Bill Text: MS SB2012 | 2013 | Regular Session | Introduced
Bill Title: Mississippi Protection from Human Trafficking Act; enact.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2013-02-05 - Died In Committee [SB2012 Detail]
Download: Mississippi-2013-SB2012-Introduced.html
MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division A
By: Senator(s) Jackson (11th)
Senate Bill 2012
AN ACT TO AMEND SECTION 97-3-54.1, MISSISSIPPI CODE OF 1972, TO REQUIRE REPORTING OF TRAFFICKING OF A MINOR UNDER THE AGE OF 18 TO THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES AS SUSPECTED CHILD ABUSE OR NEGLECT; TO AMEND SECTION 97-3-54.4, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS UNDER THE PROTECTION FROM HUMAN TRAFFICKING ACT; TO CREATE SECTION 97-3-54.5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE FORFEITURE OF ANY VEHICLE OR OTHER PROPERTY USED IN FURTHERANCE OF HUMAN TRAFFICKING AND ESTABLISH A PROCEDURE FOR FORFEITURE; TO CREATE SECTION 97-3-54.6, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR RESTITUTION TO VICTIMS OF HUMAN TRAFFICKING; TO CREATE SECTION 97-3-54.7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT INVOLVEMENT OF AN UNDERCOVER AGENT IN DETECTION OF AN OFFENSE IS NOT A DEFENSE TO PROSECUTION; TO CREATE SECTION 97-3-54.8, MISSISSIPPI CODE OF 1972, TO CREATE THE RELIEF FOR VICTIMS OF HUMAN TRAFFICKING FUND; TO AMEND SECTION 97-5-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PROSECUTION THEREUNDER SHALL NOT BAR INVESTIGATION AND PROSECUTION FOR HUMAN TRAFFICKING; TO AMEND SECTION 97-29-49, MISSISSIPPI CODE OF 1972, TO PROVIDE IMMUNITY, VICTIM STATUS AND PROTECTIVE CUSTODY FOR CERTAIN MINORS WHO WOULD BE SUBJECT TO BEING CHARGED WITH PROSTITUTION HAD THEY BEEN OVER THE AGE OF 18 AND TO PROVIDE IMMUNITY FROM PROSECUTION FOR ADULT VICTIMS OF HUMAN TRAFFICKING; TO AMEND SECTION 97-29-51, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 97-29-53, MISSISSIPPI CODE OF 1972, TO REVISE THE PUNISHMENT FOR PROCURING PROSTITUTION OF CERTAIN MINORS; TO AMEND SECTION 97-3-54, MISSISSIPPI CODE OF 1972, TO CONFORM THE ANTI-TRAFFICKING ACT TITLE AND STATUTORY REFERENCES; TO AMEND SECTION 97-43-3, MISSISSIPPI CODE OF 1972, TO INCLUDE HUMAN TRAFFICKING IN THE DEFINITION OF RACKETEERING; TO AMEND SECTIONS 97-5-7 AND 97-5-27, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PROSECUTION THEREUNDER SHALL NOT BAR INVESTIGATION AND PROSECUTION FOR HUMAN TRAFFICKING; TO AMEND SECTION 97-5-31, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS APPLICABLE TO CERTAIN CRIMES AGAINST CHILDREN; TO AMEND SECTION 97-5-33, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PROSECUTION THEREUNDER SHALL NOT BAR INVESTIGATION AND PROSECUTION FOR HUMAN TRAFFICKING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:
97-3-54.1. (1) (a) A
person who recruits, entices, harbors, transports, provides or obtains by any
means, or attempts to 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, shall be guilty of the crime of human * * * trafficking.
(b) A person who knowingly subjects, or attempts to subject, another person to forced labor or services 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, including electronic means,
or attempts to recruit, entice, harbor, transport, provide or obtain by any
means, including electronic 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 more than thirty (30) years.
(2) A person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section, or who benefits, whether financially or by receiving anything of value, from participation in a venture that has engaged in an act described in this section, shall be committed to the custody of the Department of Corrections for not more than twenty (20) years.
