Bill Text: MS SB2005 | 2018 | Regular Session | Introduced
Bill Title: Marissa's Law; enact.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2018-01-30 - Died In Committee [SB2005 Detail]
Download: Mississippi-2018-SB2005-Introduced.html
MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary, Division A
By: Senator(s) Dearing
Senate Bill 2005
AN ACT TO CREATE MARISSA'S LAW; TO AMEND SECTION 97-3-53, MISSISSIPPI CODE OF 1972, TO REQUIRE A MANDATORY MINIMUM SENTENCE FOR KIDNAPPING OF A CHILD UNDER THE AGE OF 16, AND TO REQUIRE THAT THE MINIMUM MANDATORY SENTENCE MAY NOT BE SUSPENDED OR DEFERRED; TO AMEND SECTION 97-3-65, MISSISSIPPI CODE OF 1972, TO REQUIRE A MANDATORY MINIMUM SENTENCE FOR RAPE OF A CHILD UNDER THE AGE OF 16, AND TO REQUIRE THAT THE MINIMUM MANDATORY SENTENCE MAY NOT BE SUSPENDED OR DEFERRED; TO AMEND SECTION 97-3-101, MISSISSIPPI CODE OF 1972, TO REQUIRE A MANDATORY MINIMUM SENTENCE FOR SEXUAL BATTERY OF A CHILD UNDER THE AGE OF 16, AND TO REQUIRE THAT THE MINIMUM MANDATORY SENTENCE MAY NOT BE SUSPENDED OR DEFERRED; TO CREATE NEW SECTION 99-19-49, MISSISSIPPI CODE OF 1972, TO REQUIRE A PERIOD OF SUPERVISION FOR A SEX OFFENDER IF ANY PART OF THE OFFENDER'S SENTENCE IS DEFERRED OR SUSPENDED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be referred to as Marissa's Law in memory of Marissa Marguerite Mathy-Zvaifler of New Mexico who was raped and murdered in 2003 by a convicted sex offender.
SECTION 2. Section 97-3-53, Mississippi Code of 1972, is amended as follows:
97-3-53. Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any vulnerable person as defined in Section 43-47-5 or any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections unless the victim is a child under the age of sixteen (16) years, in which case the court shall fix the penalty at not less than three (3) years nor more than thirty (30) years in the custody of the Department of Corrections, and the minimum sentence shall not be suspended or deferred.
This section shall not be held to repeal, modify or amend any other criminal statute of this state.
SECTION 3. Section 97-3-65, Mississippi Code of 1972, is amended as follows:
97-3-65. (1) The crime of statutory rape is committed when:
(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person's spouse; or
(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person's spouse.
(2) Neither the victim's consent nor the victim's lack of chastity is a defense to a charge of statutory rape.
(3) Upon conviction for statutory rape, the defendant shall be sentenced as follows:
(a) If eighteen (18)
years of age or older, but under twenty-one (21) years of age, and convicted
under subsection (1)(a) of this section, to imprisonment for not more than five
(5) years in the * * * custody of the Department of Corrections or a
fine of not more than Five Thousand Dollars ($5,000.00), or both;
(b) If twenty-one (21)
years of age or older and convicted under subsection (1)(a) of this section, to
imprisonment of not more than thirty (30) years in the * * * custody of the Department
of Corrections or a fine of not more than Ten Thousand Dollars
($10,000.00), or both, for the first offense, and not more than forty (40)
years in the * * *
custody of the Department of Corrections for each subsequent offense;
(c) If eighteen (18)
years of age or older and convicted under subsection (1)(b) of this section, to
imprisonment for life in the * * * custody of the Department
of Corrections or such lesser term of imprisonment as the court may
determine, but not less than twenty (20) years;
(d) If thirteen (13) years of age or older but under eighteen (18) years of age and convicted under subsection (1)(a) or (1)(b) of this section, such imprisonment, fine or other sentence as the court, in its discretion, may determine.
