Reforming the Mississippi Criminal Code Part II: Non-homicide

Mississippi College Law Review Mississippi College Law Review

Volume 38

Issue 3

Vol. 38 Iss. 3

Article 1

2020

Reforming the Mississippi Criminal Code Part II: Non-homicide Reforming the Mississippi Criminal Code Part II: Non-homicide

Crimes Against the Person Crimes Against the Person

Judith J. Johnson

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201

REFORMING THE MISSISSIPPI CRIMINAL CODE PART II:

NON-HOMICIDE CRIMES AGAINST THE PERSON

By Judith J. Johnson

I. INTRODUCTION

This is the second in a series of articles advocating for change to the

Mississippi criminal laws. The first article explained why change is

needed.

Briefly, our criminal laws have been justifiably criticized.

Some

of the shortcomings of the Mississippi law include sentencing disparity,

enabling defendants who have engaged in the same criminal conduct to

have widely disparate sentences. In addition, the Mississippi criminal laws

often have vague definitions of the conduct prohibited,

as well as

confusing or absent definitions of states of mind required to commit the

crime. The hallmark of a fair criminal justice system is that whatever is

forbidden is clearly defined in the criminal code. Finally, the criminal

statutes are disorganized and do not relate to each other.

The Mississippi Judicial Advisory Committee, established in 1993

by the legislature to improve the administration of justice,

appointed the

Criminal Code Consulting Group (hereinafter referred to as “the

Committee”) to suggest revisions to the penal code. The Committee has

been meeting since 1996 and is finally reaching the end of its charge and

* Professor of Law, Mississippi College School of Law. I want to thank all my

research assistants who have provided valuable support over the years to me and to the

Committee, especially my current research assistants Benjiman Blakely and Taylor

Pilger.

. Judith J. Johnson, Why Mississippi Should Reform Its Penal Code, 37 MISS.

C. L.REV. 107 (2019).

. Paul H. Robinson, Michael T. Cahill, and Usman Mohammed, The Five

Worst (and Five Best) American Criminal Codes, 95 Northwestern U. L. Rev. 1, 3 n.3

(2000) ranked the Mississippi Criminal Code as being the fifty-second worst criminal

code in the U.S. The study included the federal code and the D.C. code in their

assessments. Id.

. Many criminal statutes in Mississippi provide a range of decades as a

possible sentence, such as one year to thirty years. See Johnson, supra note 2, discussion

accompanying notes 60-63.

. See id. at discussion accompanying notes 67-72.

. See id. at discussion accompanying notes 72-76.

. MISS. CODE ANN. § 9-21-1 (1993 Cumulative Supplement). The Judicial

Advisory Study Committee was eliminated in 2018. H.B. 949 (2018). The Criminal

Code Consulting Group (the Committee) is now operating under the auspices of the

Mississippi Supreme Court.

202 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

will present its proposals to the legislature in the foreseeable future. This

Committee, which I have chaired for more than twenty years, is

recommending a comprehensive change to the laws to alleviate some of the

problems with the current code. The Committee proposals will improve the

administration of the criminal justice system by providing clear definitions

of the conduct prohibited and the states of mind required for the crimes,

which will also be clearly defined.

This second in a series of articles continues to present the case for

penal code reform. The purpose of these articles is to explain the

Committee’s reasoning and the proposed changes to the law. This series of

articles is intended to replace comments, which the Committee did not

write, although there are extensive comments to the Model Code Penal, on

which these proposals are based.

The first article introduced and explained the Committee’s process.

In addition, the first article explained two important substantive areas of

change: states of mind and homicide.

This article addresses the most

serious crimes against the person, other than homicide, and explains the

Committee’s recommendations regarding assault and battery and related

crimes, kidnapping and related crimes, and sex crimes.

Future articles

will explain the other groups of crimes and other issues that the Committee

has addressed.

Section II of this article briefly reviews the methodology of the

Committee’s work; Section III explains the proposed changes to assault and

battery and related offenses; Section IV explains the proposed changes to

kidnapping and related offenses; Section V explains the proposed changes

to sex crimes; and Section VI concludes.

II. COMMITTEE METHODOLOGY AND THE MODEL PENAL CODE

As described more fully in the first article,

the Committee has been

meeting since 1996 and consists of judges, prosecutors, defense attorneys,

legislative drafters, and law professors.

The Committee has reviewed the

. See Johnson, supra note 2, at V.1.

. Id. at II.

. Id. at V.1.

. Robbery, which is also a serious crime against the person, will be discussed

in the next article, along with arson and burglary.

. See Johnson, supra note 2, at II.

. Current committee members: Professor Judith J. Johnson, chair, Professor

Matthew Steffey, reporter, Judge Donna Barnes, Patrick Beasley, Judge John Emfinger,

Greta Harris, Caryn Quilter, Professor Ronald J. Ryclak, Kathy Sones, Alison Steiner, Ed

Snyder, and Gwynetta Tatum.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 203

most important parts of Title 97 of Mississippi Code of 1972, which

contains the principal criminal statutes, working to develop a penal code

that is more coherent and comprehensive than current law.

As explained in more detail in the first article,

at each monthly

meeting, we compare the Mississippi law to the relevant provisions of the

Model Penal Code (hereinafter “Model Code”), as well as to the laws of

other states.

We then propose changes to the Mississippi law to reflect

the needs of the state and the need for uniformity, both in the state code and

among the codes of other states. The Committee is currently reviewing all

the proposed changes it has adopted in preparation for compiling the results

for presentation to the Mississippi Legislature for its consideration.

The Committee based the proposed revisions on the Model Code,

which virtually all states that have reformed their penal codes have

Original Committee Members: Professor Judith Johnson, chair, Professor Matthew

Steffey, reporter, Judge Fred Banks, co-chair for some period of time, Judge Robert

Gibbs, who also co-chaired for some period of time, Judge Robert Bailey, James Craig,

Judge Bobby DeLaughter, Rusty Fortenberry, Tom Fortner, Buddy McDonald, Rob

McDuff, Bilbo Mitchell, Al Moreton, Professor Ronald J. Rychak, Ed Snyder, Kathy

Sones, Judge Leslie Southwick, Frank Trapp, Senator Bennie Turner, Judge Frank

Vollor, Professor Carol West, and Amy Whitten.

Others who have served on the Committee: Dewitt Allred, Judge George Carlson, Judge

Virginia Carlton, Judge Kay Cobb, Andre DeGruy, Judge Oliver Diaz, David Dykes,

Chris Klotz, Katie Lawrence, Frank McWilliams, Margarette Meeks, Faye Peterson,

Clarence J. Richardson, Judge Larry Roberts, Judge Keith Starrett, Robert Taylor,

Shondra Taylor-Legget, and Philip Weinberg.

Others who attended to help with specific issues: Drs. Phillip Meredith and Reb

McMichael, Professor Cecile Edwards, Judge John Hudson, and Dean Emeritus Jim

Rosenblatt. Judge Tom Broome also provided valuable input.

. The Committee has been meeting in Jackson at the Mississippi College

School of Law. The law school has furnished the meeting space and paid the research

assistant. In addition, the law school also furnished lunch for the committee for several

years under the leadership of Dean Jim Rosenblatt. We are very grateful for the support

of the law school during all these years. The Administrative Office of the Courts has also

furnished valuable support to the committee by sending out meeting notices and

providing lunch for the committee for several years.

. See Johnson, supra note 2, at II.

. See, e.g. infra note 275.

. The references to the minutes throughout usually reflect the Committee’s

most recent review of the statute, although the Committee may have originally adopted

the statute much earlier.

204 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

referenced.

The Model Code, discussed more fully in the first article,

serves as a measure of uniformity among the several codes. Two thirds of

the states have reformed their penal codes and used the Model Code as the

basis for their reforms.

Thus, although Mississippi comes late to the

process, it may draw from the experience of many other states that have

reformed their penal codes.

In addition to establishing some uniformity among criminal codes

and crimes, virtually all American law students are introduced to the Model

Code and its version of general definitions, as well as many of its crimes

and defenses.

Also, courts and commentators frequently cite the Model

Code as persuasive authority.

Finally, the drafters wrote extensive

comments, explaining the provisions of the Model Code in detail. Although

the comments will not be part of the legislation, lawyers, judges, and courts

often rely on the comments to interpret the Model Code provisions.

As noted, the Committee chose not to publish separate comments,

other than this series of articles, but to rely instead on the Model Code

comments where appropriate. This series of articles will serve to some

extent as comments, and the Committee approves each article before

publication.

. Gerald E. Lynch, Towards a Model Penal Code, Second (Federal?): The

Challenge of the Special Part, 2 BUFFALO CRIM. L. REV. 297 (1998).

The Model Code is among the most successful academic law reform projects

ever attempted. In the first two decades after its completion in 1962, more than two thirds

of the states undertook to enact new codifications of their criminal law, and virtually all

of those used the Model Penal Code as a starting point. Id. The Model Code was

developed by the American Law Institute and published in 1961 as a model for states to

reform their penal codes, which most states have done. See Gerald E. Lynch, Revising

the Model Penal Code: Keeping It Real, 1 OHIO ST. J. CRIM. L. 219, 297 (2003). The

American Law Institute (hereinafter “ALI”) was organized in 1923 to improve and

clarify the law. It consists of distinguished lawyers, judges, and professors. Herbert

Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68

COLUM. L. REV. 1425 (1968).

The American Law Institute is in the process of making some changes to the

Model Code, notably in the area of sex crimes. See, e.g., MODEL PENAL CODE Proposed

§§ 213.0-213.11 (A.L.I. 2015). The original draft of sex crimes was considered outdated

and unsatisfactory. See, e.g., Lynch, Revising the Model Penal Code: Keeping It Real,

supra at 230-31. The Committee also had to completely redraft the sex crimes sections,

which will be discussed infra. The core provisions of the Model Code, however, have

stood the test of time and there would be little to gain from changing them. See Lynch,

Towards a Model Penal Code, at 297.

. See Johnson, supra note 2, at III.

. Lynch, Towards a Model Penal Code, supra, note at 297.

. Id. at 297-98.

. Id.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 205

The Model Code divides crimes by seriousness and punishes them

accordingly. The Model Code recognizes three degrees of felonies,

which

the Committee expanded to four degrees.

Thus, murder is a felony in the

first degree,

along with aggravated forms of rape,

robbery,

and

kidnapping.

Manslaughter is a felony in the second degree,

along with

non-aggravated forms of rape,

robbery,

kidnapping,

and others.

Negligent homicide is a felony in the third degree,

along with non-

aggravated burglary, and crimes of similar seriousness.

The more serious

theft crimes were classified as felonies in the fourth degree,

along with

others.

. MODEL PENAL CODE § 6.01 (AM. LAW INST. 1985).

. Section 6.01. Minutes of the Consulting Grp. on Mississippi Criminal Code

Revision, (September 12, 2014) (hereinafter cited as “Minutes”) (on file with the author).

The Minutes are unpublished but may be accessed by applying to the author.

The proposed sentencing scheme for felonies is as follows:

§ 6.06. Sentence of Imprisonment for Felony

A person who has been convicted of a felony may be sentenced

to imprisonment, as follows:

(a) in the case of a felony of the first degree, for a term the

minimum of which shall be fixed by the Court at not less than

twenty one year nor more than ten years, and the maximum of

which shall be life imprisonment;

(b) in the case of a felony of the second degree, for a term the

minimum of which shall be fixed by the Court at not less than

ten one year nor more than three years, and the maximum of

which shall be ten twenty years;

minimum of which shall be fixed by the Court at not less than

1 year, at not less than one year nor more than two years, and

the maximum of which shall be five ten years;

(d) in the case of a felony of the fourth degree, for a term the

minimum of which shall be fixed by the Court, and the

maximum of which shall be five years.

. MODEL PENAL CODE § 210.2(2) (AM. LAW INST. 1985).

. Id. at § 213.1(1).

. Id. at § 222.1(2).

. Id. at § 212.1.

. Id. at § 210.3(2).

. Id. at § 213.1(1).

. Id. at § 222.1(2).

. Id. at § 213.1(1).

. Id. at § 210 (2).

. Id. at § 221.1(2).

. Minutes, supra note 26 (September 12, 2012).

. See, e.g., less serious forms of Criminal Mischief (Minutes, supra note 26

(December 2018)) and Obstruction (Minutes, supra note 26 (August 2019)); as well as

crimes such as Criminal Trespass, (Minutes, supra note 26 (September 2018)), Public

206 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

The Model Code recognizes misdemeanors but does not divide

them according to seriousness.

The Committee disagreed with this and

divided misdemeanors into four classes, A through D.

Finally, the Model

Code classifies regulatory offenses as violations,

which are not considered

true crimes and, thus, not criminal.

The Committee adopted the violation

category.

As noted, the first article discussed mens rea and the most serious

crimes against the person, the homicide crimes.

This article will continue

with the other crimes against the person: assault and battery and related

crimes, kidnapping and related offenses, and sex crimes.

First, I want to explain how I dealt with statutes in this article. If the

statute is relatively short, I put it in the text. If the statute is discussed fully

in the text, but is too long to put in the text, I put the statute in the footnotes

to avoid distracting the reader. Statutes that are long and not necessary to

understanding the text were added to the appendix. We used basically the

same numbers as the Model Code, even if we did not base the statute on the

Model Code. I am distinguishing the sections that were not based on the

Model Code by simply designating those with sections numbers. If I am

referring to the original version of the Model Code, I designated it as the

original version Model Code.

I otherwise noted changes from the Model

Code with underlining and underlined strikeouts. If we used the Mississippi

statute as the basis for the proposed statute, I indicated changes from the

Mississippi statute with italics and italicized strikeouts. I also drew

extensively on the Model Code comments, since these comments are very

helpful in understanding the rationale of the proposed statutes, especially

Drunkenness (Minutes, supra note 26 (March 2012)), and Disorderly Conduct (Minutes,

supra note 26 (March 2012)).

. MODEL PENAL CODE § 6.08 (AM LAW INST. 1985).

. See Minutes, supra note 26 (March 2012); (September 2014). The

sentencing scheme for misdemeanors and violations is as follows:

§ 6.08

(a) Sentences of misdemeanors shall be a definite term of imprisonment in the county jail

or to hard labor for the county, within the following limitations:

(1) For a Class A misdemeanor, not more than one year.

(2) For a Class B misdemeanor, not more than six months.

(3) For a Class C misdemeanor, not more than three months.

(4) For a Class D misdemeanor, not more than one month.

(b) A violation is punished by a fine of not more than $200 $250.

. Id. MODEL PENAL CODE § 1.04.5 (AM LAW INST. 1985).

. See Johnson, supra note 2, at 113.

. See Minutes, supra note 26 (August 2014).

. See Johnson, supra note 2, at V.

. I neglected to do this in the first article, using the Model Code designation

throughout.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 207

when we did not make many changes to the Model Code version. We will

begin with assault, which we adopted from the Model Code.

III. ASSAULT AND BATTERY AND RELATED CRIMES

A. Assault

Article 211 of the Model Code deals with bodily injury that does

not result in homicide, as well as situations in which bodily injury is

threatened or risked.

These crimes are assault,

reckless endangerment,

and terroristic threats.

The Committee adopted the Model Code’s version

of assault with few changes. Although we did make some additions, there

is no need to separately analyze the version the Committee is proposing and

the Model Code. Mississippi actually based its current assault statute on

the Model Code, adding some enhancements for assaulting designated

public officials, as well as other situations,

which the Committee retained

. See MODEL PENAL CODE Art. 211 cmt. at 170 (AM. LAW INST. 1980).

. See MODEL PENAL CODE § 211.1 (AM. LAW INST. 1985).

. See id. at § 211.2.

. See id. at § 211.3.

. This is the version of § 211.1 adopted by the Committee. Again, the regular

text is the Model Code language, while the underlined portions are additions or changes

to the Model Code. The italicized portions were taken from the Mississippi Code. See

MISS. CODE ANN. § 97-3-7. This statute is also reproduced in Appendix C.

(1) Simple Assault. A person is guilty of assault if he:

(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury

to another; or

(b) criminally negligently causes bodily injury to another with a deadly weapon;

bodily injury.