(3) Any person who has reasonable cause to suspect 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. The Department of Human Services shall then immediately notify the law enforcement agency in the jurisdiction where the suspected 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.
SECTION 2. Section 97-3-54.4, Mississippi Code of 1972, is amended as follows:
97-3-54.4. For the purposes
of Sections 97-3-54 through 97-3-54. * * *8, the following words and phrases
shall have the meanings ascribed herein unless the context clearly requires
otherwise:
(a) "Actor"
means a person who violates any of the provisions of Sections 97-3-54 through
97-3-54. * * *8.
(b) "Blackmail" means obtaining property or things of value of another by threatening to (i) inflict bodily injury on anyone; (ii) commit any other criminal offense; or (iii) expose any secret tending to subject any person to hatred, contempt or ridicule.
(c) "Commercial sexual activity" means any sex act on account of which anything of value is given to, promised to, or received by any person.
(d) "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.
(e) "Forced labor or services" means labor or services that are performed or provided by another person and are obtained or maintained through an actor:
(i) Causing or threatening to cause serious harm to any person;
(ii) Physically restraining or threatening to physically restrain any person;
(iii) Abusing or threatening to abuse the law or legal process;
(iv) Knowingly 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 another person;
(v) Using blackmail;
(vi) Causing or
threatening to cause financial harm to any person; * * *
(vii) Using any
scheme, plan or pattern intended to cause any person to believe that, if the
person did not perform such labor or services, that person or another person
would suffer serious harm or physical restraint * * *; or
(viii) In the case of a minor victim, using any mechanism of coercion, luring, decoy or enticement, including by use of computer or electronic device, without the necessity of physical harm, financial harm, or threat of physical or financial harm, to the minor or a member of the minor's family or any other person.
(f) "Labor" means work of economic or financial value.
(g) "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.
(h) "Minor" means a person under the age of eighteen (18) years.
(i) "Obtain" means, in relation to labor or services, to secure performance thereof.
(j) "Pecuniary damages" shall have the meaning ascribed in Section 99-37-1(b).
(k)
"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. Commercial sexual activity and
sexually explicit performances shall be considered services under Sections 97-3-54
through 97-3-54. * * *8.
( * * *l) "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.
( * * *m) "Trafficked person" means
a person subjected to the practices prohibited by Sections 97-3-54 through 97-3-54. * * *8 and is a term used interchangeably
with the terms "victim of trafficking" and "trafficking
victim."
( * * *n) "Venture" means any group
of two (2) or more individuals associated in fact, whether or not a legal
entity.
( * * *o) "Sexually oriented
material" shall have the meaning ascribed in Section 97-5-27, Mississippi
Code of 1972.
SECTION 3. The following shall be codified as Section 97-3-54.5, Mississippi Code of 1972:
97-3-54.5. (1) In addition to any other civil or criminal penalties provided by law, any property used in the commission of a violation of Sections 97-3-54 through 97-3-54.8 shall be subject to forfeiture as provided in this section.
(a) The following shall be subject to forfeiture if used or intended for use as an instrumentality in or used in furtherance of a violation of Sections 97-3-54 through 97-3-54.8:
(i) Conveyances, including aircraft, vehicles or vessels;
(ii) Books, records, telecommunication equipment, or computers;
(iii) Money or weapons;
(iv) Everything of value furnished, or intended to be furnished, in exchange for an act in violation and all proceeds traceable to the exchange;
(v) Negotiable instruments and securities;
(vi) Any property, real or personal, directly or indirectly acquired or received in a violation or as an inducement to violate;
(vii) Any property traceable to proceeds from a violation; and
(viii) Any real property, including any right, title and interest in the whole of or any part of any lot or tract of land and any property.
(b) (i) No property used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the property is a consenting party or privy to a violation of Sections 97-3-54 through 97-3-54.8;
(ii) No property is subject to forfeiture under this section by reason of any act or omission proved by the owner thereof to have been committed or omitted without his knowledge or consent. If the confiscating authority has reason to believe that the property is a leased or rented property, then the confiscating authority shall notify the owner of the property within five (5) days of forming reason to believe that the property is leased or rented property;
(iii) A forfeiture of a property encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.
