Mississippi Advisory Opinions May 11, 2001: AGO 2001-0278 (May 11, 2001)

Advisory Opinion Text

Leslie Scott, Esquire

Assistant Secretary of State for Elections

Post Office Box 136

Jackson, Mississippi 39205

Re: Disenfranchising Crimes

Dear Ms. Scott:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter states:

We have received several inquiries from election commissioners and circuit clerks asking whether the following crimes are disenfranchising under Section 241 of the Mississippi Constitution of 1890:

1. Sexual battery (Miss. Code Ann. Section 97-3-95)

2. Statutory rape (Miss. Code Ann. Section 97-3-65)

3. Carjacking (Miss. Code Ann. Section 97-3-117)

Since these crimes appear to share some or all of the same elements as other disenfranchising crimes, we are asking your assistance in determining whether persons convicted of the crimes listed above should be purged from the voter rolls.

Disenfranchising crimes listed in Section 241, Mississippi Constitution of 1890 are murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement and bigamy.

Mississippi Code Annotated Section 97-3-95 (Revised 2000) is the sexual battery statute. It provides:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:

(a) Another person without his or her consent;

(b) A mentally defective, mentally incapacitated or physically helpless person;

(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or

(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Section 97-3-65 is the statutory rape and forcible rape statute. It provides in part:

(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.

(c) Neither the victim's consent nor the victim's lack of chastity is a defense to a charge of statutory rape. ...

(3)(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.

Section 97-3-117 is the carjacking statute. It provides in part:

(1) Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person's immediate actual possession shall be guilty of carjacking.

In comparing the elements of the crimes of rape and sexual battery, it appears that sexual battery is a separate and distinct crime from that of rape. Therefore, we of the opinion that a conviction of sexual battery under Mississippi Code Annotated, Section 97-3-95 (Revised 2000) does not deprive one of his suffrage.

Turning to the crime of statutory rape, we note that the 1890 Constitution does not specify a particular type of rape, but uses the general term rape in its list of disqualifying crimes. It does not specifically list statutory rape as a disqualifying crime, neither does it specify forcible rape.

Section 2672, Article XXVII, Revised Code of 1871 provides:

Every person who shall be convicted of rape, either by carnally and unlawfully knowing a female child, under the age of ten years; or by forcibly ravishing any female of the age of ten years and upwards, shall be punished by imprisonment in the penitentiary for life.

Therefore, at the time of the adoption of the 1890 Constitution the crime of statutory rape had already been established by the Mississippi Legislature. Since Section 241 of the 1890 Constitution did not distinguish between forcible rape and statutory rape, we are of the opinion that both crimes are disqualifying.

Insofar as the crime of carjacking is concerned, in our opinion to you dated August 18, 2000 relying on Cotton v. Fordice , 157 F.3d 388 (5th Cir. 1998) in which the Court said that theft, which is listed as a disqualifying crime, is a general label for statutorily created crimes involving an unlawful taking of property, we said that a felony conviction of armed robbery, receiving stolen property, robbery, extortion or shoplifting is disqualifying. Since carjacking also involves an unlawful taking of property, we are of the opinion that it too is disqualifying.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General