Simple assault is a Class A misdemeanor, except that Simple Assault is a Felony in the

Fourth Degree if committed in the following circumstances against the following

persons:

(a) When acting within the scope of his duty, office or employment at the time of

the assault: a statewide elected official; law enforcement officer; fireman;

emergency medical personnel; public health personnel; social worker, family

protection specialist or family protection worker employed by the Department

of Human Services or another agency; Division of Youth Services personnel;

any county or municipal jail officer; superintendent, principal, teacher or other

instructional personnel, school attendance officer or school bus driver; any

member of the Mississippi National Guard or United States Armed Forces; a

judge of a circuit, chancery, county, justice, municipal or youth court or a judge

of the Court of Appeals or a justice of the Supreme Court; district attorney or

legal assistant to a district attorney; county prosecutor or municipal

prosecutor; court reporter employed by a court, court administrator, clerk or

208 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

as well.

The Committee also added a domestic violence statute, patterned

on the Mississippi statute, which had been adopted by the legislature.

The

Committee further included the Model Code definitions—which

Mississippi has not adopted—remedying the problem of undefined terms in

the Mississippi statute.

Assault

and battery,

at common law, were originally simple

misdemeanors.

Similarly, at early common law, attempt to commit any

crime was a misdemeanor.

This idea of punishing all attempts as

misdemeanors was carried over into American jurisdictions, in which

attempt was often not punished with significant severity.

Thus, at one

deputy clerk of the court; public defender; or utility worker; or

(b) A legislator while the Legislature is in regular or extraordinary session or

while otherwise acting within the scope of his duty, office or employment; or

vulnerable person, as defined in Section 43-47-5; or

(d) A child who is in the process of boarding or exiting a school bus and the

actor is in the course of a violation of Section 63-3-615.

(2) Aggravated Assault. A person is guilty of aggravated assault if he:

(a) attempts to cause a serious bodily injury to another, or causes such injury

purposely, knowingly, or recklessly under circumstances manifesting extreme

indifference to the value of human life; or

(b) attempts to cause or purposely or knowingly causes bodily injury to another

with a deadly weapon.

Aggravated assault under paragraph (a) is a felony of the second degree; aggravated

assault under paragraph (b) is a felony of the third degree.

See Minutes, supra note 26 (April 2018).

. See Id. italicized portion of the statute.

. Section 211.X. See Appendix A for the complete statute. This statute was

taken from the Mississippi assault statute, MISS. CODE ANN. § 97-3-7, which should

otherwise be repealed. See Appendix C. I am not going to explain in detail current law in

Mississippi that the Committee adopted. I will focus instead on the changes to

Mississippi law that the Committee is proposing.

. However, the court has recommended in Fleming v. State, 604 So. 2d 280,

293 (Miss. 1992), that the courts look at the Model Code’s definition of “serious bodily

injury.” Although the Model Code defines bodily injury to require “physical pain, illness

or any impairment,” Mississippi has no definition of “bodily injury,” which could lead to

confusion. In Reining v. State, 606 So. 2d 1098, 1103 (Miss. 1992), for example, the

court said that “although there are no degrees of bodily injury stated in the statute, a

minor injury is a ‘bodily injury’ even though it may not be a traumatic injury.”

. See MODEL PENAL CODE Art. 211 cmt. at 176 (AM. LAW INST. 1980).

. See id. at 175. The ALI decided to use the term assault to cover all of the

conduct proscribed, although many of the situations are more accurately termed batteries

because this is the traditional term for such criminal conduct. The ALI also considered

that since assault is the more familiar term, keeping the familiar terminology would

enhance the acceptability of the Model Code. See id. at 174-75 n.1.

. See id.at 175 (battery); see also id. at 180 (assault).

. MODEL PENAL CODE Art. 211 cmt. at 213 n. 13 (AM. LAW INST. 1980).

. See generally WAYNE R. LAFAVE, CRIMINAL LAW § 11.2(a) (5th ed. 1986).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 209

time, a defendant could get the death penalty for rape but could be charged

only with a misdemeanor for an attempted rape.

In addition, attempt

required the defendant to come very close to commission of the target

offense.

The Model Code’s version of attempt, which the Committee

adopted,

corrects both problems, punishing attempt as severely as the

crime intended in most cases and requiring only a substantial step that

strongly corroborates the defendant’s intent, rather than requiring the

defendant to be close to success.

Because attempt at common law was a

misdemeanor, various versions of aggravated assault were devised by

legislation to punish more seriously such crimes as attempted murder and

attempted rape.

Because attempt is punished more severely under the

Model Code, there is no longer the same need for aggravated assault.

Nevertheless, assault under the Model Code was still divided into simple

and aggravated assault, but without the pressing need to fill in the gap left

by the earlier practice of punishing all attempts as misdemeanors.

1. Simple Assault

Simple assault combines three related ideas, including common law

assault, common law battery, and assault under the definition derived from

torts, which is creating apprehension of a battery.

Simple assault is

defined as: (1) attempting to cause or “purposely, knowingly, or recklessly”

causing bodily injury to another;

(2) negligently causing “bodily injury to

another with a deadly weapon,”

or (3) attempting “by physical menace to

put another in fear of imminent serious bodily injury.”

The common law defined assault as attempt to commit a battery.

Thus, under the Model Code, the first kind of assault, attempting to cause

bodily injury, is derived from attempting to commit a battery; however, the

drafters did not believe that attempt to cause merely an offensive touching,

which was sufficient for common law battery, should be sufficient for

. MODEL PENAL CODE Art. 211 cmt. at 304 (AM. LAW INST. 1980).

. Id. at 184.

. See Minutes, supra note 26 (October, November 1996).

. MODEL PENAL CODE § 5.01 (AM. LAW INST. 1985).

. See MODEL PENAL CODE Art. 211 cmt. at 181-82.

. See id.

. See infra discussion accompanying notes 70-94.

. MODEL PENAL CODE § 211.1(1)(a) (AM. LAW INST. 1985).

. Id. Section 211.1(1)(b).

. Id. Section 211.1(1)(c).

. See generally LAFAVE, supra note 58 at § 16.1(a).

210 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

criminal liability.

Consequently, the Model Code requires that the

defendant attempt to cause bodily injury, which the Model Code defines as

“physical pain, illness or any impairment of physical condition.”

The

Committee adopted this definition.

While under the common law, it was

possible that threatening to spit on another would be sufficient to be an

assault, under the Model Code, this would not be sufficient. Other forms

of offensive touching that do not constitute bodily injury are treated

elsewhere.

In addition, the Model Code does not require that assault be closer

than other attempts to the completion of the target crime of battery, as

required by the common law,

by applying the general attempt statute to

assault.

Attempt is defined in section 5.01 of the Model Code as

purposely taking a substantial step that strongly corroborates the

defendant’s intent.

Thus, assault will now include preparatory conduct

that should be intercepted.

Under this definition, the prior prevailing view

. See MODEL PENAL CODE Art. 211 cmt. at 185 (AM. LAW INST. 1980).

. MODEL PENAL CODE § 211.0(2) (AM. LAW INST. 1985).

These are the definitions adopted by the Committee for this section. They are virtually

unchanged from the proposed Model Code definitions. The stricken portion represents

the only change:

§ 211.0. Definitions

In this Article, the definitions given in § 210.0 apply unless a different meaning plainly is

required.

§ 210.0. Definitions.

In Articles 210-213, unless a different meaning plainly is required:

(1) “human being” means a person who has been born and is alive;

(2) “bodily injury” means physical pain, illness or any impairment of physical

condition;

(3) “serious bodily injury” means bodily injury that creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ;

(4) “deadly weapon” means any firearm or other weapon, device, instrument,

material or substance, whether animate or inanimate, which in the manner it is used or is

intended to be used is known to be capable of producing death or serious bodily injury.

See Minutes, supra note 26 (April 2018). These definitions were inadvertently left out of

the previous article that included the homicide crimes, to which these definitions also

apply.

. Id.

. Such conduct may, for example, be dealt with as disorderly conduct under §

250.2 or as harassment under § 250.4. See MODEL PENAL CODE Art. 211 cmt. at 185

(AM. LAW INST. 1980).

. See id. at 184.

. See id.

. MODEL PENAL CODE § 5.01 (AM. LAW INST. 1985).

. MODEL PENAL CODE Art. 211 cmt. at 185 (AM. LAW INST. 1980).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 211

that the defendant had to have the present ability to carry out the battery is

consequently also not required.

In keeping with tradition, the Model Code does not use the term

“battery,” but conduct that would be battery, is termed assault.

Therefore,

the second form of simple assault is “purposely, knowingly or recklessly”

causing “bodily injury to another.”

This conduct would be simple battery

under the common law,

except that battery under the common law could

be committed if the defendant was criminally negligent.

The Model Code

drafters thought that causing bodily injury through criminal negligence,

which requires only an objective standard, was insufficiently culpable to be

criminal. The thought is that if the defendant inadvertently caused bodily

injury, he should not be criminally liable.

Thus, if the defendant was

criminally negligent in causing only bodily injury, he must be using a

deadly weapon to be guilty of assault.

As fully discussed in my first article, although the Model Code uses

the term “negligence” throughout, the definition of “negligence” comports

with the definition of criminal negligence.

This is a major defect in the

Model Code that the Committee and other states have rectified by using the

term “criminal negligence” instead of merely “negligence.”

Finally, because most states incorporated the tort definition of

assault into their criminal laws, the drafters of the Model Code added a third

definition of simple assault. Under this definition, the defendant is guilty

of simple assault if he “attempts by physical menace to put another in fear

of imminent serious bodily injury.”

The drafters believed that because

assuming a threatening posture is too common and equivocal, the threat

required should be “serious bodily injury.”

Also, the drafters believed

. Id. at 192.

. Id. at 176 n.14. “The [Model Code] offense was then renamed ‘assault’ on

the grounds that use of the familiar term would enhance acceptability of the Model Code

proposals and that the offense as redefined was more in accord with common usage of

that term.” Id. at 175.

. MODEL PENAL CODE § 211.1 (1)(a) (AM. LAW INST. 1985).

. MODEL PENAL CODE Art. 211 cmt. at 184 (AM. LAW INST. 1980).

. See generally LAFAVE, supra note 58 § 16.2(C).

. See MODEL PENAL CODE Art. 211 cmt. at 189 (AM. LAW INST. 1980).

. MODEL PENAL CODE § 211.1(1)(b) (AM. LAW INST. 1985).

. MODEL PENAL CODE § 2.02(2)(d) (AM. LAW INST. 1985).

. See Johnson, supra note 2, discussion accompanying notes 111-113. It

should be noted that Mississippi adopted the Model Code’s version of assault and

retained the language of the Model Code relating to negligence without defining it as

criminal negligence. See MISS. CODE ANN. § 97-3-7. This statute is also reproduced in

Appendix C.

. MODEL PENAL CODE § 211.1(1)(c) (AM. LAW INST. 1985).

. See MODEL PENAL CODE Art. 211 cmt. at 192-93 (AM. LAW INST. 1980).

212 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

that merely physically menacing bodily injury, which is defined in part as

“physical pain,” could be too trivial to be criminalized.

The Committee

agreed with this position, so that physically menacing bodily injury is

insufficient, and that serious bodily injury should be threatened.

If the

defendant actually intends to cause bodily injury, he will be guilty of assault

under the first subsection.

In addition he may also be guilty of the felony

of terroristic threatening under Section 211.3.

Other situations involving

verbal, rather than physical menace, may constitute other crimes, such as

attempted robbery.

The Committee did make two changes to the Model Code’s version

of simple assault. One was the addition of enhanced punishments based on

official status and other circumstances of the victim, which was preferred

by the legislature in the current statute.

The second change was to

eliminate some of the following: The Model Code added to simple assault

that “simple assault is a misdemeanor, unless committed in a fight or scuffle

entered into by mutual consent, in which case, it is a petty misdemeanor.”

The Committee proposes that the italicized portion not be included.

addition, the Committee classified assault as a Class A misdemeanor,

except for the victim status enhancements noted above, which would be

fourth degree felonies.

The following forms of aggravated assault are

classified as felonies.

2. Aggravated Assault

Even though the need for aggravated forms of assault is not as

pressing under the Model Code proposals because of the more serious

punishment for attempt as discussed above,

there is still a need for some

forms of aggravated assault not covered by attempt to commit other violent

felonies.

Thus, the Model Code punishes attempting to “cause serious

bodily injury” or causing “such injury purposely, knowingly or recklessly

under circumstances manifesting extreme indifference to the value of

. Id.

. See Minutes, supra note 26 (April 2018).

. See supra note 50.

. See MODEL PENAL CODE § 211.3 (AM. LAW INST. 1985), discussed infra

Section III. C.

. See MODEL PENAL CODE Art. 211 cmt. at 193 (AM. LAW INST. 1980).

. See supra note 50; Minutes, supra note 26 (January 2020).

. Minutes, supra note 26 (April 2018).

. See supra note 50.

. See supra discussion accompanying notes 57-65.

. See infra discussion accompanying notes 100-112.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 213

human life” as aggravated assault, a second degree felony.

The attempt

to “cause or purposely or knowingly” causing “bodily injury to another with

a deadly weapon” is classified as a third degree felony.

100

It is obvious that attempting to inflict serious bodily injury should

be an aggravating factor for simple assault of the attempted-battery type,

which only requires attempted bodily injury. It is also clear that causing

such injury should be an aggravating factor for simple assault of the type

that would otherwise be simple battery under the common law.

101

Similarly, “causing bodily injury with a deadly weapon” is a common

aggravation in statutory forms of aggravated assault.

102

However, causing

such injury “purposely, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life” requires some

explanation.

This explanation begins with the definition of murder under the

Model Code, which includes criminal homicide committed purposely,

knowingly, or recklessly under circumstances manifesting extreme

indifference to the value of human life.

103

Because attempt requires that

the defendant act purposefully, the only type of murder that may be

attempted is purposeful murder.

104

The other forms of murder that require

only knowledge or extreme recklessness may not be punished as attempt.

105

Thus, the common law result would be that one who was acting extremely

recklessly and brought about the death of a person was guilty of a serious

felony. However, one with the exact same state of mind whose victim did

not happen to die was guilty of misdemeanor battery, if the victim was

injured. If the victim was not injured, the actor would be not be guilty of

any crime.

106

Therefore, the Model Code has filled an important gap by

punishing as a second degree felony conduct that results in serious bodily

injury, when the defendant is acting with the state of mind required for

murder but is not acting purposefully.

107

As noted, a deadly weapon is a common aggravating factor, so when

the defendant attempts to cause bodily injury with a deadly weapon, he is

. MODEL PENAL CODE § 211.1(2)(a) (AM. LAW INST. 1985).

100

. Id. at § 211.1(2)(b).

101

. See supra discussion accompanying notes 54-57.

102

. MODEL PENAL CODE Art. 211 cmt. at 191 (AM. LAW INST. 1980).

103

. MODEL PENAL CODE § 210.1(1). See Johnson, supra note 2, at n.183.

104

. See generally LAFAVE, supra note 58 at § 11.3(a) (5th ed. 1986).

105

. Id.

106

. MODEL PENAL CODE Art. 211 cmt. at 189 (AM. LAW INST. 1980). The

person who shoots at random into a crowd and does not injure anyone will be guilty of

reckless endangerment. See infra discussion accompanying notes 120-26.

107

. Id.

214 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

guilty of a third degree felony.

108

“Deadly weapon” is defined by the Model

Code as “any firearm or other weapon, device, instrument, material or

substance, whether animate or inanimate, which in the manner it is used or

is intended to be used is known to be capable of producing death or serious

bodily injury.”

109

The Committee adopted this definition but eliminated the

requirement that the weapon “be known to be” capable of producing death

or serious bodily injury.

110

The Model Code broadly defined deadly

weapon to account for various instruments that a defendant might choose

to bring about the bad result, such as automobiles, poisons, chemicals,

explosives, as well as the obvious, guns and knives.

111

As discussed above, the Mississippi legislature added various other

aggravating factors that the Committee incorporated into the statute,

including assault against public officials or a child boarding a school bus.

112

Finally, as noted earlier, the legislature passed a separate domestic violence

statute that the Committee retained as a separate statute, making no

changes, except to conform the punishment to the Committee’s version of

the Model Code penalties.

113

The two other offenses in Article 211 fill in gaps left in the common

law, which were only partially filled by specific statutes.

114

Section 211.3,

terroristic threats,

115

penalizes serious behavior that went unpunished under

the common law because it was not considered an assault or an attempt

under the common law.

116

Section 211.2, reckless endangering, covers

other possible situations in which the defendant could recklessly endanger

another, other than reckless driving or reckless use of firearms, which were

commonly specifically proscribed.