(2) No property shall be forfeited under the provisions of this section, to the extent of the interest of an owner, by reason of any act or omission established by him to have been committed or omitted without his knowledge or consent.
(3) Seizure without process may be made if the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
(4) (a) When any property is seized under this section, proceedings shall be instituted within a reasonable period of time from the date of seizure or the subject property shall be immediately returned to the party from whom seized.
(b) A petition for forfeiture shall be filed by the Attorney General or a district attorney in the name of the State of Mississippi, the county or the municipality and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought, or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21. A copy of the petition shall be served upon the following persons by service of process in the same manner as in civil cases:
(i) The owner of the property, if address is known;
(ii) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the Bureau of Narcotics or the local law enforcement agency by making a good-faith effort to ascertain the identity of the secured party;
(iii) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the seizing law enforcement agency has actual knowledge; and
(iv) Any person in possession of property subject to forfeiture at the time that it was seized.
(5) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, inquiry of the Department of Revenue shall be made as to what the records of the Department of Revenue show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.
(6) If the property is a motor vehicle and is not titled in the State of Mississippi, then an attempt shall be made to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, inquiry of the appropriate agency of that state shall be made as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device which affects the vehicle.
(7) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, inquiry of the appropriate office designated in Section 75-9-501 shall be made as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.
(8) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, inquiry of the Mississippi Department of Transportation shall be made as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.
(9) If the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the record owner and also any lienholder, secured party, other person who holds an interest in the property of a security interest, or holder of an encumbrance, mortgage or deed of trust which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.
(10) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, there shall be filed with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, and shall be served as provided in Section 11-33-37 for publication of notice for attachments at law.
(11) No proceedings instituted pursuant to the provisions of this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by this section shall be introduced into evidence at the hearing.
(12) (a) An owner of a property that has been seized shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the seizing law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court if court would not be in session within thirty (30) days after filing the answer. The court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner upon request of any party.
(b) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of Sections 97-3-54 through 97-3-54.8 shall be by a preponderance of the evidence.
(c) At the hearing any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.
(d) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest, or any holder of a bona fide encumbrance, mortgage or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited.
(13) All real or personal property forfeited under this section shall be liquidated and, after deduction of court costs and the expense of liquidation, the proceeds shall be divided as follows:
(a) If only one (1) law enforcement agency participates in the underlying criminal case out of which the forfeiture arises, twenty percent (20%) of the proceeds shall be forwarded to the State Treasurer and deposited in the Relief for Victims of Human Trafficking Fund, and eighty percent (80%) shall be deposited and credited to the budget of the participating law enforcement agency.
(b) If more than one (1) law enforcement agency participates in the underlying criminal case out of which the forfeiture arises, eighty percent (80%) of the proceeds shall be deposited and credited to the budget of the law enforcement agency whose officers initiated the criminal case and twenty percent (20%) shall be divided equitably between or among the other participating law enforcement agencies, and shall be deposited and credited to the budgets of the participating law enforcement agencies. If the other participating law enforcement agencies cannot agree on the division of their twenty percent (20%), a petition shall be filed by any one of them in the court in which the civil forfeiture case is brought and the court shall make an equitable division.
(14) All money which is forfeited under this section shall be divided, deposited and credited in the same manner as provided in subsection (13) of this section.
(15) All real estate forfeited under the provisions of this section shall be sold to the highest and best bidder at a public auction for cash; the auction is to be conducted by the chief law enforcement officer of the initiating law enforcement agency, or his designee, at such place, on such notice and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution at law. The proceeds of the sale shall first be applied to the cost and expense in administering and conducting the sale, then to the satisfaction of all mortgages, deeds of trust, liens and encumbrances of record on the property. The remaining proceeds shall be divided, forwarded and deposited in the same manner as provided in subsection (13) of this section.
