Thursday, April 17, 2014

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How the Laws can Protect You

Please be advised that our Legal Help is currently under review and subject to change.

Definition of "Domestic Violence"

Mississippi law defines domestic violence as one or more of the following acts between family or household members who live together or who formerly lived together, or between persons who are in a current dating relationship:

  • attempting to cause or intentionally, knowingly or recklessly causing bodily injury with or without a deadly weapon;
  • placing, by physical menace or threat, another in fear of imminent serious bodily injury, or
  • criminal sexual conduct committed against a minor.

A dating relationship is defined as a social relationship of a romantic or intimate nature. Family or household members means spouses, former spouses, persons living as spouses, parents and children, or other persons related by blood or marriage.

If you are living with a violent person who is committing any of these acts against you or your children, if you have lived with such a person and the acts are continuing after you have moved out, or if you are in a dating relationship with a violent person, there are both criminal and civil laws to protect you. In the first section of this booklet, we will give you an overview of the crimes that may be committed against you and the penalties for those crimes. In the second section, we will discuss the civil laws that allow you to get a protective order against further violence and how you can get this order from a Mississippi court without having to hire a lawyer or pay expensive costs.

Mississippi Criminal Laws Against Violence

Criminal laws are generally divided into two categories, according to the seriousness of the crime. Less serious crimes, or misdemeanors, are punishable by a fine or by a term in the county jail of not more than one year, or by both. More serious crimes, called felonies, are punishable by imprisonment in the state penitentiary for terms of one year to life, according to the severity of the act and the injuries caused by it. Most domestic violence acts start as misdemeanors, but can rise to the felony level quickly if they are not stopped in time. In this section, we will discuss the criminal laws that may be broken by acts of violence against family members and the punishment for each. We will include only a discussion of each law, not the exact text, but there is a list in the back of this booklet of the statutes discussed. If you wish a copy of any of the laws discussed, ask your area librarian, or the director of the domestic violence shelter in your area.

 


 


Simple Assault

Simple assault means causing or attempting to cause bodily
injury to another person, either on purpose or recklessly. A person can also by guilty of simple assault without actually causing bodily harm if he attempts by physical menace to put another person in fear that his life is in danger at that time. If the person who is assaulted is a family member or a member of the household who lives with the defendant (the person accused of the crime), or is a person who is currently dating the defendant or has had a child by him, the assault is considered an act of simple domestic violence. (This relationship does not have to be a blood relationship; it can include an in-law relationship if the in-law lives in the same house as the defendant.)  It is a misdemeanor, punishable by a fine of up to $500 and a term of not more than six months in the county jail. If a person is convicted to two more acts of domestic violence within a five year period, the third conviction becomes a felony which can send him to the penitentiary for term of five to ten years.

Under this law, if someone in your family hits you, slaps you, chokes you, kicks you or otherwise attacks your body, he is guilty of simple assault. Even if he does not actually touch you, if you reasonably fear from his actions that he is going to do you serious bodily harm, he can be arrested and charged with simple assault.


Aggravated Assault

Simple assault becomes more serious aggravated assault if the person either intentionally or recklessly causes or attempts to cause serious bodily harm, or if he uses or attempts to use a deadly weapon. In other words, if he hits or kicks you so hard that a bone is broken, this could be aggravated assault. If he chokes you to the point that your life is threatened, this is aggravated assault. If he uses or threatens you with a weapon, this is aggravated assault. The weapon does not have to be a gun or a knife. In one Mississippi case, a man was convicted as aggravated assault when he used a mop handle on his victim in the back and shoulder, stomping on her and cutting her with broken glass.  These are some of the types of injuries which will result in a conviction of aggravated assault.

A conviction of aggravated assault can bring a prison sentence of one to twenty years in the state penitentiary. If there is a third conviction of aggravated assault on a family or household member within five years, the sentence must be no less than five years in prison nor more than twenty years.

When a judge is sentencing a defendant for either simple or aggravated assault for violence against a family or household member, he takes into consideration whether the crime was committed in the presence or hearing of any children of the family under the age of sixteen. If any children were present or within hearing, the judge may impose a stricter sentence than he might have otherwise.


