IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-01672-SCT IN THE INTEREST OF L.B.C., A MINOR

v. FORREST COUNTY

Y OUTH COURT

DATE OF JUDGMENT: 11/03/2016 TRIAL JUDGE: HON. MICHAEL W . McPHAIL TRIAL COURT ATTORNEYS: HERBERT H. KLEIN, III PAMELA LUCKIE CASTLE COURT FROM W HICH APPEALED: FORREST COUNTY YOUTH COURT ATTORNEY FOR APPELLANT: HERBERT H. KLEIN, III ATTORNEY FOR APPELLEE: PAMELA LUCKIE CASTLE NATURE OF THE CASE: CIVIL - JUVENILE JUSTICE DISPOSITION: AFFIRMED - 11/30/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. L.B.C. appeals the Forrest County Youth Court’s requirem ent that he register as a sex of f ender. All of the issues in this appeal arise f rom this require me n t

. A f ter r eview, we af f irm the y outh court’s judgm ent.

FACTS AND PROCEDURAL HISTORY ¶2. In D ecem

ber 2015, L.B.C. sexually battered t wo six-y e ar-old girls. L.B.C. adm itted

to s exually penetrating the two v i ctim s with his f ingers. A t the tim e, L.B.C. was f ourteen
y ears old.¶3. Initially , L.B.C. was charged as an adult in the Forrest County Circuit Court with two

counts o f sexual b attery u nder Mississippi C ode Section 97-3-95(1)(d) ( Rev. 2014). On the
State’s m otion, t he circuit court transf erred the case to the Forrest County Youth Court. In the m otion to transf

e r, the State cited the estim ate of a neuropsy c hol o g i s t that L.B.C. f unctioned closer to the age of a nine-y ear-old than a f

ourteen-y ear-old. ¶4. Once in y outh court, L .B.C. objected by m otion to the r equirem e nt t hat he register as

a sex of f e n der. At his h earing, L.B.C. adm itted to both counts of sexual battery

. T he y outh court accepted L.B.C.’s adm issions and adjudicated him delinquent under both counts. ¶5. Af ter hearing argum ent on L.B.C.’s e arlier objection to r egistration, the y outh court entered a disposition order that required L.B.C. t o r egister as a sex o f f ender under Mississippi Code Section 45-33-25 (Rev. 2015). The y o uth court also ordered L.B.C. into the custody o f the Mississippi D epartm e nt of C hild Protection Services and p laced a num ber of other restrictions on him

. ¶6. Each of the f

our issues appealed by L.B.C. arise f rom t he requirem ent that he register

as a sex of f ender. First, L.B.C. argues that his delinquency adjudication of sexual battery did

not i nvolve the use of f

orce and is not an of

f ense that requires him t o r e g i s t er as a sex of f ender. Second, h e argues t hat r equiring registration without an individual determ ination that h e i s a threat to the public v i olates his constitutional r ights. Third, L .B.C. m aintains that he should not b e r equired to register as a sex of f ender s i nce he has a m ental age of nine and had been f

ourteen y ears old f

or only three m onths at the tim e of the i n c i d e n t s . F o u r th, he claim s that r e quiring him to register a s a s e x of f ender violates the conf identiality

2requirem ents o f y o uth-court proceedings. W e address each of t he f our i ssues raised by L.B.C. in turn. Finding no error, we af f irm the disposition of

the y outh court.
STANDARD OF REVIEW ¶7. “The appellate standard of review f or y outh c o u r t p r o c e e d i n g s is the sam e as that which we apply to appeals f rom chancery court.” In r e J.P. , 15 1 S o . 3 d 2 0 4 , 2 08 (Miss. 2014) (citing A .B. v. Lauderdale C ounty Dep’t of

Hum an S ervs. , 13 S o. 3d 1263, 1266–67 (Miss. 2009)). This Court reviews questions of law de novo. Id

. ANALYSIS
I. Whether a delinquency adjudication for sex ual battery under Mississippi Code Section 97-3-95(1)(d) involve s the use of f orce, m andating registration as a sex offender

. ¶8. The issue here is w h e t h e r o r n o t L.B.C.’s adjudication of delinquency f or sexual battery requires a d em onstration of the use of f orce in order to require him to register as a sex of f ender. This issue of

law is one of

f irst im pression f or this Court. ¶9. W e have held that f orce is not a n elem e n t of the c rim e of sexual battery in all cases. See B urgess v