117

B. Reckless Endangering

Prior to the Model Code, only discrete forms of reckless behavior

not resulting in injury were commonly criminalized, such as driving

recklessly and reckless use of firearms.

118

Some states added more

108

. MODEL PENAL CODE § 211.1(2)(b) (AM. LAW INST. 1985).

109

. Id. at § 210.0(4) (AM. LAW INST. 1985).

110

. Minutes, supra note 26 (April, 2018).

111

. MODEL PENAL CODE Art. 211 cmt. at 191 (AM. LAW INST. 1980).

112

. Minutes, supra note 26 (January 2020).

113

. Section 211.X Domestic Violence. See Appendix A for the full statute.

MISS. CODE ANN. § 97-3-7 would be repealed by the foregoing. See Appendix C.

114

. MODEL PENAL CODE Art. 211 cmt. at 195 (AM. LAW INST. 1980).

115

. MODEL PENAL CODE § 211.3 (AM. LAW INST. 1985).

116

. MODEL PENAL CODE Art. 211 cmt. at 195-96 (AM. LAW INST. 1980).

117

. MODEL PENAL CODE § 211.2 (AM. LAW INST. 1985).

118

. MODEL PENAL CODE Art. 211 cmt. at 195 (AM. LAW INST. 1980).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 215

categories, such as dropping objects from bridges and placing an

obstruction on a railroad track.

119

The Model Code replaces such statutes

with a general prohibition of any reckless conduct that places another in

danger of death or serious bodily injury. The Committee adopted the

following version of reckless endangering:

§ 211.2. Recklessly Endangering Another Person.

A person commits a Class A misdemeanor if he recklessly engages

in conduct that which places or may place another person in danger

of death or serious bodily injury. Recklessness and danger shall be

presumed where a person knowingly points a firearm at or in the

direction of another, whether or not the actor believed the firearm

to be loaded.

120

The Model Code added a presumption of recklessness when the defendant

merely aims a firearm at another person.

121

If harm actually results, the

defendant would be guilty of assault

122

or manslaughter, depending on the

severity of the result.

123

Obviously, the defendant who acts with a reckless

state of mind that would have resulted in a felony, if the criminally

proscribed result had occurred, should be criminally liable even if the result

does not occur. The crime is a broad catchall, so the Committee classified

it as a Class A misdemeanor.

124

In addition to reckless endangering, the Model Code filled another

gap regarding threats to commit a crime to intimidate a person or the general

public by developing the new crime of “terroristic threats.”

125

C. Terroristic Threats

Section 211.3 deals with situations in which the defendant threatens

to commit a crime of violence in order to terrorize another person or a group

of persons. The section applies to serious threats that impair public order

or personal security.

126

Prior law usually covered only criminal coercion,

which is also proscribed generally in section 215.5,

127

or crimes that are

119

. Id. at 195-96.

120

. MODEL PENAL CODE §211.2 (AM. LAW INST. 1985).

121

. Id.

122

. See supra note 50.

123

. If the incident resulted in the death, the defendant would be guilty of

reckless manslaughter. See Johnson, supra note 2, at V. B.2 (c).

124

. MODEL PENAL CODE Art. 211 cmt. at 200-02 (AM. LAW INST. 1980).

125

. MODEL PENAL CODE § 211.3 (AM. LAW INST. 1985).

126

. MODEL PENAL CODE Art. 211 cmt. at 205 (AM. LAW INST. 1980).

127

. MODEL PENAL CODE § 215.5 (AM. LAW INST. 1985).

216 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

designed to force the victim to engage in prescribed behavior.

128

For

example, robbery requires a threat of violence to compel theft,

129

and

extortion requires a threat that also may include a threat of violence.

130

Both of these crimes are also covered specifically in the Model Code.

131

Prior law, however, did not proscribe a threat simply for the purpose of

terrorizing, which is the purpose of terroristic threats under section 211.3.

132

A terroristic threats charge is designed to punish the person who

makes phone calls or writes letters to incite fear and distress in the victim,

rather than to extort money. In addition, the crime covers the situation in

which the defendant makes the threat to cause evacuation of a public place

and to cause serious alarm and inconvenience, regardless of whether the

defendant intends to carry out the threat.

133

The Committee made some changes to the Model Code’s

proposal.

134

The underlined portions were added by the Committee, and

the stricken portions were deleted from the original Model Code version:

§ 211.3. Terroristic Threats

A person is guilty of a felony of the third degree if he

explicitly or implicitly threatens to commit any crime of

violence serious bodily injury, kidnapping or arson with

purpose to terrorize another or to cause evacuation of a

building, place of assembly, or facility of public

transportation, or otherwise to cause serious public

inconvenience, or in reckless disregard of the risk of causing

such terror or inconvenience.

135

The Committee added the language “explicitly or implicitly” to

cover a threat such as “I know where your children are,” which is an

implicit, but not an explicit, threat. The Committee believed that for the

defendant to be liable, he should not have to specify a crime to the victim,

128

. MODEL PENAL CODE Art. 211 cmt. at 205 (AM. LAW INST. 1980).

129

. Id.

130

. Id. The Committee is proposing to include extortion as a type of robbery.

See Minutes supra note 26 (August 2020).

131

. MODEL PENAL CODE §§ 221.1 and 223.4. Sex crimes discussed infra at V.

also may involve threats.

132

. MODEL PENAL CODE Art. 211 cmt. at 205 (AM. LAW INST. 1980).

Mississippi actually does have a threatening letter statute, but the punishment makes it a

misdemeanor. MISS. CODE ANN. § 97-3-85. This statute would be replaced by the

Terroristic Threats statute. See infra discussion accompanying note 136.

133

. MODEL PENAL CODE Art. 211 cmt. at 207 (AM. LAW INST. 1980).

134

. Minutes, supra note 26 (June 2018).

135

. MODEL PENAL CODE § 211.3 (AM. LAW INST. 1985).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 217

but only make an implicit threat.

136

We also defined the crimes that would

be subject to the threat requirement to preclude inclusion of a threat to

commit a simple assault, which would not be serious enough to justify

punishment for a third degree felony.

137

Finally, the defendant does not

have to intend to terrorize but must only act “in reckless disregard of

causing such terror or inconvenience.”

138

If the victim is restrained in order

to terrorize him, the crime would relate to kidnapping and related crimes,

which we will discuss next.

IV. KIDNAPPING AND RELATED CRIMES

Article 212 of the Model Code was intended to restructure the law

of kidnapping.

139

The main problem with many kidnapping laws, as

exemplified by the current Mississippi law,

140

is that the laws are too broad,

imposing severe penalties for what could be trivial conduct.

141

For this

reason, the Model Code divided kidnapping and related offenses into

crimes of diminishing seriousness, from section 212.1, which may be a first

degree felony; to felonious restraint in section 212.2, which is a third degree

felony; to false imprisonment, which is a misdemeanor.

142

Article 212 also

includes the related crimes of interference with custody in section 212.4

and criminal coercion in section 212.5.

143

The Committee changed the Model Code’s term “kidnapping”

under section 212.1 to “Aggravated Kidnapping” and rearranged the

136

. Minutes, supra note 26 (April 2018). This statute would replace the

following Mississippi statute:

§ 97-3-85. Threats and intimidation; by letter or notice

If any person shall post, mail, deliver, or drop a threatening

letter or notice to another, whether such other be named or

indicated therein or not, with intent to terrorize or to

intimidate such other, he shall, upon conviction, be punished

by imprisonment in the county jail not more than six months,

or by fine not more than five hundred dollars, or both.

The Committee is still working on an internet bullying and assisted suicide statute.

137

. See supra note 26.

138

. MODEL PENAL CODE § 211.3 (AM. LAW INST. 1985).

139

. MODEL PENAL CODE Art. 212 cmt. at 210 (AM. LAW INST. 1980).

140

. See infra discussion accompanying notes 177-81.

141

. MODEL PENAL CODE Art. 212 cmt. at 210 (AM. LAW INST. 1980).

142

. MODEL PENAL CODE Art. 212 cmt. at 217 (AM. LAW INST. 1980).

143

. The Committee had added Interstate Removal of a Child Under Age

Fourteen by Noncustodial Parent or Relative but decided that since this statute was part

of a uniform law, we would delete it in favor of the current Mississippi scheme. MISS.

CODE ANN. § 97-3-51. Compare Minutes, supra note 26 (October 1998) with Minutes,

supra note 26 (June 2018).

218 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

statute, as will be noted below.

144

However, the basic concept of the Model

Code’s most serious kidnapping offense was retained.

145

The Committee

also designated section 212.2 as simply “kidnapping,” again retaining the

Model Code’s basic idea expressed in the original version of section 212.2,

which the Model Code termed “felonious restraint.”

146

A. Kidnapping (Aggravated Kidnapping)

Section 212.1 of the Model Code defines the most serious offense

as kidnapping,

147

which, as noted, the Committee re-named “aggravated

kidnapping.”

148

This most serious form of kidnapping involves substantial

removal or confinement for specified purposes: to hold for ransom or

reward, to interfere with the performance of a governmental function, to

inflict bodily injury or to terrorize anyone, or to facilitate the commission

of a felony.

149

The removal or confinement must be by “force, threat or

144

. The Committee adopted the following:

Section 212.0 Definitions

1) In this article, the definitions given in Section 210.0 apply unless a different

meaning plainly is required.

2) For purposes of this Article, “unlawful” or “unlawfully” refers to any

affirmative violation of legal duty, whether it amounts to a violation of the

criminal law, civil law, or administrative regulation.

Minutes, supra note 26 (August 2019). See supra note 72 for the definitions in Section

210.0 that apply.

145

. Minutes, supra note 26 (June 2018).

146

. Id.

147

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

148

. Minutes, supra note 26 (June 2018).

149

. This is the original Model Penal Code version:

§ 212.1 Kidnapping. A person is guilty of kidnapping if he

unlawfully removes another from his place of residence or

business, or a substantial distance from the vicinity where he is

found, or if he unlawfully confines another for a substantial

period in a place of isolation, with any of the following

purposes:

(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter;

another; or

(d) to interfere with the performance of any governmental or

political function.

Kidnapping is a felony of the first degree unless the actor

voluntarily releases the victim alive and in a safe place prior to

trial, in which case it is a felony of the second degree. A

removal or confinement is unlawful within the meaning of this

section if it is accomplished by force, threat or deception, or, in

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 219

deception (or in the case of a person who is under the age of fourteen or

incompetent, without consent of a parent, guardian or other person

responsible for general supervision of his welfare).”

150

Under the Model

Code, kidnapping is a felony of the first degree unless the victim is

voluntarily released without serious bodily injury prior to trial. If not,

kidnapping is a felony of the second degree.

151

The Committee agreed with

most of the Model Code’s ideas, but rearranged, re-named, and re-worded

the statute as follows:

Section 212.1 Aggravated Kidnapping.

A person is guilty of aggravated kidnapping if, by force,

threat or deception (or in the case of a person who is under

the age of 14 or incompetent, without consent of a parent,

guardian or other person responsible for general supervision

of his welfare) he:

(a) confines or removes another to hold for ransom

or reward, or as a shield or hostage; or

(b) removes another from his place of residence or

business, or moves him a substantial distance from

the vicinity where he is found, or confines another for a

substantial period in a place of isolation, with any of the

following purposes:

(1) to facilitate commission of any felony or

flight thereafter; or

(2) to inflict serious bodily injury on or to

terrorize the victim or another.

Aggravated Kidnapping is a felony of the first degree unless

the defendant establishes, as an affirmative defense, that the

defendant voluntarily released the victim without serious

bodily injury in a safe place prior to trial, in which case it is

a felony of the second degree. That the defendant voluntarily

released the victim without serious bodily injury and in a

safe place prior to trial mitigates aggravated kidnapping

the case of a person who is under the age of 14 or incompetent,

if it is accomplished without the consent of a parent, guardian

or other person responsible for general supervision of his

welfare.

MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

150

. MODEL PENAL CODE Art. 211 cmt. at 223-24 (AM. LAW INST. 1980).

151

. Id. at 227.

220 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

from a first degree felony to a second degree felony and need

not be proven in any prosecution under this section.

152

At noted above, one of the main deficiencies in the then-current

statutes cited by the drafters of the Model Code was that kidnapping could

apply to trivial conduct that amounted to some exercise of physical control

over another person, such as a situation in which a defendant merely held

another person by the arm to make a point.

153

Thus, what would otherwise

be kidnapping was divided into three separate crimes, punishing less

serious forms of physical restraint more proportionately. The challenge

was to distinguish this other less serious conduct from kidnapping.

154

One of the important innovations of the Model Code was to confine

kidnapping to specified purposes. In addition to requiring that the

defendant use force, threat, or deception,

155

the defendant must also remove

the victim with a purpose to: (a) to hold the victim for ransom or reward, or

as a shield or hostage, or (b) to facilitate commission of any felony or flight

thereafter, or (c) to inflict bodily injury on or to terrorize the victim or

another, or (d) to interfere with the performance of any governmental or

political function.

156

The Committee adopted purposes (a) through (c), but

did not adopt subsection (d) for reasons discussed below.

157

Another problem with earlier kidnapping statutes that had been

developed in this country was derived from substantially weakening or

eliminating the common law requirement of asportation or moving the

victim. Under these statutes, kidnapping could be charged in any type of

unlawful physical control of another, such as in the case of rape.

158

The

need for removing the asportation requirement might have been caused by

inadequacies in the law of attempt, as discussed with regard to the assault

crimes.

159

To summarize the earlier discussion, at common law, attempt to

commit any crime was a misdemeanor.

160

The Model Code’s version of

attempt punishes attempt as severely as the crime intended in most cases.

Attempt under the Model Code also requires only that the defendant’s act

152

. Minutes, supra note 26 (June 2018). Compare this version with the Model

Code version cited supra note 150.

153

. MODEL PENAL CODE Art. 212 cmt. at 220 (AM. LAW INST. 1980).

154

. Id.

155

. Or, in the case of a child under fourteen or an incompetent person, without

consent of the parent or guardian. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

156

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

157

. See infra discussion accompanying note 167.

158

. MODEL PENAL CODE Art. 211 cmt. at 212 (AM. LAW INST. 1980).

159

. See supra discussion accompanying notes 57-63.

160

. MODEL PENAL CODE Art. 212 cmt. at 213 (AM. LAW INST. 1980).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 221

be a substantial step to be sufficient for attempt, rather than requiring the

defendant to be close to success.

161

Therefore, using kidnapping to punish

behavior that is preparation for another crime is no longer necessary.

162

The Committee agreed with the idea that kidnapping should

contemplate unlawful substantial removal or confinement with regard to the

other specified purposes, but thought that “holding for ransom and using as

a shield” should be treated as aggravated kidnapping without requiring that

the victim be moved a substantial distance.

163

Thus, if the defendant

removes or confines the victim to hold him for ransom or to use him as a

hostage, he is guilty of aggravated kidnapping. Otherwise, to be guilty of

kidnapping under section 212.1, the defendant must—with purpose to

inflict serious bodily injury or to terrorize the victim or to facilitate a

felony—remove the victim from his residence or move him a substantial

distance or confine the victim for a substantial period of time.

164

One of the important innovations of the Model Code was to limit

kidnapping to specified purposes, as noted above.

165

The Committee

agreed that the following are important and clear purposes: to hold for

ransom or reward, to use the victim as a shield or hostage, to terrorize the

victim, or to facilitate a crime. However, with regard to the purpose of

interfering “with the performance of any governmental or political

function,” the Committee feared that interference with a public function

would be too broad, so we are not proposing the adoption of that part of the

Model Code.

166

The original version of the Model Code requires that the

confinement or removal must be “unlawful,” which is defined as “by force,

threat or deception.”

167

However, in the case of a child under fourteen or

one who is incompetent, the thought was that either could be enticed

without consent of a guardian, so that force, threat, or deception was not a

necessary requirement. The Committee re-drafted the statute, so that there

is no need to specify that the confinement or removal is unlawful because

the purposes for which the person is confined or removed would clearly be

unlawful: to hold for ransom or as hostage or to commit a crime or to

terrorize him. The Committee believed that the word “unlawful” in this

statute would cause confusion.

168

161

. MODEL PENAL CODE § 5.01 (AM. LAW INST. 1985).

162

. MODEL PENAL CODE Art. 212 cmt. at 213 (AM. LAW INST. 1980).