(16) (a) Any county or municipal law enforcement agency may maintain, repair, use and operate for official purposes all property described in subsection (1)(a)(i) of this section that has been forfeited to the agency if it is free from any interest of a bona fide lienholder, secured party or other party who holds an interest in the property in the nature of a security interest. The county or municipal law enforcement agency may purchase the interest of a bona fide lienholder, secured party or other party who holds an interest so that the property can be released for its use. If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law, the law enforcement agency shall be deemed to be the purchaser, and the certificate of title shall be issued to it as required by subsection (5) or (6) of this section.
(b) (i) If a vehicle is forfeited to or transferred to a sheriff's department, then the sheriff may transfer the vehicle to the county for official or governmental use as the board of supervisors may direct.
(ii) If a vehicle is forfeited to or transferred to a police department, then the police chief may transfer the vehicle to the municipality for official or governmental use as the governing authority of the municipality may direct.
(c) If a motor vehicle forfeited to a county or municipal law enforcement agency becomes obsolete or is no longer needed for official or governmental purposes, it may be disposed of in accordance with Section 19-7-5 or in the manner provided by law for disposing of municipal property.
(17) The forfeiture procedure set forth in this section is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, injunction, supersedeas or in any other manner.
SECTION 4. The following shall be codified as Section 97-3-54.6, Mississippi Code of 1972:
97-3-54.6. (1) In addition to any other civil or criminal penalties authorized by law, notwithstanding any provisions to the contrary in Section 99-37-1 et seq., the court shall order restitution to the victim for any offense under this chapter.
(2) The order of restitution under this section shall direct the defendant to pay the victim the full amount of the victim's pecuniary damages through the appropriate court mechanism.
(3) For the purposes of determining restitution, the term "victim" means the individual harmed as a result of a crime under Sections 97-3-54 through 97-3-54.8, including, in the case of a victim who is under eighteen (18) years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or a representative of the victim's estate, or another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named such representative or guardian.
SECTION 5. The following shall be codified as Section 97-3-54.7, Mississippi Code of 1972:
97-3-54.7. The fact that an undercover operative or law enforcement officer was involved in any other manner in the detection and investigation of an offense under this act shall not constitute a defense to a prosecution under Sections 97-3-54 through 97-3-54.8.
SECTION 6. The following shall be codified as Section 97-3-54.8, Mississippi Code of 1972:
97-3-54.8. (1) There is hereby created in the State Treasury a special fund to be known as the "Relief for Victims of Human Trafficking Fund." The fund shall be a continuing fund, not subject to fiscal-year limitations, and shall consist of:
(a) Monies appropriated by the Legislature;
(b) The interest accruing to the fund;
(c) Monies received under the provisions of Section 97-3-54.5;
(d) Donations; and
(e) Monies received from such other sources as may be provided by law.
(2) The monies in the fund shall be used by the Mississippi Attorney General's office solely for funding and administering programs designed to assist victims of human trafficking. The Attorney General's office shall be authorized to provide grants to agencies implementing programs designed to assist victims of human trafficking and shall develop and implement rules and regulations pertaining to the use of any such funds and criteria under which grant applications will be evaluated and ranked.
SECTION 7. Section 97-5-5, Mississippi Code of 1972, is amended as follows:
97-5-5. Every person who
shall maliciously, willfully, or fraudulently lead, take, carry away, decoy or
entice away, any child under the age of fourteen (14) years, with intent to
detain or conceal such child from its parents, guardian, or other person having
lawful charge of such child, or for the purpose of prostitution, concubinage,
or marriage, shall, on conviction, be imprisoned in the Penitentiary not
exceeding ten (10) years * * *, or imprisoned in the county jail not more than one (1) year, or fined
not more than One Thousand Dollars ($1,000.00), or both.
Investigation and prosecution of a defendant under this section shall not be
construed to preclude prosecution of the defendant for a violation of other
applicable criminal laws, including, but not limited to, the Mississippi
Protection from Human Trafficking Act.