. S t a t e , 178 So. 3d 1266, 1 274 (Miss. 2015) ( “[ F]orce is not a n elem ent of sexual battery .”). Thus , f orce is not used against sexual-battery victim s in every instance. Here, though, f

orce is presum e d, g iven the victim s’ ages. T heref ore, as discussed below, an additional showing of f

orce is not nece s sary to require L.B.C. t o r egister a s a sex of f ender under the f

acts of this case. ¶10. Mississippi Code Section 45-33-25 governs m andatory registration f

or delinquents. Section 45- 3 3-25(1)(a) requires a person to b e f ourteen y e ars or older at the t im e of the

3of

f ense to qu a l i f

y f o r m andatory registration. Miss. Code Ann. § 45-33-25(1)(a) (Rev. 2015). Further, Section 45-33-25(1)(b), in part, provides: (b) Any person having a perm anent or tem porary r esidence or who is em ploy ed or attending school in this state who has been adjudicated delinquen t f o r a registrable sex of

f ense listed in this paragra p h t h at involved use of force against the victim shall r e gister as a sex o f f ender with the r esponsible agency and shall p ersonally appear at a Mi s s i s s i ppi Departm ent of Public Saf ety Driver’s License Station within three ( 3) business day s of registering w ith the responsible agency :

. . . . . (ii) Section 97-3-95 relating to sexual battery [ .] Miss. Code Ann. § 45-33-25(1)(b) (Rev. 2 015) (em phasis added). “This Court will not
engage in s tatutory interpretation if a statute is plain and unam biguous.” Mississippi
Methodist Hosp. & Rehab. Ctr., Inc. v . M i s s i s s ippi Div. of Medicaid , 2 1 So. 3d 600, 607 (Miss. 2009). Section 45-33-2 5 ’ s m eaning is plain a nd unam biguous. A person who is at least f ourteen y ears old and who is adjudicated delinquent o f a sex of f e nse “ that involved the use of f o rce against the victim ” m ust register a s a sex of

f ender. Miss. Code Ann. § 45-33- 25(1)(b). 1

1 A t L .B .C .’s h earin g , th ere ap p eared to b e so m e co n f u sio n as to w h eth er j u v en ile d elin q u en ts co u ld b e req u ired t o reg ister u n d er S ectio n 4 5 -3 3 -2 5 (1 ) ( a ) alo n e. T h e co n f u sio n b elo w aro se reg ard i n g R u l e 1 2 .3 o f th e M ississip p i A d m in istrativ e C o d e an d its ap p licatio n to S e ctio n 4 5 -3 3 -2 5 (1 )(a). R u le 1 2 .3 req u ires t h at “[ a ] n y p e r s o n . . . tw ice ad j u d icated d elin q u en t” reg i ster as a s e x o f f en d er. T h is ru le , t h o u g h , n o lo n g er h as an y statu to ry au th o rity as S ectio n 4 5 -3 3 -2 5 ( 1 ) w as am en d ed i n 2 0 0 7 t o ad d su b sectio n s (1 )(a) an d (1 )(b ). 2 0 0 7 M iss. L a w s 3 9 2

. T h e 2 0 0 7 am en d m e n t rem o v ed th e “tw ice ad j u d icated d elin q u en t” lan g u ag e f

ro m th e statu te. 2 0 0 7 M iss. L aw s 3 9 2

. T h u s, a s t h e s t a t u t e r ead s to d a y , a d elin q u en t is req u ired t o reg ister o n ly if h e o r sh e s atisf ies th e ag e req u irem e n ts o f S ectio n 4 5 -3 3 -2 5 (1 )(a) an d th e ad j u d icatio n r eq u irem en ts o f S ectio n 4 5 -3 3

- 2 5 ( 1 )(b ). M iss

. C o d e A n n . § 4 5 -3 3 -2 5 (R ev . 2 0 1 5 )

. 4¶11. Thus, t h e sexual battery here m ust have involved the use o f f o r c e t o r equire L.B.C.