163

. Minutes, supra note 26 (June 2018).

164

. Id.

165

. See supra discussion accompanying notes 148-150.

166

. Minutes, supra note 26 (June 2018).

167

. Id.

168

. Minutes, supra note 26 (June 2018).

222 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

The Committee agreed with the Model Code’s idea that, if the

defendant voluntarily releases the victim without serious bodily injury

before the trial, the crime should be reduced to a second-degree felony. The

extreme sanction of a first degree felony, which is also imposed only for

murder and a very few aggravated felonies,

169

should be reserved for

situations in which the victim is not released voluntarily or is seriously

injured.

170

Section 210.0(3), as adopted by the Committee, defines “serious

bodily injury” as any physical injury that “creates a substantial risk of death

or that causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.”

171

The

rationale is to encourage the defendant to voluntarily release the victim

alive and not seriously harmed. The great fear in all kidnapping cases is

that the victim will be killed in the process. Deterring this result is surely a

worthy goal.

172

The Committee believed that the affirmative defense of “releasing

the victim prior to trial” should be clarified, in addition to the other changes

discussed above. The Committee reporter, Matthew Steffey, redrafted the

statute to reflect these changes, as he often did, and we adopted this version,

dividing the crime into aggravated kidnapping and kidnapping,

173

the latter

having been denominated “felonious restraint” in the original Model Code

version.

174

We also clarified that, as opposed to the usual procedure for

affirmative defenses under the Model Code, the prosecution does not have

the burden of disproving this affirmative defense once it is raised.

175

The current Mississippi statute concerning kidnapping suffers from

all the deficiencies cited by the drafters of the Model Code.

176

First, it could

169

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

170

. Id.

171

. Minutes, supra note 26 (April 2018); note 72.

172

. MODEL PENAL CODE Art. 212 cmt. at 233 (AM. LAW INST. 1980).

173

. Minutes, supra note 26 (June 2018).

174

. See infra notes 183-84.

175

. Compare infra note 256 with discussion accompanying notes 174-76.

176

. MISS. CODE ANN. § 97-3-53. Kidnapping; punishment

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

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 223

apply to trivial conduct. In addition, the same conduct by different

defendants could be punished by a sentence from one year to thirty years,

177

a defect in the Mississippi criminal statutes generally, and one of the main

reasons Mississippi ranks dead last among criminal codes.

178

The current

statute does not require asportation or even confinement for a substantial

period of time, so that kidnapping could be charged in addition to other

crimes against the person that require restraint, such as rape.

179

For these reasons, this statute would be repealed by the adoption of

sections 212.1-3. Section 212.2 (felonious restraint) and section 212.3

(false imprisonment) are lesser included offenses to kidnapping

180

and will

now be discussed.

B. Felonious Restraint (Kidnapping)

The Committee adopted the Model Code version of felonious

restraint,

181

renaming it simply “kidnapping.”

182

I will refer to it as “simple

kidnapping” for purposes of this discussion to distinguish it from the more

serious form of the crime, which the Committee denominated “aggravated

kidnapping.” The Committee proposes the following:

Section 212.2 Kidnapping

A person is guilty of kidnapping if he knowingly:

(a) restrains another unlawfully in circumstances exposing

him to risk of serious bodily injury; or

(b) holds another in a condition of involuntary servitude.

Kidnapping is a felony of the third degree.

183

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.

This section shall not be held to repeal, modify or amend any

other criminal statute of this state.

177

. Id.

178

. See Johnson, supra note 2, at IV.

179

. For example, rape requires restraint. See infra discussion accompanying

note 290.

180

. See Appendix D.

181

. MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985). Original Model Penal

Code version:

Section 212.2 Felonious Restraint

A person commits a felony of the third degree if he knowingly:

(a) restrains another unlawfully in circumstances exposing him to risk of serious bodily

injury; or

(b) holds another in a condition of involuntary servitude.

182

. Minutes, supra note 26 (June 2018).

183

. Id.

224 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

Section 212.2 applies when the defendant holds another in

involuntary servitude or unlawfully restrains another in such a manner as to

expose him to risk of serious bodily injury.

184

Section 212.2 requires only

that the victim be subjected to the risk of serious bodily injury.

185

Simple kidnapping is distinguished from aggravated kidnapping

by eliminating the elements of substantial removal or confinement required

for aggravated kidnapping, as well as defining less serious purposes than

those required for aggravated kidnapping.

186

For example, if a defendant

unlawfully restrains another person for an insubstantial period of time and

exposes him to a risk of serious bodily injury even in a public place, he may

be guilty of kidnapping but not aggravated kidnapping. In such cases, the

defendant has not substantially removed or isolated the victim from

protection of the law, which could have increased the dangerousness of the

crime. Simple kidnapping does not require the specified purposes of

subjecting the victim to serious bodily injury, terrorizing or holding him for

ransom or as a hostage, or facilitating the commission of a crime.

187

For

example, if the defendant uses a weapon to force the victim to drive him to

another place, he is guilty of aggravated kidnapping if he is escaping from

a bank robbery. If he is not fleeing the commission of a crime and has none

of the other purposes specified for aggravated kidnapping but just needs a

ride, he may be guilty of simple kidnapping. This is because he is armed

and is exposing the victim to risk of serious bodily harm.

188

Simple

kidnapping is still a serious felony of the third degree.

189

While aggravated kidnapping requires that the defendant act

purposefully, in other words that he intends one of the specified purposes,

simple kidnapping requires the defendant to act knowingly, which means

that he must know that “his conduct is of that nature or that such

circumstances exist.”

190

Accordingly, he must be aware that he is

unlawfully restraining his victim and exposing him to the risk of danger.

In simple kidnapping, the action giving rise to a risk of danger must

amount to unlawful restraint. Because aggravated kidnapping requires

serious purposes, the necessity of adding the term “unlawful” to the statute

is obviated. However, sections 212.2 and 212.3 do not require the same

purposes. Consequently, for simple kidnapping and false imprisonment,

there is a need for the restraint to be unlawful, which the Committee defined

as:

184

. See supra note 72 for the definition of serious bodily injury.

185

. MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985).

186

. MODEL PENAL CODE Art. 212 cmt. at 240 (AM. LAW INST. 1980).

187

. Id. at 241.

188

. Id.

189

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

190

. MODEL PENAL CODE § 2.02(3) (AM. LAW INST. 1985).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 225

Section 212.0 Definitions

. . . .

2) For purposes of this Article, “unlawful” or “unlawfully” refers to

any affirmative violation of legal duty, whether it amounts to a

violation of the criminal law, civil law, or administrative

regulation.

191

This definition applies to the final form of unlawful restraint, section 212.3,

False Imprisonment, as well.

As discussed below with regard to section 212.4 (interference

with custody), restraint by one parent in violation of a custody order would

be included within the prohibition of section 212.2 as “unlawful” conduct.

However, the purposes required for kidnapping, involuntary servitude or

risk of serious bodily injury, would generally not be present. If they were,

the non-custodial parent could be guilty of kidnapping, but not aggravated

kidnapping, which requires that the child be taken without consent of a

parent.

192

The effect of all this is to include within the kidnapping offense

removal of a child under the age of fourteen by a stranger without the

consent of an appropriate guardian. The offense was not designed to

broaden liability for parental conduct nor to extend the offense of

kidnapping into intra-family custody disputes.

193

We will now look at false imprisonment, the least serious form of

unlawful restraint.

C. False Imprisonment

The Committee adopted the Model Code version of false

imprisonment, classifying it as a Class A misdemeanor:

194

Section 212.3 False Imprisonment

A person commits a Class A misdemeanor if he knowingly

restrains another unlawfully so as to interfere substantially with his

liberty.

195

While simple kidnapping under section 212.2 includes unlawful restraint

that exposes the victim to risk of serious bodily injury or that holds another

191

. Minutes, supra note 26 (July 2019).

192

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985).

193

. MODEL PENAL CODE Art. 212 cmt. at 251 (AM. LAW INST. 1980).

194

. Minutes, supra note 26 (June 2018).

195

. MODEL PENAL CODE § 212.3 (AM. LAW INST. 1985).

226 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

in involuntary servitude,

196

false imprisonment requires only that the

defendant “knowingly restrain another unlawfully so as to interfere

substantially with his liberty.”

197

Both offenses require knowledge of the

unlawful nature of the restraint,

198

as defined above.

199

The restraint must

be unlawful, so that restraint of a child by a parent, for example, would not

be false imprisonment; however, restraint of a child unlawfully by another

adult would constitute false imprisonment. The restraint must also

“substantially” interfere with the victim’s liberty to preclude application in

situations that may justify civil, but not criminal, sanction.

200

Because of the serious purposes required for simple kidnapping, it

is a felony of the third degree, while false imprisonment is a

misdemeanor,

201

which the Committee classified as a Class A

misdemeanor.

202

Furthermore, criminal coercion under section 212.5,

discussed below,

203

may cover other situations in which the victim’s liberty

is interfered with.

204

Because of the possibly broad coverage of section

212.3 and because more serious conduct is punished in other sections, a

Class A misdemeanor punishment was considered appropriate.

205

The next statutes are related to kidnapping, but without the

requirement of physical restraint. While simple restraint of a child by a

parent would not be considered criminal, interfering with custody of a child

could be.

D. Interference With Custody

Section 212.4 defines the offense of interference with custody.

206

The offense applies to situations in which the defendant takes or entices a

196

. MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985).

197

. MODEL PENAL CODE § 212.3 (AM. LAW INST. 1985).

198

. Compare MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985) with MODEL

PENAL CODE § 212.3 (AM. LAW INST. 1985).

199

. Section 212.0(2), as added by the Committee. See supra discussion

accompanying note 192.

200

. MODEL PENAL CODE Art. 212 cmt. at 247 (AM. LAW INST. 1980).

201

. Compare MODEL PENAL CODE § 212.3 with MODEL PENAL CODE § 212.2

(AM. LAW INST. 1985).

202

. Minutes, supra note 26 (June 2018).

203

. See infra Section IV. E.

204

. In addition, MODEL PENAL CODE §243.1 (AM LAW INST. 1985) applies to

restraint amounting to official oppression, such as illegal arrest. See Minutes, supra note

26 (July 2011) for the Committee’s version of §243.1.

205

. Minutes, supra note 26 (June 2018).

206

. MODEL PENAL CODE § 212.4 (AM LAW INST. 1985). The committee

originally adopted a statute borrowed from the Uniform Child Custody Act but decided

to retain the uniform act as it stands in the Mississippi Code. See Minutes, supra note 26

(June 2018).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 227

child or committed person from lawful custody. The Committee adopted

the Model Code version, with a few changes, as noted:

Section 212.4

(1) Custody of Children. A person commits an offense if he

knowingly or recklessly takes or entices any child under the age of

18 from the custody of its parent, guardian or other lawful

custodian, when he has no privilege to do so. It is an affirmative

defense that:

(a) the actor reasonably believed that his action was

necessary to preserve the child from danger to its welfare;

(b) the child, being at the time not less than 14 years old,

was taken away at its own instigation without enticement

and without purpose to commit a criminal offense with or

against the child.

Proof that the child was below the critical age gives rise to

a presumption that the actor knew the child's age or acted

in reckless disregard thereof. The offense is a Class A

misdemeanor unless the actor, not being a parent or person

in equivalent relation to the child, acted with knowledge

that his conduct would cause serious alarm for the child's

safety, or in reckless disregard of a likelihood of causing

such alarm, in which case the offense is a felony of the

third fourth degree.

(2) Custody of Committed Persons. A person is guilty of a Class A

misdemeanor if he knowingly or recklessly takes or entices any

committed person away from lawful custody when he is not

privileged to do so. “Committed person” means, in addition to

anyone committed under judicial warrant, any orphan, neglected or

delinquent child, mentally defective or insane person, or other

dependent or incompetent person entrusted to another’s custody by

or through a recognized social agency or otherwise by authority of

law.

207

Interference with custody could occur if the child is taken from a

parent, guardian, or other lawful custodian. Thus, the non-custodial parent

could be guilty of interference with custody, rather than kidnapping, which

could have been charged under earlier statutes.

208

The section is drafted in

part to limit the intrusion of the criminal law into child custody disputes but

207

. Minutes, supra note 26 (June 2018).

208

. MODEL PENAL CODE Art. 212 cmt. at 249 (AM. LAW INST. 1980).

228 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

at the same time to permit criminal intervention in appropriate cases.

209

Section 212.4 also applies when a defendant takes or entices from lawful

custody a person who has been committed.

210

Section 212.4 is a lesser

included offense to kidnapping in cases in which the kidnapping purposes

cannot be shown, but custody has been infringed on by persons having no

legal authority to do so.

211

As opposed to simple and aggravated kidnapping, which protect

against abduction causing physical danger, extortion, terrorization, or

involuntary servitude,

212

section 212.4 is directed at interference with

lawful custody of children and committed persons.

213

Because the person

interfering with custody will often be another parent, relative, or person

who acts based on the perceived best interest of the child or committed

person, the offense is punished less severely than kidnapping and has

special defenses.

214

A kidnapping charge is still possible if the requisite

purposes are present; however, if not, the defendant is guilty of the lesser

offense of interference with custody.

215

The offense regarding interference with custody of children requires

that the actor knowingly or recklessly take or entice a child under eighteen

from its legal custodian when he has no privilege to do so.

216

Such privilege

could come from consent by the custodian, court order, or statute.

217

There

are two affirmative defenses recognized under this subsection. The first is

that the actor “believed that his action was necessary to preserve the child

from danger to its welfare.”

218

The Committee decided that the actor should

“reasonably” believe that the action was necessary.

219

Reasonable belief

under section 1.13 requires that the actor not be criminally negligent in his

209

. Id. at 253.

210

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018).(AM. LAW INST. 1985).

211

. Compare MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985) with MODEL

PENAL CODE § 212.4 (AM. LAW INST. 1985). See MODEL PENAL CODE § 1.07 (AM. LAW

INST. 1985), which defines lesser included offenses. This will be the subject of a later

article.

212

. MODEL PENAL CODE §§ 212.1; 212.2 (AM. LAW INST. 1985). (as adopted

by the Committee. Minutes, supra note 26 (June 2018). (AM LAW INST. 1985).

213

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018). (AM LAW INST. 1985).

214

. MODEL PENAL CODE Art 212 cmt. at 251-52 (AM. LAW INST. 1980).

215

. See supra discussion accompanying note 208.

216

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018). (AM LAW INST. 1985).

217

. MODEL PENAL CODE Art. 212 cmt. at 257 (AM. LAW INST. 1980).

218

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985). (AM LAW INST.

1985).

219

. Minutes, supra note 26 (June 2018).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 229

belief;

220

otherwise, the affirmative defense would require the actor’s belief

to be at least reckless to lose the defense. This would occur by operation

of section 2.02, which provides that any element of an offense without a

specified state of mind will generally require recklessness.

221

The

Committee usually did not approve of leaving state of mind to the operation

of section 2.02 but preferred wherever possible to specify the state of mind.

The second defense recognizes that a child between the ages of

fourteen and eighteen has a mind of his own. If he arranges for his own

removal without being enticed, and the actor has no purpose of committing

a criminal offense with or against the child, the actor should have a

defense.

222

If the child is actually under the age of eighteen under subsection

(1) (or less than fourteen under the affirmative defense provided for in

subsection (1)(b)), there is a presumption that the actor knew or recklessly

disregarded the child’s age.

223

This offense is a Class A misdemeanor

unless the actor is not a parent or person in equivalent relation, and he knew

or acted with reckless disregard that the removal would cause serious alarm,

in which case the offense is a felony in the fourth degree.

224

In the case of

a parent who may also cause such alarm, the assumption is that fear for

safety is less justified because the child is with a parent who has a protective

instinct with regard to his own child.

225

If the child is in fact threatened

with harm, the offense could rise to the level of kidnapping.

226

The comments to the Model Code discuss three possible scenarios

to illustrate the effect of the section. The first is the removal of a child over

the age of eighteen who is not under a commitment order. If such a removal

does not involve force, threat, or deception required for aggravated

220

. MODEL PENAL CODE § 1.13 (AM. LAW INST. 1985).

General Definitions

. . . .

(16) “reasonably believes” or “reasonable belief” designates a belief that the actor is not

reckless or criminally negligent in holding.

Minutes, supra note 26 (December 2006).