(4) (a) Every person who
shall have forcible sexual intercourse with any person, or who shall have
sexual intercourse not constituting forcible sexual intercourse or statutory
rape with any person without that person's consent by administering to such
person any substance or liquid which shall produce such stupor or such
imbecility of mind or weakness of body as to prevent effectual resistance, upon
conviction, shall be imprisoned for life in the * * * custody of the Department
of Corrections if the jury by its verdict so prescribes; and in cases where
the jury fails to fix the penalty at life imprisonment, subject to any
mandatory minimum sentence based on the age of the victim, the court shall
fix the penalty at imprisonment in the * * * custody of the Department
of Corrections for any term as the court, in its discretion, may
determine. However, if the victim was under the age of sixteen (16) at the
time of the offense, the court shall fix the penalty at not less than three (3)
years in the custody of the Department of Corrections, and the minimum sentence
shall not be suspended or deferred.
(b) This subsection (4) shall apply whether the perpetrator is married to the victim or not.
(5) In all cases where a victim is under the age of sixteen (16) years, it shall not be necessary to prove penetration where it is shown the genitals, anus or perineum of the child have been lacerated or torn in the attempt to have sexual intercourse with the child.
(6) (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 after 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 shall also be empowered to 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.
(7) For the purposes of this section, "sexual intercourse" shall mean a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female or the penetration of the sexual organs of a male or female human being in which the penis or an object is inserted into the genitals, anus or perineum of a male or female.
SECTION 4. Section 97-3-101, Mississippi Code of 1972, is amended 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 * * * custody of the Department
of Corrections for a period of not more than thirty (30) years, and for a
second or subsequent such offense shall be imprisoned in the * * * custody of the Department of
Corrections for not more than forty (40) years, and if the victim was
under sixteen (16) years of age at the time of the offense, the court shall fix
the penalty at not less than three (3) years, and the minimum sentence shall
not be suspended or deferred.
(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 * * * custody of the Department
of Corrections 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 * * * custody of the Department of Corrections 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 * * * custody of the Department
of Corrections 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 * * * custody of the Department
of Corrections 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 5. The following shall be codified as Section 99-19-49, Mississippi Code of 1972:
99-19-49. (1) When a court defers imposition of a sentence, or suspends all or any portion of a sentence, for an offender convicted of any sex offense listed in Section 45-33-23, the court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised probation for a period of not less than five (5) years and not in excess of twenty (20)years. A sex offender's period of supervised probation may be for a period of less than twenty (20) years if, at a review hearing as provided in subsection (2) of this section, the state is unable to prove that the sex offender should remain on probation. Before placing a sex offender on probation, the court shall conduct a hearing to determine the terms and conditions of supervised probation for the sex offender. The court may consider any relevant factors, including: (a) the nature and circumstances of the offense for which the sex offender was convicted or adjudicated; (b) the nature and circumstances of a prior sex offense committed by the sex offender; (c) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere; and (d) the danger to the community posed by the sex offender.
(2) A court must review the terms and conditions of a sex offender's supervised probation at three-year intervals. When a sex offender has served the initial five (5) years of supervised probation, the court shall also review the duration of the sex offender's supervised probation at three-year intervals. When a sex offender has served the initial five (5) years of supervised probation, at each review hearing the state shall bear the burden of proving to a reasonable certainty that the sex offender should remain on probation.
(3) The court may order a sex offender placed on probation to abide by reasonable terms and conditions of probation, including: (a) being subject to intensive supervision by a probation officer of the corrections department; (b) participating in an outpatient or inpatient sex offender treatment program; (c) a probationary agreement by the sex offender not to use alcohol or drugs; (d) a probationary agreement by the sex offender not to have contact with certain persons or classes of persons; and (e) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of his probation.
(4) The court shall notify the sex offender's counsel of record of an upcoming probation hearing for a sex offender, and the sex offender's counsel of record shall represent the sex offender at the probation hearing. When a sex offender's counsel of record provides the court with good cause that the counsel of record should not represent the sex offender at the probation hearing and the sex offender is subsequently unable to obtain counsel, the appropriate public defender shall make representation available to the sex offender at that hearing.
SECTION 6. This act shall take effect and be in force from and after July 1, 2018.
