violates any provision of this section shall be, upon being found guilty, punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by imprisonment in jail not to exceed one (1) year, or both.
(8) If a report is made directly to the Department of Child Protection Services that a child has been abused or neglected or experienced commercial sexual exploitation or human trafficking in an out-of-home setting, a referral shall be made immediately to the law enforcement agency in whose jurisdiction the abuse occurred and the department shall notify the district attorney's office and the Statewide Human Trafficking Coordinator within forty-eight (48) hours of such report. The Department of Child Protection Services shall investigate the out-of-home setting report of abuse or neglect to determine whether the child who is the subject of the report, or other children in the same environment, comes within the jurisdiction of the youth court and shall report to the youth court the department's findings and recommendation as to whether the child who is the subject of the report or other children in the same environment require the protection of the youth court. The law enforcement agency shall investigate the reported abuse immediately and shall file a preliminary report with the district attorney's office within forty-eight (48) hours and shall make additional reports as new information or evidence becomes available. If the out-of-home setting is a licensed facility, an additional referral shall be made by the Department of Child Protection Services to the licensing agency. The licensing agency shall investigate the report and shall provide the department, the law enforcement agency and the district attorney's office with their written findings from such investigation as well as that licensing agency's recommendations and actions taken.
(9) If a child protective investigation does not result in an out-of-home placement, a child protective investigator must provide information to the parent or guardians about community service programs that provide respite care, counseling and support for children who have experienced commercial sexual exploitation or human trafficking, voluntary guardianship or other support services for families in crisis.
(10) Any person or entity who reports abuse, neglect and/or commercial sexual exploitation or human trafficking under this chapter is presumed to be acting in good faith. Any person or institution reporting in good faith shall be immune from civil and criminal liability that might otherwise be incurred.
SECTION 13. 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 twenty (20) years nor more than life in prison, 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 twenty (20) years nor more than life in prison, 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 Sections 43-21-353 and 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 Child Protection Services and to the Statewide Human Trafficking Coordinator. The Department of Child Protection Services or the Statewide Human Trafficking Coordinator, whichever is applicable, shall then immediately notify the law enforcement agency in the jurisdiction where the suspected child abuse, neglect or trafficking occurred as required in Section 43-21-353, and the department that received the report shall also commence an initial investigation into the suspected abuse or neglect as required in Section 43-21-353. The department that received such report shall provide an annual report to the Speaker of the Mississippi House of Representatives, the Lieutenant Governor, the Chairpersons of the House and Senate Judiciary Committees that includes the number of reports received, the number of cases screened in or out, the number of cases in which care and services were provided as a result of the report, and the type of care and services that were provided. A minor who has been identified as a victim of trafficking shall not be liable for criminal activity in violation of this section. Any person or entity who reports abuse, neglect and/or commercial sexual exploitation or human trafficking under this chapter is presumed to be acting in good faith. Any person or institution reporting in good faith shall be immune from civil and criminal liability that might otherwise be incurred from such reporting.
(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 14. Section 97-5-51, Mississippi Code of 1972, is brought forward 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 97-29-51 relating to procuring sexual services of a minor; and
(xi) Section 43-47-18 and Section 43-47-19 relating to sexual battery abuse of a vulnerable person who is 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 Child Protection 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 15. This act shall take effect and be in force from and after July 1, 2023.