221

. MODEL PENAL CODE § 2.02 (AM LAW INST. 1985). See Johnson, supra note

2, at IV.

222

. MODEL PENAL CODE Art. 212 cmt. at 258 (AM. LAW INST. 1980).

223

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018). (AM. LAW INST. 1985).

224

. Id. (as adopted by the Committee. Minutes, supra note 26 (June 2018).

(AM. LAW INST. 1985). The original version of the MPC only had three degrees of

felonies. The Committee added fourth degree felony. See supra note 26. This offense

was classified as a third-degree felony under the original Model Code Version MODEL

PENAL CODE § 212.4 (AM. LAW INST. 1985).

225

. MODEL PENAL CODE Art. 212 cmt. at 261 (AM. LAW INST. 1980).

226

. Id.

230 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

kidnapping or any of the purposes required for simple kidnapping, this

would not be kidnapping or interference with custody.

227

A child of this

age is capable of consenting, even if the legal guardian has not consented.

228

The second situation is removal of a child between the ages of

fourteen and eighteen from the custody of a legal guardian without that

person’s consent. Again, if there is no force, threat, or deception or a

prohibited purpose, the offense would not be kidnapping because the victim

has consented. However, this offense would be interference with custody

because the legal custodian must also consent, unless an affirmative defense

applies.

229

Third, if the child is under fourteen and, therefore, incapable of

consenting or is incompetent, this would be kidnapping, if the prohibited

purposes were present. If the prohibited purposes were not shown, the

offense would be interference with custody, absent an affirmative

defense.

230

A parent may not be guilty of aggravated kidnapping of his own

underage child because aggravated kidnapping specifically provides for

lack of parental consent,

231

but he may be guilty of interference with

custody.

232

If one of the prohibited purposes is present, the parent may also

be guilty of simple kidnapping if he knows the restraint is unlawful, which

could include violating a custody order.

233

The fact that simple kidnapping

requires knowledge that the conduct is unlawful would prevent the section

from operating in a situation in which custody is in dispute.

234

A parent

violating a custody order may also be guilty of false imprisonment under

section 212.3, which is also a misdemeanor, and only requires that the actor

know the restraint to be unlawful, which would include violating a custody

agreement.

235

With regard to custody of committed persons under subsection (2),

if the actor knowingly or recklessly takes or entices any committed person

from lawful custody without privilege, he is guilty of a Class A

misdemeanor. “Committed person” is defined as anyone “under judicial

warrant, any orphan, neglected or delinquent child, mentally defective or

227

. Id. at 253.

228

. Id.

229

. Id.

230

. Compare MODEL PENAL CODE §§ 212.1-2 (AM. LAW INST. 1985) (as

adopted by the Committee. Minutes, supra note 26 (June 2018)(AM. LAW INST. 1985)

with MODEL PENAL CODE § 212.3 (AM. LAW INST. 1985).

231

. MODEL PENAL CODE § 212.1 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018). (AM. LAW INST. 1985).

232

. Id.

233

. MODEL PENAL CODE Art. 212 cmt. at 256 (AM. LAW INST. 1980).

234

. Id.

235

. MODEL PENAL CODE § 212.2 (AM. LAW INST. 1985). (as adopted by the

Committee. Minutes, supra note 26 (June 2018). (AM. LAW INST. 1985).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 231

insane person, or other dependent or incompetent person entrusted to

another’s custody by or through a recognized social agency or otherwise by

authority of law.”

236

Special defenses are not provided in this subsection

because of the fact that the committed person is subject to judicial authority,

which should put the actor on notice that his conduct is wrongful.

237

However, as noted in the comments, if any of the defenses to subsection (1)

were present in a case under subsection (2), prosecutorial discretion should

be exercised.

238

The next section is related to kidnapping in that the victim’s

freedom of action is restrained. Even if he is not restrained physically, he

is still limited in his actions by the actor’s threats.

E. Criminal Coercion

Section 212.5 defines the offense of criminal coercion.

239

This

section is designed as a residual offense, punishing threats to take specified

action with a purpose to unlawfully restrict the freedom of action of another

person to his detriment.

240

The Committee adopted the following version

of criminal coercion, making several changes from the original version, as

indicated:

Section 212.5 Criminal Coercion

(1) Offense Defined. A person is guilty of criminal coercion if,

with purpose unlawfully to restrict another's freedom of action to engage

or refrain from engaging in conduct to his detriment, he recklessly

threatens, explicitly or implicitly, to:

(a) commit any criminal offense; or

(b) accuse anyone of a criminal offense; or

hatred, contempt or ridicule, or to impair his

credit or business repute; or

(d) take or withhold action as an official, or cause an

official to take or withhold action.

It is an affirmative defense to prosecution based on paragraphs (b),

to be true or the proposed official action justified and that his

purpose was limited to compelling the other to behave in a way

236

. MODEL PENAL CODE § 212.4 (AM. LAW INST. 1985).

237

. MODEL PENAL CODE Art. 212 cmt. at 262 (AM. LAW INST. 1980).

238

. Id.

239

. MODEL PENAL CODE § 212.5 (AM. LAW INST. 1985).

240

. MODEL PENAL CODE Art. 212 cmt. at 264 (AM. LAW INST. 1980).

232 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

reasonably related to the circumstances which were the subject of

the accusation, exposure or proposed official action, as by desisting

from further misbehavior, making …good a wrong done, refraining

from taking any action or responsibility for which the actor believes

the other disqualified.

(2) It is an affirmative defense to a prosecution under this section

that:

(a) the actor reasonably believed the accusation or secret to

be true or the proposed action justified, and

(b)(i) that the primary purpose of the threat was to cause the

other to conduct himself in his own best interest; or

(b)(ii) that a purpose of the threat was to cause the other to

desist from immoral or unreasonable conduct, engage in

behavior from which he could not lawfully abstain, make

good a wrong done by him, or refrain from taking any action

or responsibility for which he was disqualified.

(2) (3) Grading. (a) Criminal Coercion is a felony in the third degree

if the threat is to commit a felony in the first or second degree or the

actor’s purpose is felonious in the first or second degree.

(b) Criminal Coercion is a felony in the fourth degree if the threat is

to commit a felony in the third degree or the actor’s purpose is to

commit a felony in the third degree.

241

Since criminal coercion is a residual offense, it compliments other

offenses involving threats,

242

such as extortion

243

and robbery,

244

both of

which require that the threat be made to acquire property.

245

To avoid

overbroad enforcement, criminal coercion applies only to a limited category

of threats that must be made with an improper purpose to limit a person’s

freedom of action.

246

241

. Minutes, supra note 26 (November 2019).

242

. Id.

243

. Id.

244

. Id.

245

. MODEL PENAL CODE Art. 212 cmt. at 264 (AM. LAW INST. 1980). In

addition, the following crimes also involve threats: Theft of Services under § 223.7,

Terroristic Threats under § 211.3, Assault under § 211.1, Criminal Mischief under §

220.3, and Improper Influence Over Public Officials and Others under § 240.2. See id. In

addition, some of the sex crimes, discussed infra at V. involve threats.

246

. MODEL PENAL CODE Art. 212 cmt. at 265 (AM. LAW INST. 1980).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 233

There are four types of threats. Again, they all must be made with

the purpose of unlawfully restricting another’s freedom of action.

247

The

Committee made several changes to the language of the Model Code. First,

the Committee decided that the threat could be “explicit or implicit.”

248

The

original Model Code version defined “freedom of action” in the comments,

but not in the statute, to be anything the victim does not want to do or not

do that works to his detriment.

249

The Committee decided that this was

unclear, so we added to “freedom of action” in the statute “to engage or

refrain from engaging in conduct.”

250

We also eliminated “to his detriment”

because we believed that limiting freedom of action sufficiently defined the

conduct.

251

The original Model Code provided that, if the action is for the good

of the person, it is not covered by this section

252

since the action must limit

the victim’s freedom of action to his detriment.

253

This idea was also

reinforced in the affirmative defenses, discussed below.

254

As noted, the

Committee removed the language “to his detriment,” deciding that a proper

purpose should be an affirmative defense.

255

247

. Id. at 264.

248

. Minutes, supra note 26 (November 2019).

249

. MODEL PENAL CODE Art. 212 cmt. at 265 (AM. LAW INST. 1980).

250

. See supra Committee’s version of the statute § 212.5(2) at discussion

accompanying note 242.

251

. Id.

252

. Id.

256. MODEL PENAL CODE § 212.5(1)(d) (AM. LAW INST. 1985).

254

. Id.

255

. MODEL PENAL CODE Art. 212 cmt. at 265 (AM. LAW INST. 1980). The

Committee adopted the Model Code’s scheme for affirmative defenses, which requires

the defendant to raise the defense and the prosecution to prove its absence beyond a

reasonable doubt. Minutes, supra note 26 (October, November, December 2006).

MODEL PENAL CODE § 1.12 (AM. LAW INST. 1985).

(1) No person shall be convicted of an offense unless each

element of such offense is proven beyond a reasonable doubt.

In the absence of such proof, the innocence of the defendant is

assumed.

(2) Subsection (1) of this Section does not:

(a) Require the disproof of an affirmative defense unless

and until there is evidence supporting such defense; or

(b) Apply to any defense that the Code or another statute

plainly requires the defendant to disprove by a

preponderance of the evidence; or

. . . .

Thus, absent a statutory requirement, the prosecution must disprove any affirmative

defense not plainly requiring the defendant to prove by a preponderance of the evidence.

234 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

The original version of the Model Code also required that the actor

restrain the victim’s freedom of action “unlawfully.”

256

However, as

opposed to the other sections in this Article that use the term unlawfully—

defining it as “any violation of the criminal law, civil law or administrative

regulation”

257

—the Model Code comments defined “unlawfully”

differently in this section: The actor has to intend to coerce conduct he has

no legal right to require. Again, this definition was suggested by the Model

Code comments but was not defined in the statute.

258

The Committee

deleted the reference to “unlawfully” because the addition to “freedom of

action” of “engaging in or refraining from conduct,” which should cover

what the victim does or does not want to do.

259

The list of threats for criminal coercion does not include all the

threats included for extortion, which requires the purpose of acquiring

property; the justification being that this is more obviously wrongful.

260

The first threat that could be criminal coercion is to threaten “to commit

any criminal offense.”

261

The second is “to accuse anyone of a criminal

offense.”

262

The third threat is less obvious and, that is, to threaten to

“expose a secret that would cause the person to be ridiculed, hated, held in

contempt, or that would impair his credit or business repute.”

263

The last is

to threaten to “take or withhold official action,” either because the

defendant is an official or because the victim is an official.

264

When the actor’s purpose is benign, coercion should not be

criminal. Therefore, the Committee adopted the Model Code’s affirmative

defenses in this regard but restructured and clarified them.

265

The

affirmative defenses are designed to prevent interference with legitimate

bargaining and other similar situations.

266

The defenses do not apply to

subsection (a) because commission of a crime would never be justified

under this subsection. However, with regard to the other purposes, if the

actor believed the accusation or secret to be true or the proposed official

action justified, the defense would apply. In addition, the purpose must be

to require the person to correct his unreasonable or immoral behavior, right

256

. MODEL PENAL CODE § 212.5 (AM. LAW INST. 1985).

257

. Minutes, supra note 26 (July 2019).

258

. MODEL PENAL CODE Art. 212 cmt. at 265 (AM. LAW INST. 1980).

259

. Minutes, supra note 26 (November 2019).

260

. MODEL PENAL CODE Art. 212 cmt. at 266. The Committee is proposing to

include extortion as a type of robbery. See Minutes supra note 26 (August 2020).

261

. MODEL PENAL CODE § 212.5(1)(a) (AM. LAW INST. 1985).

262

. MODEL PENAL CODE § 212.5(1)(b) (AM. LAW INST. 1985).

263

. MODEL PENAL CODE § 212.5(1)(c) (AM. LAW INST. 1985).

264

. MODEL PENAL CODE § 212.5(1)(d) (AM. LAW INST. 1985).

265

. See supra note 256.

266

. MODEL PENAL CODE Art. 212 cmt. at 267 (AM. LAW INST. 1980).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 235

a wrong, or prevent the other person from taking action for which he is

disqualified.

267

The original Model Code version used the term

“misbehavior.” The Committee substituted the term “immoral or

unreasonable behavior,” which is the definition suggested by the Model

Code comments.

268

Advising a driver to slow down or be reported would be an example

of requiring the person to cease unreasonable or immoral behavior.

269

example of threatening to expose a secret to encourage the victim to correct

his unreasonable or immoral behavior would be to threaten to disclose an

alcoholic’s secret drinking to force him into treatment. Threatening to

accuse another of theft if he does not return the property would be an

example of righting a wrong within the defense.

270

Using a threat to prevent

another from assuming a position for which he is unqualified would also

apply here.

271

The Committee refined the grading scheme so that, if the threat is

to commit a felony in the first or second degree or the actor has a purpose

that is felonious in the first or second degree, criminal coercion is a felony

in the third degree. If the felony intended or threatened is a felony in the

third degree, the offense is a felony in the fourth degree. The offense is

otherwise a misdemeanor, which the Committee classified as a Class A

misdemeanor.

272

We turn now to the most controversial set of crimes, sex crimes.

V. SEX CRIMES

Article 213 of the Model Code, which relates to sex crimes, was

outdated and unsatisfactory, so the Committee completely revamped the

sex crimes article by referring to Mississippi statutes that existed at that

time.

273

The Committee also reviewed the sex crimes statutes of other states

and decided to use Tennessee statutes as a model.

274

267

. Id. at 268.

268

. Id. at 265; Id. at 268.

269

. Id.

270

. Id.

271

. Id.

272

. Minutes, supra note 26 (June 2018).

273

. See Minutes, supra note 26 (May, July, August, and September 1999). The

Committee reviewed these recently and added some updates. Minutes, supra note 26

(June 2018).

274

. See TN. ST. §§ 39-5-501-506. Since none of the statutes proposed by the

Committee, except for indecent exposure, are based on the Model Code, the reference

will just be to section numbers. These may coincide with the Model Code sections, but

this is only for the sake of consistency.

236 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

After the Committee’s original adoption of its revised sex crimes

statutes, the American Law Institute (ALI) decided to strike Article 213 of

the Model Code and revise it.

275

The Committee had presciently managed

to avoid the main criticisms of the later stricken article by not applying sex

crimes to a particular gender of victim or perpetrator,

276

loosening the

restrictions on the most serious forms of sexual assault,

277

as well as

limiting the marital exemption.

278

The efforts by the ALI to revise the Model Penal Code are

ongoing.

279

The Committee reviewed the current proposals but decided that

the version we had adopted was preferable for our purposes.

280

Using

275

. 2012 A.L.I. Proceedings 257.

276

. See MODEL PENAL CODE §§ 213.1-5 (AM. LAW INST. 1985).

277

. See id. at §§ 213.1-3.

278

. See id. at § 213.4 (AM. LAW INST. 1985).

279

. The comment accompanying the stricken article indicated that the

criticisms included “gendered language,” “tight restrictions” on the most serious form of

rape, designating forms of sexual conduct as “deviate,” retention of a broad marital

exemption, “antiquated procedural provisions,” and outdated reasoning and phraseology

in the comments. See id. at §§ 213.0-5.

280

. Sections 213.1-5. I will cite these sections in this manner, since we did not

take them from the Model Code, as noted above.

These are the definitions that the Committee adopted for § 213. They will be

discussed as they arise in the discussion.

Section 213.0 Definition

(1) “Coercion” means use of or threat of immediate or future

kidnapping, extortion, force or violence or the use of parental,

custodial, or other official authority over a child less than

fifteen (15) years of age;

(2) “Intimate” parts include the primary genital area, groin,

inner thigh, buttock, or breast of a human being;

(3) “Mentally incapacitated” means that at the time of the act

the victim is incapable of appraising or controlling his conduct

due to the mental disease or defect or the influence of a

narcotic, anesthetic or other substance administered to him

without his consent, or due to any other acts committed upon

him without his consent;

(4) “Physically helpless” means the victim is unconscious,

asleep or for any other reason physically or verbally unable to

communicate unwillingness to do an act;

(5) “Sexual contact” includes the knowing touching of the

victim’s, the actor’s, or any other person’s intimate parts, or the

knowing touching of the clothing covering the immediate area

of the victim’s, the actor’s, or any other person’s intimate parts,

if that touching can be reasonably construed as being for the

purpose of sexual arousal or the gratification;

(6) “Sexual penetration” means sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion,

however, slight, of any part of a person’s body or of any object

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 237

Mississippi statutes and looking at other states, as well as the Model Code,

the Committee drafted statutes on rape and aggravated rape, rape of a child,

sexual battery, and aggravated sexual battery.