to register as a sex o f

f ender. M ississippi Code Section 9 7-3-95 def ines the crim e of sexual battery : ( 1 ) A p e rson is guilty of sexual battery if he or she engages in sexua l penetration with: (a) Another person without his or her consent; (b) A m entally def

ective, m entally incapacita t ed or phy sically helpless person; (c) A child at least f

ourteen ( 14) but under sixteen (16) y ears of age, if t he person is thirty -six ( 36) o r m ore m onths older than the child; or (d) A child unde r t h e a g e o f f ourteen (14) y ears of age, if the person is twenty -f

our (24) or m o re m onths older than the child. Miss. Code Ann. § 97-3-95(1)(a)–(d) (Rev. 2014). ¶12. This C ourt has not a ddressed whether an adjudication under subsection 97-3-95(1)(d) involves the use of f

orce. 2 N evertheless, t h i s C o urt is n ot without guidance on this issue
f rom its caselaw. ¶13. W h ile m any o f o u r d e c i s i o n s o n t h e issue of f orce and violence have addressed

2 Wh i le th is C o u r

t’s d eterm in atio n to d ay is w h eth er an ad j u d i catio n u n d er su b sectio n 9 7 -3 -9 5 (1 )(d ) is p er se an o f f en se th at in v o lv e d th e u se o f “f o rce,” th is C o u rt’s caselaw t h at d eterm in es w h eth er an o f f en s e i s o n e o f “ v i o len c e” i s h elp f u l to th is an aly sis. T h is is b ecau se th is co u r

t h a s h eld th at “[ n ] o p articu l ar d eg r e e o f f o rce i s req u i red to co n stitu te v io len ce. . . . T h e te r ms ‘ v i o l en c e’ an d ‘f o rce’ are s y

n o n y m o u s w h en u sed in relatio n to assau lt, an d in clu d e an y

ap p licatio n o f

f o rce ev en th o u g h it en tails n o p ain o r b o d ily h a rm an d leav es n o m ark .” M

cQ u een v. S

ta te , 4 7 3 S o . 2 d 9 7 1 , 9 7 3 (M iss. 1 9 8 5 ). In d eed , “f o rce” i s d e f i n e d as “[ p ] o w er, v io len ce , o r p ressu r e d irected ag a i n s t a p erso n o r th in g .” F o rce , B l ack ’s L aw D i ctio n ary

(1 0 t h ed . 2 0 1 4 ) (em

p h asis ad d ed ).

5of

f enses other than sexual battery , the pri n c i p l e s undergirding these d ecisions apply with equal f orce to the o f

f ense of sexual battery against a victim u n d e r t he age o f f ourteen. Established Mississippi law provides that “ s ex crim es against underage c h i ldren are dif f erent.” Taylor v. State , 122 So. 3d 707, 713 (Miss. 2013). W e also h ave recognized “the
psy c h ological harm inherent in sex crim es against children.” Id . at 714. Further, “[ i]n the absence of a legislative s tandard , w e a d o pt the rationale that a separate s tandard of determ ining violence applies when the victim is a child.” Bandy v. State , 495 So. 2d 486, 492 (Miss. 1986), superseded on other grounds by Mississippi Rule of Evidence 601. ¶14. Reinf

orcing the f

act that sex crim es against children are dif f erent, we recognized that “[ s]exual intercourse with a child under age is f orcef ul, b e c a u se, by operation of law, the child is unable to consent.” Taylor v . S tate , 122 S o. 3 d 707, 712 (Miss. 2 013). The Phillipson Court, discussing the statutory -rape statute, explained: Under our laws, a m inor t hat f its the c r iteria of the statute sim ply does not have the legal power to consent. The a ge of a m inor is [ a] com plete bar to the legal exercise of consent to sexual intercourse. “At the heart of [ t he statutory r ape statute] is the core c oncern that children should not b e e x ploited f or sexual purposes regardless of their ‘consent,’” as “ [ t ]hey sim ply cannot appreciate the signif icance o r the consequences of their a c tions.” Accordingly , consent is not and cannot be a def

ense to a charge of statutory rape. Statutory rape i s also a “strict liability ” crime , and a def endant cannot m aintain a “m istake o f age” def ense. Phillipson v. State , 943 S o. 2d 670, 672 (Miss. 2006) (quoting Collins v. State , 691 So. 2d 918, 924 (Miss. 1997)) (citations om itted). ¶15. W h i l e n o t a l l o f t

h e o ff enses within the s e xual-battery statute are strict-liability crim es, sexual b attery o f a victim under the age of f ourteen i s. Under the s t atute, the three necessary