SECTION 8. Section 97-29-49, Mississippi Code of 1972, is amended as follows:
97-29-49. (1) It shall be unlawful to engage in prostitution or to aid or abet prostitution or to procure or solicit for the purposes of prostitution, or to reside in, enter, or remain in any place, structure, or building, or to enter or remain in any vehicle or conveyance for the purpose of lewdness, assignation, or prostitution, or to keep or set up a house of ill-fame, brothel or bawdy house, or to receive any person for purposes of lewdness, assignation, or prostitution into any vehicle, conveyance, place, structure or building, or to permit any person to remain for the purpose of lewdness, assignation, or prostitution in any vehicle, conveyance, place, structure, or building, or to direct, take, or transport, or to offer or agree to take or transport, or aid or assist in transporting, any person to any vehicle, conveyance, place, structure, or building, or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking or transporting is prostitution, lewdness or assignation, or to lease or rent or contract to lease or rent any vehicle, conveyance, place, structure, or building, or part thereof, knowing or with good reason to know that it is intended to be used for any of the purposes herein prohibited, or to aid, abet, or participate in the doing of any of the acts herein prohibited.
(2) If it is determined that a person suspected of or charged with prostitution is a minor under eighteen (18) years of age, the minor shall be immune from prosecution for prostitution as a juvenile or adult and shall be subject to the protective custody of the Department of Human Services as a possible victim of child abuse or neglect. A law enforcement officer who takes a minor under eighteen (18) years of age into custody for suspected prostitution shall immediately report the suspected child abuse or neglect to the Department of Human Services as required in Section 43-21-353, and the department shall commence an initial investigation into the suspected child abuse or neglect, as required in Section 43-21-353.
(3) If it is determined that an adult person suspected of or charged with engaging in prostitution is a trafficked person, as defined in Section 97-3-54.4, the person shall be immune from prosecution for prostitution and shall be referred to appropriate resources for assistance.
(4) Investigation and prosecution of a defendant under this section shall not be construed to preclude prosecution of the defendant for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Protection from Human Trafficking Act, Section 97-3-54 et seq.
SECTION 9. Section 97-29-51, Mississippi Code of 1972, is amended as follows:
97-29-51. It shall further
be unlawful to procure * * * a female an inmate for a house of prostitution, or to
cause, induce, persuade, or encourage by promise, threat, violence, or by
scheme or device, a * * * person to become a prostitute or to remain an inmate of a
house of prostitution, or to induce, persuade, or encourage a * * *
person to come into
or leave this state for the purpose of prostitution, or to become an inmate in
a house of prostitution, or to receive or give, or agree to receive or give any
money or thing of value for procuring, or attempting to procure any * * *
person to become a
prostitute or an inmate in a house of prostitution, or to knowingly accept,
receive, levy or appropriate any money or other thing of value without
consideration from a prostitute or from the proceeds of any * * *
person engaged in
prostitution. Investigation and prosecution of a defendant under this
section shall not be construed to preclude prosecution of the defendant for a
violation of other applicable criminal laws, including, but not limited to, the
Mississippi Protection from Human Trafficking Act, Section 97-3-54 et seq.
SECTION 10. Section 97-29-53, Mississippi Code of 1972, is amended as follows:
97-29-53. Any person,
partnership, association or corporation violating any provision of * * * Section 97-29-49 or 97-29-51
shall, upon conviction, be punished by a fine not exceeding Two Hundred Dollars
($200.00) or by confinement in the county jail for not more than six (6)
months, or by both such fine and imprisonment, except that if the person
alleged to have been procured or solicited for prostitution, or aided or
abetted for the purpose of prostitution, was a minor under the age of eighteen
(18) at the time of the alleged offense, the offense shall be a felony
punishable by commitment to the custody of the Department of Corrections for
not more than six (6) years, and a fine of not more than Three Thousand Dollars
($3,000.00).
SECTION 11. Section 97-3-54, Mississippi Code of 1972, is amended as follows:
97-3-54. Sections 97-3-54 through 97-3-54.4 may be known and cited as the Mississippi Protection from Anti-Human Trafficking Act.
SECTION 12. Section 97-43-3, Mississippi Code of 1972, is amended as follows:
97-43-3. The following terms shall have the meanings ascribed to them herein unless the context requires otherwise:
(a) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit any crime which is chargeable under the following provisions of the Mississippi Code of 1972:
( * * *i) Section 97-19-71, which relates to
fraud in connection with any state or federally funded assistance programs.