281

The Committee also

adopted a version of indecent exposure based on the Model Code. In

addition, we adopted a limited spousal exception and revised the

Mississippi statute on protective orders and procedure.

282

We will begin

with rape and aggravated rape.

A. Section 213.1 Rape; Aggravated Rape

Traditional rape statutes allowed only for a female victim and a

male perpetrator.

283

These statutes also required that the victim show that

she used “utmost resistance,”

284

which required that the “intensity of the

struggle must reflect the victim’s physical capacity to oppose sexual

aggression; and that her efforts must not have abated during the

encounter.”

285

Utmost resistance would not be required if the victim was

raped by the use of “fear of grave harm.”

286

Courts often required that the

“woman’s fear must encompass harm of extreme gravity” and that her

reaction be reasonable.

287

Essentially, the actor had to give the victim a

reasonable belief of imminent harm.

288

The Committee rejected the gender

specific requirement and the requirement of resistance by the victim, as

reflected in the rape and aggravated rape statute proposed, as follows:

Section 213.1 Rape and Aggravated Rape

(1) Rape is the sexual penetration of a victim by the actor or

of the actor by a victim when:

into the genital or anal openings of the victim’s, the actor’s, or

any other person’s body, but emission of semen is not required;

and

(7) “Spouse” means a married person. “Married Person” means

living together when neither spouse has filed for separate

maintenance or divorce.

(8) “Victim” means the person alleged to have been subjected

to criminal sexual conduct.

281

. Minutes, supra note 26 (November 2018).

282

. Id.

283

. MODEL PENAL CODE Art. 213 cmt. at 303 (AM. LAW INST. 1980). Although

the Official Comments have been stricken by the ALI, they remain useful for historical

purposes. See supra note 276.

284

. MODEL PENAL CODE Art. 213 cmt. at 304 (AM. LAW INST. 1980).

285

. Id. at 305.

286

. Id.

287

. Id. at 308.

288

. Id. at 309.

238 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

(a) the sexual penetration is accomplished by force

or coercion; or

(b) the sexual penetration is accomplished without

consent of the victim and the actor knows or recklessly

disregards that sexual penetration is accomplished without

the consent of the victim; or

helpless and the actor knows or recklessly disregards that

the victim is mentally incapacitated or physically

helpless and is incapable of consenting.

Rape is a second-degree felony.

(2) Aggravated rape is rape accompanied by one or more of

the following:

(a) The actor is armed with a deadly weapon; or

(b) The actor causes bodily injury to the victim; or

persons; or

(d) the victim is less than sixteen (16) years old.

Aggravated Rape is a first-degree felony.

289

Rape is sexual penetration without consent, by coercion, or if the

victim is physically helpless or mentally incapacitated. The important

terms are defined in the Committee’s version of Section 213.0.

290

“Sexual

penetration means sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s

body or of any object into the genital or anal openings of the victim’s, the

actor’s, or any other person’s body, but emission of semen is not

required.”

291

With regard to sexual penetration accomplished by coercion,

that term is defined in the Committee’s version of Section 213.0(1) as “use

of or threat of immediate or future kidnapping, extortion, force or violence

or the use of parental, custodial, or other official authority over a child less

than fifteen (15) years of age.”

292

The Committee decided to eliminate

“force” from the statute and leave “force” in the definition of coercion. The

word “force” in the statute could mean slight force, which should be

insufficient to be a serious crime. In context of the definition, sandwiched

289

. Minutes, supra note 26 (November 2018).

290

. See supra note 281.

291

. Id.

292

. Id.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 239

as it is between threat of a serious felony or violence, force would indicate

something more serious.

293

If the sexual penetration is accomplished without consent or the

victim is physically helpless or mentally incapacitated, the actor must have

knowledge or be reckless in believing that the victim was consenting under

such circumstances.

294

Knowledge would require that the person be aware

that the victim is not consenting.

295

Recklessness would only require the

actor to be consciously aware of a substantial risk that the victim is not

consenting.

296

“Physically helpless” applies to the situation in which the

victim is unconscious or otherwise physically helpless or unable to

communicate.

297

“Mentally incapacitated” applies to the situation in which

the actor administers a drug or other substance against the victim’s will that

renders him incapable of consenting or in the case of mental disease or

defect.

298

Obviously there is some overlap among these categories, but the

Committee thought that these were the situations in which culpability is

293

. The doctrine of ejusdem generis would apply here. Ejusdem generis is “a

canon of construction that holds that when a general term follows a list of particular

terms, the general terms only applies to things similar.”

https://www.law.cornell.edu/wex/ejusdem_generis.

294

. Minutes, supra note 26 (March 2018).

295

. The Committee adopted Model Code’s § 2.02 defining knowledge and

recklessness is as follows:

(b) Knowingly. A person acts knowingly with respect to a

material element of an offense when:

(i) if the element involves the nature of his conduct or the

attendant circumstances, he is aware that his conduct is of

that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is

aware that it is practically certain that his conduct will

cause such a result.

material element of an offense when he consciously disregards

a substantial and unjustifiable risk that the material element

exists or will result from his conduct. The risk must be of such

a nature and degree that, considering the nature and purpose of

the actor's conduct and the circumstances known to him, its

disregard involves a gross deviation from the standard of

conduct that a law-abiding person would observe in the actor’s

situation.

Minutes, supra note 26 (March 2018). See Johnson, supra note 2, at V. A. 1.

296

. Id.

297

. See supra note 281.

298

. Id.

240 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

most serious. The final definition clarifies that “victim means the person

alleged to have been subjected to criminal sexual conduct.”

299

Aggravated rape is elevated to a felony in the first degree and occurs

when the actor uses a deadly weapon, causes bodily injury, is aided by

another person, or when the victim is younger than sixteen years old.

300

“Bodily injury” is defined as “physical pain, illness, or any impairment of

physical condition.”

301

“Deadly weapon” is defined as “any firearm or

other weapon, device, instrument, material or substance, whether animate

or inanimate, which in the manner it is used or is intended to be used is

capable of producing death or serious bodily injury.”

302

The Committee

believed that precise definitions were especially important since

Mississippi lacks crucial definitions in this difficult area.

303

The oldest Mississippi statute on rape is termed “Rape; Assault

with Intent to Ravish,” and it requires, among other things, that the victim

be of chaste character, so it has fallen out of use. This statute also only

applies to female victims.

304

The statute does have the advantage of a stated

mens rea, which none of the other Mississippi statutes expressly have.

305

This statute should be repealed by Section 213.1, among others.

306

The Mississippi statute that covers statutory rape also includes a

section that prohibits forcible sexual intercourse with any person, which

includes administering a substance to cause the person to be unable to

299

. Id.

300

. Section 213.1.

301

. Minutes, supra note 26 (April 2018).

302

. See supra note 72.

303

. See Appendix E. There is a definition section, but it does not include many

of the relevant terms.

304

. MISS. CODE ANN. § 97-3-71.

305

. See statutes listed in Appendix E.

306

. See id.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 241

resist.

307

This statute provides for a life sentence.

308

This part of the statute,

as noted in common with the other Mississippi statutes on sex crimes,

suffers from having no mens rea requirement.

309

In addition there is no

definition of “forcible,” so the force could be anything from slight to

requiring “utmost resistance.”

310

This statute should also be repealed by

the rape statutes proposed by the Committee.

311

The remainder of the

statutory rape statute would be repealed by the following proposed

section.

312

C. Rape of a Child

Under the common law, it was illegal to have sex with someone ten

years of age or younger. Most statutory schemes consider sex with a child

a heinous crime and punish it more severely than rape of a mature person.

313

The age cut-off for statutory rape varies from state to state.

314

Many states

graduate punishment according to the age of the victim.

315

The original

307

. MISS. CODE ANN. § 97-3-95.

In addition, the following subsection of MISS. CODE ANN. § 97-3-6597-3-65 also covers

forcible sexual intercourse:

(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 State Penitentiary if the jury by its

verdict so prescribes; and in cases where the jury fails to fix the

penalty at life imprisonment, the court shall fix the penalty at

imprisonment in the State Penitentiary for any term as the

court, in its discretion, may determine.

308

. MISS. CODE ANN. § 97-3-65. See infra note 318 for the complete statute.

309

. See infra statutes cited in Appendix E.

310

. See supra discussion accompanying notes 287-89. The caselaw does not

appear to have defined “forcible” either. See, e.g. Madere v. State, 794 So. 2d 200, p.cite

(2001), in which the court said:

People of ordinary intelligence have the ability to understand

what behavior “forcible sexual intercourse” is designed to

discourage. The word “forcible” is no more vague or overly

broad than “forcibly ravish.” We find that the statutory

purpose and meaning of the amended statute, § 97–3–65(3)(a)

(2000), is purely common sense to any reasonable person.

311

. See Appendix E.

312

. MISS. CODE ANN. § 97-3-65.

313

. MODEL PENAL CODE Art. 213 cmt. at 324 (AM. LAW INST. 1980).

314

. Id.

315

. Id. at 325.

242 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

version of the Model Code provided for strict liability in the case of children

under the age of ten but modified this position in the case of older

children.

316

The Committee basically followed this approach but thought

that under eleven years old was more appropriate for strict liability. The

Committee adopted the following statute that would replace statutory rape

under the Mississippi Code:

317

316

. Id. at 326.

317

. MISS. CODE ANN. § 97-3-65.

Statutory rape; enhanced penalty for forcible sexual intercourse or

statutory rape by administering certain substances; criminal sexual assault

protection order

(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 State Penitentiary

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 State Penitentiary 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 State Penitentiary for each

subsequent offense;

subsection (1)(b) of this section, to imprisonment for life in the State

Penitentiary 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

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 243

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 State Penitentiary if the jury by its

verdict so prescribes; and in cases where the jury fails to fix the

penalty at life imprisonment, the court shall fix the penalty at

imprisonment in the State Penitentiary for any term as the court, in its

discretion, may determine.

(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 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.

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.

244 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

Section 213.2 Rape of a Child

(1)(a) Sexual penetration of the victim by the actor or of

the actor by the victim when the victim is less than

eleven (11) years old and the actor is at least sixteen

(16) years old is a first degree felony. Mistake as to the

victim’s age is no defense.

(b) Sexual penetration of the victim’s body by the

actor or of the actor by the victim when the victim is

less than eleven (11) years old and the actor is less than

sixteen (16) years old is a second degree felony. Mistake as

to the victim’s age is no defense.

(2) Sexual penetration of the victim by the actor or of

the actor by the victim when the victim is at least eleven (11)

years old but less than sixteen (16) years old and the actor is

at least four years older than the victim is a second degree

felony. It is a defense that the actor neither knew nor

recklessly disregarded that the victim was less than sixteen

(16) years old. Mistake as to the victim’s age is a defense

under this subsection (2).

(3) Sexual penetration of the victim by the actor or of

the actor by the victim is a third-degree felony when the

victim is at least eleven (11) years old but less than sixteen

(16) years old, and the actor is less than 21 years old but at

least four (4) years older than the victim. It is a defense that

the actor neither knew nor recklessly disregarded that the

victim was less than 16 years old. Mistake as to the victim’s

age is a defense under this subsection (3).

(4) A person does not commit an offense under this

section if the victim is the spouse of the actor.

318

The Committee was concerned about the across-the-board strict

liability imposed by the Mississippi statute, as well as the narrow age

difference required between the actor and the victim.

319

The proposed

statute addresses these concerns by limiting the imposition of strict liability

to rape of a child under eleven. Thus, mistake of age is no defense if the

child is less than eleven, while mistake of age is a defense if the child is at

least eleven. The Committee thought it was highly unlikely that a child

under eleven could ever be mistaken for anything but a child. If the actor

See Alexandra Hutton Oglesby, Eliminating Injustice: Revising Mississippi's Statutory

Rape Laws, 76 MISS. L.J. 1067 (2007), for a criticism of the law.

318

. Minutes, supra note 26 (November 2018).

319

. Id.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 245

is less than sixteen, the offense is a second-degree felony, otherwise it is a

first-degree felony.

320

The proposed statute on rape of a child requires that the actor must

be at least four years older than the victim.

321

The current Mississippi

statute has only a three-year age difference,

322

which could apply to

students only separated by two or three grades in the same school. Under

the proposed statute, if the victim is between eleven and sixteen, the actor

must either know or recklessly disregard the victim’s age.

323

Again, rape

is defined as sexual penetration by the actor of the victim or the victim by

the actor.

324

This conduct is punished as a second-degree felony or third-

degree felony if the actor is younger than twenty-one.

325

The Committee was aware that there are marriages where the ages

of the victim and actor are within the statute. Thus, if the victim is the

spouse of the actor, there is no offense under this statute.

326

However, the

Committee adopted a statute with a limited spousal immunity, which allows

for prosecution of spouses for rape under more conditions than the current

Mississippi spousal exemption.

327

C. Section 213.4 Limited Spousal Exclusion; Spousal Rape

The common law recognized a spousal exclusion from rape, so that

a man could not be guilty of raping his wife.

328

The basis for this exemption

was the historical treatment of women, especially wives, as chattels.

329

Although the latter idea was eventually abandoned, nevertheless, there was

a belief that marriage constituted “a blanket consent to intimacy which the

woman may revoke only by dissolving the marital relationship.”

330

Today,

marriage is viewed as an equal relationship that should always only require

consensual sex.

331

The Committee adopted the following limited spousal

exclusion, which is presented out of order, since it is an exemption to the

rape statutes just discussed:

320

. Compare MISS. CODE ANN. § 97-3-65 with proposed § 213.2.

321

. Id.

322

. MISS. CODE ANN. Section 97-3-65.

323

. Section 213.2(1).

324

. Id.

325

. Id.

326

. Section 213.2(4).

327

. Section 213.4.

328

. MODEL PENAL CODE Art. 213 cmt. at 341 (AM. LAW INST. 1980).

329

. Id. at 343.

330

. Id. at 342.

331

. Id. at 345.

246 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

Section 213.4 Limited Spousal Exclusion; Spousal Rape

(1) Except as provided in subsection (2), a person does not

commit an offense under this Article if the victim is the

spouse of the actor.

(2) Spousal rape is sexual penetration of one spouse by the

other when:

(a) Sexual penetration is accomplished by coercion

or knowingly without the consent of the victim; or

(b) The actor causes serious bodily injury to the

victim or sexual penetration is accomplished by the

use or threatened use of a deadly weapon.

Spousal rape under section (2)(a) is a second-degree felony.

Spousal rape under section (2)(b) is a first-degree felony.

332

The Committee decided to maintain a spousal exception but limited

it. The concern is that allegation of this crime could be used as leverage in

divorce actions, so that rape is only an offense if the actor’s state of mind

is more culpable. Thus, spousal rape under section (2)(a) may be charged

when the actor knows that the sexual penetration is without consent or is

accomplished by coercion.

333

Knowledge requires the actor to be

consciously aware that the victim is not consenting.

334

Under the rape statute, section 213.1, the actor must only be reckless

with regard to whether the victim is consenting.

335

The only difference for

spousal rape is that the actor must be practically certain that the spouse is

not consenting, as opposed to being aware of a substantial risk that the

spouse is not consenting.

336

Spousal rape under this subsection is a second

degree felony, as is rape under Section 213.1.

337

Under subsection (2)(b),

if the sexual penetration causes bodily injury or is accomplished with a

deadly weapon, there is no spousal exemption, and spousal rape is a first

degree felony as it is under Section 213.1.

338

Mississippi currently has an apparently very limited general spousal

rape exclusion, which seems to adhere to the outdated view that marriage

includes consent to sex for purposes of rape and sexual battery and is even

named “Defense of Marriage.” The exclusion does not apply if the spouses

332

. Minutes, supra note 26 (November 2018).

333

. Section 213.4.

334

. See MODEL PENAL CODE § 2.02(3) (AM. LAW INST. 1985); discussion

accompanying note 296.

335

. Section 213.1.

336

. Compare MODEL PENAL CODE § 2.02(2)(b) with § 2.02(2)(c) (AM LAW

INST. 1985).

337

. Compare § 213.1(1) with § 213.4(1).

338

. Compare § 213.1(2) with § 213.4(2).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 247

are separated at the time.