Disturbing the Peace

If the police are called to a home for a domestic disturbance, and they find that the disturbance has been loud enough,
violent enough (even if no blows were actually struck), of abusive enough to disturb the peace of the family or of the neighborhood, as arrest will be made. This is a misdemeanor and, in the absence of other charges, will probably result only in a fine, although the judge can impose a sentence of up to six months in jail.


Physical abuse of children

Children get special protection under the law from abuse. If a child is intentionally hurt, but no serious injury occurs, the
crime is a misdemeanor punishable by up to one year in jail. This law does not apply to parents spanking a child, as long as the spanking is reasonable. It could apply if the spanking was severe enough to cause the child to need medical care.

If a child is burned, tortured or hit hard enough to cause serious physical injury, the crime is a felony punishable by up to 20 years in the penitentiary. The Mississippi Supreme Court has said that because children are not as capable of protecting themselves and can be hurt more easily than an adult, "serious injury" to a child may not have to meet the same standards that would apply to felony aggravated assault of an adult.


Abuse of a vulnerable adult

It is an even more serious crime to cause physical pain to a vulnerable adult. Mississippi law defines vulnerable adults as persons who are unable because of age or any other infirmity to protect themselves from harm. The physical injury does not have to life threatening or even serious; any hitting, slapping, biting, choking, etc. of a vulnerable adult - anything that cause pain - is punishable by up to 30 years in prison. If you or anyone living with you is disabled because of age, is in a wheelchair, is bedridden through illness, that person would be a vulnerable adult.

 


 


Rape and Sexual Battery

It is against the law in Mississippi for one person to force another to have sex, even if the two are married. Any time physical violence or threat of physical violence is used to force you to submit to an act of sexual intercourse that you don't want, the crime of rape has been committed. It does not matter under the law if the person forcing you is your husband, your ex-husband, a boyfriend, an acquaintance or a stranger. If there is no actual intercourse, but a
person forces you to have oral sex, anal sex or any act where there is sexual penetration of a part of your body, the is sexual battery. Again, it is a forcible act, it doesn't matter if you are married to the person who forced you to do these acts or to submit to them being done to you.

It is also rape if someone - even your husband or boyfriend - gives you alcohol or drugs in such a large quantity that you are not capable of consenting to sex, then has intercourse with you while you are under the influence of this substance. In other words, if you are passed out from the effects of alcohol or drugs that someone gave you, or if any drug is used which would keep you from protesting or fighting when the person who gave it to you has sex with you, you have been raped and that person can be convicted of the crime of rape.

For the crime of rape, the jury can give a sentence of life in prison. If the jury does not set the sentence as life in prison, the judge can give any number of years up to life in prison as punishment for this crime. The maximum punishment for the crime of sexual battery of an adult is forty years in prison. In Mississippi, there is no parole for sex crimes. If a judge sets a sentence of forty years that means that the defendant spends forty years in prison, with no hope of parole before that time.


Rape, Sexual Battery or Fondling of a Minor

The penalties for having any kind of sex with a minor are very strict. Under the law, a child under the age of sixteen is too young to consent to an act of sex and any adult or older teenager having sex with a child under sixteen can be punished, even if the child wanted to have sex with the person. If the child is under the age of fourteen, any person more than 24 months older than the child having sexual intercourse with that child has committed rape. In other words, if a female or male child is twelve years and six months old, any person older than fourteen years and six months who has sexual intercourse with that child - even if the child wants to have sex with that person -has committed the crime of statutory rape. The sentence for this crime is life in prison (without parole). A judge may give a lighter sentence, but if  he defendant is an adult, the sentence cannot be less than twenty years. However, if the defendant is under the age of 18, the judge can give whatever sentence he thinks is appropriate under the circumstances.

If the child is fourteen or fifteen year old, any person more than 36 months older having sexual intercourse with that child has committed rape. If the child is fourteen years and six months old, any person older than seventeen years and six months who has sexual intercourse with that child - even if the child wants to have sex with that person - has committed the crime of statutory rape. The sentence for having sex with this age child depends on the age of the defendant. If he is under 21 years of age, his sentence cannot be more than five years in prison and/or a fine of up to $5,000. If he is over 21, the sentence is up to thirty years in prison for a first offense and up to forty years for any second conviction. An adult committing this crime can also be fined up to $10,000.