( * * *ii) Section 75-71-735, which relates
to violations of the Mississippi Securities Act.
( * * *iii) Sections 45-13-105, 45-13-109, 97-37-23
and 97-37-25, which relate to unlawful possession, use and transportation of
explosives.
( * * *iv) Sections 97-3-19 and 97-3-21,
which relate to murder.
( * * *v) Section 97-3-7(2), which relates to
aggravated assaults.
( * * *vi) Section 97-3-53, which relates to
kidnapping.
( * * *vii) Sections 97-3-73 through 97-3-83,
which relate to robbery.
( * * *viii) Sections 97-17-19 through 97-17-37,
which relate to burglary.
( * * *ix) Sections 97-17-1 through 97-17-13,
which relate to arson.
( * * *x) Sections 97-29-49, 97-29-51 and 97-29-53,
which relate to prostitution.
( * * *xi) Sections 97-5-5 and 97-5-31
through 97-5-37, which relate to the exploitation of children and enticing
children for concealment, prostitution or marriage.
( * * *xii) Section 41-29-139, which relates
to violations of the Uniform Controlled Substances Law; provided, however, that
in order to be classified as "racketeering activity," such offense must
be punishable by imprisonment for more than one (1) year.
( * * *xiii) Sections 97-21-1 through 97-21-63,
which relate to forgery and counterfeiting.
( * * *xiv) Sections 97-9-1 through 97-9-77,
which relate to offenses affecting administration of justice.
( * * *xv) Sections 97-33-1 through 97-33-49,
which relate to gambling and lotteries.
(xvi) Sections 97-3-54 through 97-3-54.8, which relate to human trafficking.
(b) "Unlawful debt" means money or any other thing of value constituting principal or interest of a debt which is legally unenforceable, in whole or in part, because the debt was incurred or contracted in gambling activity in violation of state law or in the business of lending money at a rate usurious under state law, where the usurious rate is at least twice the enforceable rate.
(c) "Enterprise" means any individual, sole proprietorship, partnership, corporation, union or other legal entity, or any association or group of individuals associated in fact although not a legal entity. It includes illicit as well as licit enterprises and governmental, as well as other, entities.
(d) "Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one (1) of such incidents occurred after the effective date of this chapter and that the last of such incidents occurred within five (5) years after a prior incident of racketeering conduct.
SECTION 13. Section 97-5-7, Mississippi Code of 1972, is amended as follows:
97-5-7. Any person who shall persuade, entice or decoy away from its father or mother with whom it resides any child under the age of eighteen (18) years, being unmarried, for the purpose of employing such child without the consent of its parents, or one of them, shall upon conviction be punished by a fine of not more than Twenty Dollars ($20.00) or imprisoned in the county jail not more than thirty (30) days, or both. Investigation and prosecution of a defendant under this section shall not be construed to preclude prosecution of the defendant for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Protection from Human Trafficking Act, Section 97-3-54 et seq.
SECTION 14. Section 97-5-27, Mississippi Code of 1972, is amended as follows:
97-5-27. (1) Any person who intentionally and knowingly disseminates sexually oriented material to any person under eighteen (18) years of age shall be guilty of a misdemeanor and upon conviction shall be fined for each offense not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00) or be imprisoned for not more than one (1) year in the county jail, or be punished by both such fine and imprisonment. A person disseminates sexually oriented material within the meaning of this section if he:
(a) Sells, delivers or provides, or offers or agrees to sell, deliver or provide, any sexually oriented writing, picture, record or other representation or embodiment that is sexually oriented; or
(b) Presents or directs a sexually oriented play, dance or other performance or participates directly in that portion thereof which makes it sexually oriented; or
(c) Exhibits, presents, rents, sells, delivers or provides, or offers or agrees to exhibit, present, rent or to provide any sexually oriented still or motion picture, film, filmstrip or projection slide, or sound recording, sound tape or sound track or any matter or material of whatever form which is a representation, embodiment, performance or publication that is sexually oriented.