339

However, there are two important exceptions

that ameliorate the effect of the exclusion. The most important one is in the

“Defense of Marriage” statute, which provides that “the legal spouse of the

alleged victim may be found guilty of sexual battery if the legal spouse is

engaged in forcible sexual penetration without the consent of the alleged

victim.”

340

In addition, the exclusion does not apply to forcible sexual

intercourse or administration of a substance rendering the victim helpless,

even if the victim and actor are married, which is contained in another

section.

341

The effect of these two sections together makes a distinction

between forcible sexual penetration and sexual penetration merely without

consent. Since there is no clear definition of forcible sexual penetration and

no mens rea stated for when the sexual penetration is without consent, it is

difficult to predict when the exemption will apply.

342

The Mississippi marital exclusion applies to sexual battery as well,

except as indicated. Since the Mississippi sexual battery statute requires

sexual penetration, the exemption works out to apply only to cases of actual

sexual penetration.

343

Sexual battery as proposed by the Committee would

cover other cases of sexual assault, while the proposed rape statute applies

339

. MISS. CODE ANN.§ 97-3-99.

Sexual battery, defense of marriage

A person is not guilty of any offense under Sections 97-3-95 [95 sexual

battery; 97 definitions;101 punishment and protective orders] through 97-3-

103 {other statutes unaffected] if the alleged victim is that person's legal

spouse and at the time of the alleged offense such person and the alleged

victim are not separated and living apart; provided, however, that the legal

spouse of the alleged victim may be found guilty of sexual battery if the

legal spouse engaged in forcible sexual penetration without the consent of

the alleged victim.

340

. MISS. CODE ANN.§ 97-3-99.

341

. MISS. CODE ANN.§ 97-3-65.

(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 State Penitentiary if the jury by its

verdict so prescribes; and in cases where the jury fails to fix the penalty

at life imprisonment, the court shall fix the penalty at imprisonment in

the State Penitentiary for any term as the court, in its discretion, may

determine.

(b) This subsection (4) shall apply whether the perpetrator is married to

the victim or not.

342

. See supra note 342.

343

. See id; supra discussion accompanying notes 340-43.

248 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

only to sexual penetration.

344

The Committee chose to apply Section 213.4,

the marital exemption, only to rape and not to sexual battery, which has its

own exemption for simple sexual battery but not for aggravated sexual

battery.

345

D. Section 213.3 Sexual Battery; Aggravated Sexual Battery

The Committee is proposing the following statute to cover sexual

contact not amounting to sexual penetration:

Section 213.3 Sexual Battery; Aggravated Sexual Battery

(1) Sexual battery is sexual contact of a victim by the actor

or of the actor by a victim if:

(a) The sexual contact is accomplished by force or

coercion or the actor’s fraudulent misrepresentation

that the parties are legally married; or

(b) The sexual contact is accomplished without

consent of the victim, and the actor knows or recklessly

disregards that the sexual contact is accomplished without

the consent of the victim; or

physically helpless, and the actor knows or recklessly

disregards that the victim is mentally incapacitated

or physically helpless; or

(d) The victim is less than eighteen (18) years of age,

and the actor used his supervisory, disciplinary,

custodial, or parental authority to accomplish the

sexual contact.

(e) A person does not commit an offense under this

subsection if the victim is the spouse of the actor.

Sexual battery is a felony in the fourth degree.

(2) Aggravated sexual battery is sexual battery accompanied

by one or more of the following:

(a) The actor is armed with a deadly weapon; or

(b) The actor causes bodily injury to the victim; or

persons; or

(d) The victim is less than sixteen (16) years old.

344

. Compare § 213.1 with § 213.3.

345

. See § 213.3(1).

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 249

Aggravated sexual battery is a felony in the second

degree.

346

Sexual battery was patterned after the rape statute to cover sexual

assault in cases in which there is no sexual penetration.

347

“‘Sexual contact’

includes the knowing touching of the victim’s, the actor’s, or any other

person’s intimate parts, or the knowing touching of the clothing covering

the immediate area of the victim’s, the actor’s, or any other person’s

intimate parts, if that touching can be reasonably construed as being for the

purpose of sexual arousal or the gratification.”

348

As noted earlier,

Mississippi applies sexual battery only to actual penetration.

349

With the

exception of a child fondling statute,

350

there is no statute in Mississippi

that punishes sexual assault when there is no penetration. This conduct

would not be punished under the assault statute because even simple assault

requires bodily injury, not just offensive touching.

351

Bodily injury is

defined under the Model Code as “physical pain, illness or any impairment

of physical condition.”

352

The term is not defined under the Mississippi

Code, which otherwise adopted the language of simple assault from the

Model Code, including bodily injury.

353

The Committee believed that

sexual assault, even without penetration, may be just as traumatizing as

sexual penetration and that such assaults should be seriously punished.

There have been bills introduced in the Mississippi legislature to punish

sexual assault, but none has passed.

354

346

. Minutes, supra note 26 (November 2018).

347

. Minutes, supra note 26 (November 2018).

348

. See supra note 281. This is contrasted with sexual penetration, which

“means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,

however slight, of any part of a person’s body or of any object into the genital or anal

openings of the victim’s, the actor’s, or any other person’s body, but emission of semen

is not required.” See id. This definition is essentially the same as the Mississippi

definition of sexual penetration, but the latter only applies to another person, not to

sexual penetration of the actor himself. MISS. CODE ANN.§ 97-3-97(a).

349

. MISS. CODE ANN.§ 97-3-95.

350

. MISS. CODE ANN. § 97-5-23.

351

. See supra note 50.

352

. See supra note 72.

353

. See supra note 53.

354

. Conversation with Caryn Quilter, Staff Attorney, Mississippi State Senate

for almost 30 years. She has been a valuable member of the Committee for almost as

many years. The following are the bills proposed, all of which died in committee: See

H.B 221, 271,1020; S.B. 2420 (2019); H.B. 195, 922; S.B 2273 (2018); H.B. 1368,1382;

S.B. 2900 (2017); H.B. 563, 579; S.B. 2766 (2016); S.B.2094 (2015); H.B. 1058; S.B.

2219 (2013); S.B. 2078 (2012); S.B. 2327, 2525 (2011); H.B. 28; S.B. 2340; S.B. 2715

(2007); S.B.2253 (2009); S.B. 2226 (2008); S.B. 2460 (2006).

250 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

Non-aggravated sexual battery, or simple sexual battery, is a felony

in the fourth degree.

355

Such sexual battery is sexual contact by the actor

or actor by the victim.

356

There are four situations that may be sexual

battery. The first prohibits sexual contact by coercion or fraudulent

representation of marriage.

357

The second addresses sexual contact without

consent of the victim when the actor recklessly disregards the victim’s

consent.

358

The third applies when the actor recklessly disregards that the

victim is mentally or physically incapacitated.

359

The fourth situation is

when the victim is less than eighteen, and the actor used his supervisory

authority to accomplish the sexual contact.

360

There is a spousal exemption

for simple sexual battery,

361

but not for aggravated sexual battery.

362

Aggravated sexual battery is a felony in the second degree and

occurs when the actor is armed with a deadly weapon, causes bodily injury

to the victim, is aided by another or the victim is less than sixteen years

old.

363

Again, “bodily injury” under the Model Code is defined as “physical

pain, illness or any impairment of physical condition.”

364

The Committee also drafted a new statute to add the procedure from

the current Mississippi Statutes on rape and sexual battery.

365

The

procedure was taken from the current Mississippi statute, section 97-3-101,

but was conformed to the proposed statutory scheme.

366

We are

recommending that the remainder of the statute be eliminated and replaced

by the foregoing.

The Committee did adopt one of the Model Code’s sex crimes

statutes to cover indecent exposure, revising the statute with the needs of

the State in mind.

355

. Section 213.3.

356

. Section 213.3.

357

. Section 213.3(1)(a).

358

. Section 213(1)(b).

359

. Section 213(1)(c).

360

. Section 213(1)(d).

361

. Section 213.3(1)(e).

362

. Section 213.3(2).

363

. Section 213.1(b).

364

. Section 213.0(2).

§ 213.0. Definitions

In this Article, the definitions given in § 210.0 apply unless a different meaning plainly is

required.

These definitions are set out in an earlier footnote. See supra note 72.

365

. See Appendix B.

366

. Section 213.5 Protective orders; Procedure for introducing evidence of

sexual conduct of complaining witness; “complaining witness” defined.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 251

E. Section 213.5 Indecent Exposure

The Committee adopted the following statute on indecent exposure:

Section 213.5 Indecent Exposure

(1) A person commits the offense of indecent exposure if,

for the purpose of arousing or gratifying sexual desire of

himself or of any other person, he exposes his genitals under

circumstances in which he knows his conduct is likely to

cause affront or fear alarm.

A first or second conviction of section (1) is a Class B

misdemeanor. A third or subsequent conviction of section

(1) is a Class A misdemeanor.

(2) A person commits the offense of indecent exposure to a

child if, for the purpose of arousing or gratifying sexual

desire of himself or of any other person, he exposes his

genitals to a person known to be under sixteen years of age

under circumstances in which he knows his conduct is likely

to cause affront or alarm.

A first conviction of section (2) is a Class A misdemeanor.

A second or subsequent conviction of section 215.5 is a

Fourth Degree Felony.

367

The Model Code’s version of indecent exposure deals with one who

displays his genitals in circumstances known to carry risk of affront or fear

“for the purpose of arousing or gratifying sexual desire.”

368

The Committee

decided to substitute the word “alarm” for “fear.”

369

Another offense,

“open lewdness,” addresses the situation in which an actor may lack a

purpose to arouse or gratify sexual desire and yet engage in objectively

lewd display that shocks or outrages observers.

370

Open lewdness under

section 251.1 is a Class D misdemeanor and will be discussed in a future

article on crimes against public decency.

Indecent exposure is a type of sexual assault and is a Class B

misdemeanor for a first or second offense, except in the case of a victim

known to be under sixteen. The Committee decided that a subsequent

offense should be a Class A misdemeanor. We also added a subsection that

would punish the first indecent exposure to a child known to be under

367

. Minutes, supra note 26 (January 2020).

368

. MODEL PENAL CODE § 213.5 (AM. LAW INST. 1985).

369

. Minutes, supra note 26 (January 2020).

370

. MODEL PENAL CODE § 251.1 (AM. LAW INST. 1985).

252 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

sixteen as a Class A misdemeanor. Subsequent such offenses would be

fourth-degree felonies.

371

Indecent exposure requires exhibition of the genitals. Display of

buttocks or breast is not covered.

372

The Code provision requires that the

actor have a purpose to arouse or gratify the sexual desire of himself or of

another who is not his spouse. We left out the reference to a spouse because

we thought purpose to affront or alarm would be sufficient to criminalize

the exposure regardless of who the person was.

373

The requirement of sexual gratification would exclude prankster

exhibitionism. Such conduct may be punished as “open lewdness” under

section 251.1.

374

Indecent exposure requires that the actor know that his

conduct is likely to cause alarm. Thus, nudists and exotic dancers would

not be covered.

375

Section 215.5 defines indecent exposure more narrowly than prior

statutes. For example one of the Mississippi statutes prohibits “willfully

and lewdly” exposing ones person, or private parts.

376

Another statute

prohibits “indecent exposure of his or her person,” as well as abusive

language in or near the dwelling of another.

377

Both statutes must be

371

. Id.

372

. MODEL PENAL CODE Art. 213 cmt. at 410 (AM. LAW INST. 1980).

373

. Minutes, supra note 26 (January 2020).

374

. MODEL PENAL CODE Art. 213 cmt. at 410 (AM. LAW INST. 1980).

375

. MODEL PENAL CODE Art. 213 cmt. at 407 (AM. LAW INST. 1980).

376

. MISS. CODE ANN. SECTION 97-29-31. Indecent exposure

A person who willfully and lewdly exposes his person, or

private parts thereof, in any public place, or in any place

where others are present, or procures another to so expose

himself, is guilty of a misdemeanor and, on conviction for a

first offense, shall be punished by a fine not exceeding Five

Hundred Dollars ($500.00) or be imprisoned not exceeding

six (6) months, or both. Upon conviction for a second offense

within five (5) years, such person shall be guilty of a

misdemeanor and shall be punished by a fine of not more than

One Thousand Dollars ($1,000.00) or shall be imprisoned not

exceeding one (1) year, or both. Upon conviction of a third or

subsequent offense within five (5) years, such person shall be

guilty of a felony and shall be punished by a fine of not more

than Five Thousand Dollars ($5,000.00) or shall be

imprisoned for not more than five (5) years in the State

Penitentiary, or both. It is not a violation of this statute for a

woman to breast-feed.

377

. MISS. CODE ANN. § 97-35-11.

Disturbance by abusive language or indecent exposure

Any person who enters the dwelling house of another, or the

yard or curtilage thereof, or upon the public highway, or any

other place near such premises, and in the presence or hearing

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 253

intended to cover breast exposure because they both exclude breast

feeding.

378

The rationale for limiting the coverage to genitalia in the

proposed statute is to limit the offense to “visual sexual aggression against

the unwilling viewer.”

379

This would exclude private conduct that is

conducted without “due regard to privacy.”

380

This section is intended to

prohibit intentional sexual exposure for sexual gratification, which is

serious enough for the actor to be treated as a sex offender.

381

VI. CONCLUSION

As have other states and the federal government, Mississippi has

recognized the need for criminal justice reform.

382

As part of this effort,

the criminal code should be updated and improved. Mississippi has been

justifiably criticized for its criminal laws,

383

but this should not be the main

impetus for this effort to revise the penal code. In the interests of justice

and fairness, the conduct prohibited by the criminal law should be clearly

defined with appropriate requirements for mens rea. Also important is that

the punishment should be more carefully related to the seriousness of the

crime. The Committee has attempted to propose new laws that are designed

to serve the goals and the interests of our state.

384

The first article, inter alia, explained the proposals for homicide

crimes against the person.

385

This article has explained the proposals for

non-homicide crimes against the person. Other than the homicide crimes,

there is no area that requires clarity and definition more than this one, which

includes assault and battery, kidnapping, and sex crimes. The current

versions of these in the Mississippi Code often lack any mens rea

requirement or definition of important terms.

386

Adoption of the

Committee’s proposals will supply these crucial elements.

of the family or the possessor or occupant thereof, or of any

member thereof, makes use of abusive, profane, vulgar or

indecent language, or is guilty of any indecent exposure of his

or her person at such place, shall be punished for a

misdemeanor. The act of breast-feeding shall not constitute

indecent exposure.

This statute would also be repealed by Art. 213.

378

. Id.

379

. MODEL PENAL CODE Art. 213 cmt. at 408 (AM. LAW INST. 1980).

380

. Id.

381

. Id. at 410.

382

. H.B. 1352 (2019).

383

. See supra discussion accompanying notes 3-6.

384

. See Johnson, supra note 2, at IV.

385

. See Johnson, supra note 2, at V. B.

386

. See Appendix C, D and E.

254 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

Appendix A

Domestic Violence Statute Proposed:

Section 211.X Domestic Violence

(1) A person shall be guilty of domestic violence when the offense is

committed against a current or former spouse of the defendant or a child of

that person, a person living as a spouse or who formerly lived as a spouse

with the defendant or a child of that person, a parent, grandparent, child,

grandchild or someone similarly situated to the defendant, a person who has

a current or former dating relationship with the defendant, or a person with

whom the defendant has had a biological or legally adopted child.

(2) A person is guilty of simple domestic violence if he:

(i) Attempts to cause or purposely, knowingly or recklessly causes

bodily injury to another;

(ii) Criminally negligently causes bodily injury to another with a

deadly weapon or other means likely to produce death or serious

bodily harm; or

(iii) Attempts by physical menace to put another in fear of

imminent serious bodily harm.

The offense is a Class A misdemeanor, except that it is Felony in

the Fourth degree if at the time of the commission of the offense in

question, he has two (2) prior convictions, whether against the same

or another victim, within seven (7) years, for any combination of

simple domestic violence under this subsection (2) or aggravated

domestic violence as defined in subsection (3) of this section or

substantially similar offenses under the law of another state, of the

United States, or of a federally recognized Native American tribe.

(3) A person is guilty of aggravated domestic violence if he:

(i) Attempts to cause serious bodily injury to another, or causes

such an injury purposely, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of

human life;

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 255

(ii) Attempts to cause or purposely or knowingly causes bodily

injury to another with a deadly weapon or other means likely to

produce death or serious bodily harm.