If the defendant does not have sexual intercourse with a child, but does have oral or anal sex, the crime is sexual battery and the same age limits and penalties apply that apply to the crime of rape.

If there is no sexual penetration of any part of the child's body, but there is any sexual touching or rubbing of a child under the age of 16 by a person over the age of 18, the crime charged is fondling.  The penalty for this crime is not less than two years or more than 15 years in the penitentiary and/or a fine of not less than $1,000 or more than $5,000.


 


Stalking

Any person who willfully, maliciously and repeatedly follows or harasses another person or who makes a credible threat with the intent of placing that person in reasonable fear of death or great bodily harm is guilty of the crime of stalking. The crime is a misdemeanor and carries a penalty of time is the county jail of up to one year, a fine of up to $1,000 or both. If there is a protective order in effect ordering the defendant to stay away from the person he is stalking, the fine may go up. If the person is convicted twice of stalking the same victim within seven years, the crime becomes a felony and may be punished by up to three years in the penitentiary and a fine of up to $2,000.

Although the law requires that following or a harassing act must be done more than once in order for the crime of stalking to apply, just one threat of death or great bodily harm can bring a conviction.  The threat must be "credible," meaning that the defendant must have the ability to carry out the threat and that it must be intended to put you in reasonable fear for you safety. For example, if you have left your husband or boyfriend and he keeps following you around, showing up at your workplace, or continually calling you on the telephone after you have told him not to, you can have him arrested for stalking. If he calls you from somewhere near - near enough that he could get there as soon as or sooner than the police - and threatens to kill you, then he has committed the crime of stalking and can be arrested.


Harassment

A separate law makes it a crime to send a threatening letter or notice to another person with the intent of terrorizing or intimidating that person. This is a misdemeanor punishable by up to six months in the county jail, a fine of up to $500 or both.


Kidnapping

If someone takes you and holds you anywhere against your will you have been kidnapped. Even if the place you are being held is your own home, if you are not allowed to leave when you want to, that is the crime of kidnap. You do not have to be tied up, handcuffed or otherwise restricted. If you are not allowed to leave a place where you do not want to be, it you are held there either by violence or threat of violence that is kidnapping. A jury can give a sentence of life in prison for kidnapping. If the jury fails to set a sentence, the judge can give up to thirty years in prison.


Interstate Removal of a Child

It is a felony for a noncustodial parent or other relative to take or hold a child under the age of fourteen across state lines in violation of a custody order. If you have custody of your children and your former spouse takes them out of the state without your permission, or if the children are on visitation in another state and the noncustodial parent refuses to return them after the court-ordered period of visitation is over, this crime has been committed. The penalty is up to three years in prison and /or a fine of up to $2,000.


Federal Laws

Federal laws similar to the state laws outlined above were passed to protect persons who have moved to another state to escape violence in their homes. These laws make it a federal offense to cross state lines for the purpose of domestic violence, stalking or violation of a protective order. There is also a federal law prohibiting anyone who has been convicted of domestic violence from owning or carrying a gun of any type. If you have come from another state to Mississippi and you have been followed here and stalked, assaulted or harassed, or if you know that a person who has been convicted of domestic violence, either here or in any other state, has a gun, call your local police department or sheriff's office and ask them to help you get in touch with federal authorities.

Legal Notice

This website is intended to provide general information only and is not to be considered legal advice in any manner. If you, a friend, or a family member are experiencing a crime of domestic violence, it is imperative that you contact the authorities and also seek legal advice through an attorney who will be able to represent your interests regarding the legal issues contained herein.

Domestic violence is a crime that not only impacts women. Men can be victims of violence at the hands of women. Violence also occurs between individuals of the same gender. However, for ease of written conversation on this website, the batterer will be referred to as “he” and the victim as “she.”

Copyright 2009 by Mississippi Coalition Against Domestic Violence