(2) For purposes of this section, any material is sexually oriented if the material contains representations or descriptions, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
(3) (a) A person is guilty of computer luring when:
(i) Knowing the character and content of any communication of sexually oriented material, he intentionally uses any computer communication system allowing the input, output, examination or transfer of computer data or computer programs from one (1) computer to another, to initiate or engage in such communication with a person under the age of eighteen (18); and
(ii) By means of such communication he importunes, invites or induces a person under the age of eighteen (18) years to engage in sexual intercourse, deviant sexual intercourse or sexual contact with him, or to engage in a sexual performance, obscene sexual performance or sexual conduct for his benefit.
(b) A person who engages in the conduct proscribed by this subsection (3) is presumed to do so with knowledge of the character and content of the material.
(c) In any prosecution for computer luring, it shall be a defense that:
(i) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor; or
(ii) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to the materials prohibited, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(iii) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; or
(iv) The defendant has in good faith established a mechanism such that the labeling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or to circumvent any such screening or blocking.
(d) In any prosecution for computer luring:
(i) No person shall be held to have violated this subsection (3) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
(ii) No employer shall be held liable for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency or the employer, having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly disregards such conduct.
(iii) The limitations provided by this paragraph (d) shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate such provisions, or who knowingly advertises the availability of such communications, nor to a person who provides access or connection to a facility, system or network engaged in the violation of such provisions that is owned or controlled by such person.
(e) Computer luring is a felony, and any person convicted thereof shall be punished by commitment to the custody of the Department of Corrections for a term not to exceed three (3) years and by a fine not to exceed Ten Thousand Dollars ($10,000.00).
(4) Investigation and prosecution of a defendant under this section shall not be construed to preclude prosecution of the defendant for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Protection from Human Trafficking Act, Section 97-3-54 et seq.
SECTION 15. Section 97-5-31, Mississippi Code of 1972, is amended as follows:
97-5-31. As used in Sections 97-5-33 through 97-5-37, the following words and phrases shall have the meanings given to them in this section:
(a) "Child" means any individual who has not attained the age of eighteen (18) years.
(b) "Sexually explicit conduct" means actual or simulated:
(i) Oral-genital
contact, oral-anal contact or * * * sexual
intercourse * * * as defined in Section 97-3-65, whether
between persons of the same or opposite sex;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse;
(v) Lascivious exhibition of the genitals or pubic area of any person; or
(vi) Fondling or other erotic touching of the genitals, pubic area, buttocks, anus or breast.
(c) "Producing" means producing, directing, manufacturing, issuing, publishing or advertising.
(d) "Visual depiction" includes without limitation developed or undeveloped film and video tape or other visual unaltered reproductions by computer.
(e) "Computer" has the meaning given in Title 18, United States Code, Section 1030.
(f)
"Simulated" means any * * * depiction of the genitals or
rectal areas that gives the appearance of sexual conduct or incipient sexual
conduct.
SECTION 16. Section 97-5-33, Mississippi Code of 1972, is amended as follows:
97-5-33. (1) No person shall, by any means including computer, cause, solicit or knowingly permit any child to engage in sexually explicit conduct or in the simulation of sexually explicit conduct for the purpose of producing any visual depiction of such conduct.
(2) No person shall, by any means including computer, photograph, film, video tape or otherwise depict or record a child engaging in sexually explicit conduct or in the simulation of sexually explicit conduct.
(3) No person shall, by any means including computer, knowingly send, transport, transmit, ship, mail or receive any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(4) No person shall, by any means including computer, receive with intent to distribute, distribute for sale, sell or attempt to sell in any manner any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(5) No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.
(6) No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.
(7) No person shall by any means, including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct.
(8) The fact that an undercover operative or law enforcement officer posed as a child or was involved in any other manner in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.
(9) For purposes of determining jurisdiction, the offense is committed in this state if all or part of the conduct described in this section occurs in the State of Mississippi or if the transmission that constitutes the offense either originates in this state or is received in this state.
(10) Investigation and prosecution of a defendant under this section shall not be construed to preclude prosecution of the defendant for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Protection from Human Trafficking Act, Section 97-3-54 et seq.
SECTION 17. This act shall take effect and be in force from and after July 1, 2013.