The offense is a Felony in the Fourth Degree, except that

(i) the offense is a felony in the third degree if at the time of

the commission of the offense, he has two (2) prior convictions

within the past seven (7) years, whether against the same or

another victim, for any combination of aggravated domestic

violence under this subsection or simple domestic violence,

which is defined as a felony in the fourth degree, as set forth in

Subsection (2) or substantially similar offenses under the laws

of another state, of the United States, or of a federally

recognized Native American tribe.

(ii) the offense is a felony in the second degree if has at least

three (3) previous convictions, whether against the same or

different victims, for any combination of offenses defined in

subsection (3) of this section or substantially similar offenses

under the law of another state, of the United States, or of a

federally recognized Native American tribe.

(4) Reasonable discipline of a child, such as spanking, is not an offense

under this section.

(5) A person convicted under subsection (3) of this section shall not be

eligible for parole under the provisions of Section 47-7-3(1)(c) until he shall

have served one (1) year of his sentence.

(6) For the purposes of this section, “Dating relationship” means a social

relationship as defined in Section 93-21-3.

(7) Every conviction under subsection (3) of this section may require as a

condition of any suspended sentence that the defendant participate in

counseling or treatment to bring about the cessation of domestic abuse. The

defendant may be required to pay all or part of the cost of the counseling or

treatment, in the discretion of the court.

(8) (a) Upon conviction under subsection (3) of this section, the court shall

be empowered to issue a criminal protection order prohibiting the defendant

from any contact with the victim. The court may include in a criminal

protection order any other condition available under Section 93-21-15. The

256 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

duration of a criminal protection order shall be based upon the seriousness

of the facts before the court, the probability of future violations, and the

continued safety of the victim or another person. However, municipal and

justice courts may issue criminal protection orders for a maximum period

of time not to exceed one (1) year. Circuit and county courts may issue a

criminal protection order for any period of time deemed necessary. Upon

issuance of a criminal 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,

pursuant to Section 93-21-25.

(b) A criminal protection order shall not be issued against the defendant if

the victim of the offense, or the victim's lawful representative where the

victim is a minor or incompetent person, objects to its issuance, except in

circumstances where the court, in its discretion, finds that a criminal

protection order is necessary for the safety and well-being of a victim who

is a minor child or incompetent adult.

developed by the Office of the Attorney General and a copy provided to

both the victim and the defendant.

(d) It shall be a Class B misdemeanor to knowingly violate any condition

of a criminal protection order.

(9) When investigating allegations of a violation of subsection (3) of this

section, whether or not an arrest results, law enforcement officers shall

utilize the form prescribed for such purposes by the Office of the Attorney

General in consultation with the sheriff’s and police chief’s associations.

However, failure of law enforcement to utilize the uniform offense report

shall not be a defense to a crime charged under this section. The uniform

offense report shall not be required if, upon investigation, the offense does

not involve persons in the relationships specified in subsections (1) of this

section.

(10) In any conviction under subsection (3) of this section, the sentencing

order shall include the designation “domestic violence.” The court clerk

shall enter the disposition of the matter into the corresponding uniform

offense report.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 257

Appendix B

Protective Orders and Procedure Statute Proposed:

Section 213.5 Protective orders; Procedure for introducing evidence of

sexual conduct of complaining witness; “complaining witness” defined

(1) (a) Upon conviction section 213.1-4, 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.

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.

(2) In any prosecution under Sections 213.1-4, for rape under Section 97-

3-65, former 97-3-67 or 97-3-71, if evidence of sexual conduct of the

complaining witness is offered to attack the credibility of said complaining

witness, the following procedure shall be followed:

258 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 38:3

(a) A written motion shall be made by the defendant to the court

and prosecutor stating that the defense has an offer of proof of the

relevancy of evidence of the sexual conduct of the complaining

witness proposed to be presented and its relevancy in attacking the

credibility of the complaining witness.

(b) The written motion shall be accompanied by an affidavit in

which the offer of proof shall be stated.

shall order a closed hearing in chambers, out of the presence of the

jury, if any, and at such closed hearing allow the questioning of the

complaining witness regarding the offer of proof made by the

defendant.

(d) At the conclusion of the hearing, if the court finds that evidence

proposed to be offered by the defendant regarding the sexual

conduct of the complaining witness is relevant and otherwise

admissible, the court may make an order stating what evidence may

be introduced by the defendant, and the nature of the questions to

be permitted. The defendant may then offer evidence pursuant to the

order of the court.

(3) As used in this section and Section 97-3-70 [Repealed], “complaining

witness” means the alleged victim of the crime charged, the prosecution of

which is subject to this section.

(4) 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 attempt to have sexual intercourse with the

child.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 259

Appendix C

Mississippi Assault Statutes That Would Be Repealed:

MISS. CODE ANN. § 97-3-7 Simple assault; aggravated assault; simple

domestic violence; simple domestic violence third; aggravated domestic

violence; aggravated domestic violence third

(1) (a) A person is guilty of simple assault if he (i) attempts to cause or

purposely, knowingly or recklessly causes bodily injury to another; (ii)

negligently causes bodily injury to another with a deadly weapon or other

means likely to produce death or serious bodily harm; or (iii) attempts by

physical menace to put another in fear of imminent serious bodily harm;

and, upon conviction, he 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.

(b) However, a person convicted of simple assault upon any

of the persons listed in subsection (14) of this section under the

circumstances enumerated in subsection (14) shall be punished

by a fine of not more than One Thousand Dollars ($ 1,000.00)

or by imprisonment for not more than five (5) years, or both.

(2) (a) A person is guilty of aggravated assault if he (i) attempts to cause

serious bodily injury to another, or causes such injury purposely, knowingly

or recklessly under circumstances manifesting extreme indifference to the

value of human life; (ii) attempts to cause or purposely or knowingly causes

bodily injury to another with a deadly weapon or other means likely to

produce death or serious bodily harm; or (iii) causes any injury to a child

who is in the process of boarding or exiting a school bus in the course of a

violation of Section 63-3-615; and, upon conviction, he shall be punished

by imprisonment in the county jail for not more than one (1) year or in the

Penitentiary for not more than twenty (20) years.

(b) However, a person convicted of aggravated assault upon

any of the persons listed in subsection (14) of this section under

the circumstances enumerated in subsection (14) shall be

punished by a fine of not more than Five Thousand Dollars ($

5,000.00) or by imprisonment for not more than thirty (30)

years, or both.

(3) (a) When the offense is committed against a current or former spouse

of the defendant or a child of that person, a person living as a spouse or who

formerly lived as a spouse with the defendant or a child of that person, a

parent, grandparent, child, grandchild or someone similarly situated to the

defendant, a person who has a current or former dating relationship with

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the defendant, or a person with whom the defendant has had a biological or

legally adopted child, a person is guilty of simple domestic violence who:

(i) Attempts to cause or purposely, knowingly or recklessly causes

bodily injury to another;

(ii) Negligently causes bodily injury to another with a deadly

weapon or other means likely to produce death or serious bodily

harm; or

(iii) Attempts by physical menace to put another in fear of

imminent serious bodily harm.

Upon conviction, 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.

(b) Simple domestic violence: third. A person is guilty of

the felony of simple domestic violence third who commits

simple domestic violence as defined in this subsection (3)

and who, at the time of the commission of the offense in

question, has two (2) prior convictions, whether against

the same or another victim, within seven (7) years, for any

combination of simple domestic violence under this

subsection (3) or aggravated domestic violence as defined

in subsection (4) of this section or substantially similar

offenses under the law of another state, of the United

States, or of a federally recognized Native American tribe.

Upon conviction, the defendant shall be sentenced to a

term of imprisonment not less than five (5) nor more than

ten (10) years.

(4) (a) When the offense is committed against a current or former spouse

of the defendant or a child of that person, a person living as a spouse or who

formerly lived as a spouse with the defendant or a child of that person, a

parent, grandparent, child, grandchild or someone similarly situated to the

defendant, a person who has a current or former dating relationship with

the defendant, or a person with whom the defendant has had a biological or

legally adopted child, a person is guilty of aggravated domestic violence

who:

(i) Attempts to cause serious bodily injury to another, or causes

such an injury purposely, knowingly or recklessly under

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 261

circumstances manifesting extreme indifference to the value of

human life;

(ii) Attempts to cause or purposely or knowingly causes bodily

injury to another with a deadly weapon or other means likely to

produce death or serious bodily harm; or

(iii) Strangles, or attempts to strangle another.

Upon conviction, the defendant shall be punished by imprisonment

in the custody of the Department of Corrections for not less than

two (2) nor more than twenty (20) years.

(b) Aggravated domestic violence; third. A person is

guilty of aggravated domestic violence third who, at the

time of the commission of that offense, commits

aggravated domestic violence as defined in this

subsection (4) and who has two (2) prior convictions

within the past seven (7) years, whether against the same

or another victim, for any combination of aggravated

domestic violence under this subsection (4) or simple

domestic violence third as defined in subsection (3) of this

section, or substantially similar offenses under the laws of

another state, of the United States, or of a federally

recognized Native American tribe. Upon conviction for

aggravated domestic violence third, the defendant shall be

sentenced to a term of imprisonment of not less than ten

(10) nor more than twenty (20) years.

(5) Sentencing for fourth or subsequent domestic violence offense. Any

person who commits an offense defined in subsection (3) or (4) of this

section, and who, at the time of the commission of that offense, has at least

three (3) previous convictions, whether against the same or different

victims, for any combination of offenses defined in subsections (3) and (4)

of this section or substantially similar offenses under the law of another

state, of the United States, or of a federally recognized Native American

tribe, shall, upon conviction, be sentenced to imprisonment for not less than

fifteen (15) years nor more than twenty (20) years.

(6) In sentencing under subsections (3), (4) and (5) of this section, the court

shall consider as an aggravating factor whether the crime was committed in

the physical presence or hearing of a child under sixteen (16) years of age

who was, at the time of the offense, living within either the residence of the

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victim, the residence of the perpetrator, or the residence where the offense

occurred.

(7) Reasonable discipline of a child, such as spanking, is not an offense

under subsections (3) and (4) of this section.

(8) A person convicted under subsection (4) or (5) of this section shall not

be eligible for parole under the provisions of Section 47-7-3(1)(c) until he

shall have served one (1) year of his sentence.

(9) For the purposes of this section:

(a) “Strangle” means to restrict the flow of oxygen or blood by

intentionally applying pressure on the neck, throat or chest of

another person by any means or to intentionally block the nose or

mouth of another person by any means.

(b) “Dating relationship” means a social relationship as defined in

Section 93-21-3.

(10) Every conviction under subsection (3), (4) or (5) of this section may

require as a condition of any suspended sentence that the defendant

participate in counseling or treatment to bring about the cessation of

domestic abuse. The defendant may be required to pay all or part of the cost

of the counseling or treatment, in the discretion of the court.

(11) (a) Upon conviction under subsection (3), (4) or (5) of this section, the

court shall be empowered to issue a criminal protection order prohibiting

the defendant from any contact with the victim. The court may include in a

criminal protection order any other condition available under Section 93-

21-15. The duration of a criminal protection order shall be based upon the

seriousness of the facts before the court, the probability of future violations,

and the continued safety of the victim or another person. However,

municipal and justice courts may issue criminal protection orders for a

maximum period of time not to exceed one (1) year. Circuit and county

courts may issue a criminal protection order for any period of time deemed

necessary. Upon issuance of a criminal 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, pursuant to Section 93-21-25.

(b) A criminal protection order shall not be issued against the defendant if

the victim of the offense, or the victim's lawful representative where the

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 263

victim is a minor or incompetent person, objects to its issuance, except in

circumstances where the court, in its discretion, finds that a criminal

protection order is necessary for the safety and well-being of a victim who

is a minor child or incompetent adult.

developed by the Office of the Attorney General and a copy provided to

both the victim and the defendant.

(d) It shall be a misdemeanor to knowingly violate any condition of a

criminal 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.

(12) When investigating allegations of a violation of subsection (3), (4),

(5) or (11) of this section, whether or not an arrest results, law enforcement

officers shall utilize the form prescribed for such purposes by the Office of

the Attorney General in consultation with the sheriff’s and police chief's

associations. However, failure of law enforcement to utilize the uniform

offense report shall not be a defense to a crime charged under this section.

The uniform offense report shall not be required if, upon investigation, the

offense does not involve persons in the relationships specified in

subsections (3) and (4) of this section.

(13) In any conviction under subsection (3), (4), (5) or (11) of this section,

the sentencing order shall include the designation “domestic violence.” The

court clerk shall enter the disposition of the matter into the corresponding

uniform offense report.

(14) Assault upon any of the following listed persons is an aggravating

circumstance for charging under subsections (1)(b) and (2)(b) of this

section:

(a) When acting within the scope of his duty, office or

employment at the time of the assault: a statewide elected

official; law enforcement officer; fireman; emergency medical

personnel; public health personnel; social worker, family

protection specialist or family protection worker employed by

the Department of Human Services or another agency;

Division of Youth Services personnel; any county or municipal

jail officer; superintendent, principal, teacher or other

instructional personnel, school attendance officer or school bus

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driver; any member of the Mississippi National Guard or

United States Armed Forces; a judge of a circuit, chancery,

county, justice, municipal or youth court or a judge of the

Court of Appeals or a justice of the Supreme Court; district

attorney or legal assistant to a district attorney; county

prosecutor or municipal prosecutor; court reporter employed

by a court, court administrator, clerk or deputy clerk of the

court; public defender; or utility worker;

(b) A legislator while the Legislature is in regular or

extraordinary session or while otherwise acting within the

scope of his duty, office or employment; or

person who is a vulnerable person, as defined in Section 43-

47-5.

MISS. CODE ANN. § 97-3-85. Threats and intimidation; by letter or notice

If any person shall post, mail, deliver, or drop a threatening letter or

notice to another, whether such other be named or indicated therein

or not, with intent to terrorize or to intimidate such other, he shall,

upon conviction, be punished by imprisonment in the county jail not

more than six months, or by fine not more than five hundred dollars,

or both.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 265

Appendix D

Kidnapping Statutes That Would Be Repealed:

MISS. CODE ANN. § 97-3-1. Abduction for purposes of marriage

Every person who shall take any person over the age of fourteen (14) years

unlawfully, against his or her will, and by force, menace, fraud, deceit,

stratagem or duress, compel or induce him or her to marry such person or

to marry any other person, or to be defiled, and shall be thereof duly

convicted, shall be punished by imprisonment in the penitentiary not less

than five (5) years and not more than fifteen (15) years.

MISS. CODE ANN. § 97-3-53. Kidnapping; punishment

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.

This section shall not be held to repeal, modify or amend any other criminal

statute of this state.

MISS. CODE ANN. § 97-23-83. Threats or coercion to prevent lawful

conduct of business

If any person shall in any manner threaten with bodily harm, intimidate or

coerce another person to prevent said person from lawfully trading or

carrying on business, including buying or selling, he shall be guilty of a

misdemeanor and, upon conviction thereof, shall be punished by

imprisonment for not more than one (1) year in the county jail or be fined

not more than one thousand dollars ($ 1,000.00) or both.

MISS. CODE ANN. § 97-3-13. False confinement; sending sane person to

psychiatric hospital or institution.

Every person or officer who maliciously sends to or confines in a

psychiatric hospital or institution or other place, any sane person as a person

with mental illness, knowing the person to be sane, shall be guilty of a

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felony, and, on conviction, shall be punished by a fine of not more than Five

Hundred dollars.

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 267

Appendix E

Sex crimes statutes that would be repealed:

MISS. CODE ANN. § 97-3-65. Statutory rape; enhanced penalty for forcible

sexual intercourse or statutory rape by administering certain substances;

criminal sexual assault protection order

(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 State

Penitentiary or a fine of not more than Five Thousand Dollars ($

5,000.00), or both;

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(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 State Penitentiary 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 State Penitentiary for each

subsequent offense;

subsection (1)(b) of this section, to imprisonment for life in the State

Penitentiary 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 State Penitentiary if the jury by its verdict so prescribes; and in cases

where the jury fails to fix the penalty at life imprisonment, the court shall

fix the penalty at imprisonment in the State Penitentiary for any term as the

court, in its discretion, may determine.

(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

2020] REFORMING THE MISSISSIPPI CRIMINAL CODE PART II 269