6elem ents of sexual battery of a child are (1) a person twenty -f our m ont h s o l d e r t h a n the victim , (2) an act of sexual penetration, and (3) a victim under the age o f f ourteen. S

ee Miss. Code A nn. § 97-3-95(1)(d) (Rev. 2014). There i s neither an i ntent e lem ent nor an af f irm ative def ense of consent withi n t h e s t a t ute. Cf

. Miss. Code Ann. § 97-3-95(1)(a) (“A person is guilty of sexual battery if he or she engages i n sexual p enetration with

. . . [ a ]nother person without his or her consent.”). Theref ore, sexual battery under S e c t i o n 97-3-95(1)(d) is a strict-liability crim e . Further, f o rce is presum ed as a child cannot c onsent t o s exual battery by operation of

law. ¶16. Here, L .B.C. adm itted t o the elem ents of sexual battery under Section 97-3-95(1)(d).
At the y outh-court judge’s instruction, the y outh-court prosecutor recited t he f actual basis f

or Count I against L.B.C.: [ T]he State would show that between the dates of Decem ber 19, 2 015, t hrough Decem ber 3 0 th [ sic] o f 2015, L.[ B.]C. did com m it the crim e of s exual battery towards a child, M.F., by engaging in sexual penetration with her, h er being the age of six a t the tim e and him 14 a t the tim e, a n d the a c t w a s b y his digitally – using his hands to digitally penetrate her vaginal area during t hat date and tim e and in Forrest County

. L.B.C. responded, “Yes, sir” w hen the y outh-court judge asked him if he was adm itting to those f a c t s . F o r Count II, the prosecutor, in part, recited t he f ollowing to the y outh court: “L.[ B.]C. did com m it the act of s exual battery of a child under the age of 14, that b eing M.F.

. . . being digital p enetration with h is hands, f i ngers into h er vaginal area.” L.B.C. adm itted to those f acts as well. ¶17. The f

acts to which L.B.C. adm itted proved the n ecessary elem ents of sexual battery

. L

. B

. C

. , w hen he was f ourteen, sexually penetrated t wo, six-y ear-old children. It i s

7undisputed on appeal that the elem ents of s e x u a l b a t t e r y were s atisf

ied. Further, a child

cannot consent to sexual i ntercourse. Today , w e apply this principle with equal f orce to sexual battery

against a victim

under the age of

f ourteen. ¶18. Thus, because t he adjudication of delinquency f o r s e x u a l b a t t e ry against a victim under the age of

f ourteen involved the use of f orce, L.B.C. m

u st register as a sex of

f ender. Theref ore, we f i nd L.B.C.’s f

i rst alleged error to be without m erit.
II. Whether the y outh court erred by n o t ma k i n g an individualized determ ination that L.B.C. w as a threat to the public. ¶19. Under this a lleged error, L.B.C. argues that the y outh court violated his constitutional rights to d ue process b y requiring him to r egister as a s ex of f ender without an individualized determ ination that he was a t hreat to the public. Because L.B.C. has raised t his i ssue f or the
f irst tim e on appeal, the issue is procedurally barred f rom this Court’s review. ¶20. It is settled law tha t t h i s C o u r t “will not c onsider issues raised f or the f irst tim e on appeal.” A nderson v. L aV ere , 1 36 So. 3d 404, 410 (Miss. 2014); s ee also Bush v. State , 895
So. 2d 836, 842 (Miss. 2005). Also, this Court has n ot hesitated to apply p rocedural bars to constitutional claim s. Allen v. N at’l R.R. Passenger C

orp. , 934 So. 2d 1006, 1015 (Miss. 2006) ( f inding that “f

ailure t o preserve . . . [ due-process-rights violation] f or appeal purposes renders th[ e] issue procedurally barred.”). ¶21. Here, L.B.C. did not contend that the r e q u i r e m e n t t o register w ithout an individualized determ ination that h e was a threat to the public violated his c onstitutional rights. In f act, he did not raise any constitutional concerns bef ore the y outh court. Instead, L.B.C.’s a rgum ent that Section 45-33-25 did not require him to r egister as a sex of f ender was two-f

old: (1) that

8Section 45-33-25(1)(a) w as am biguous and ( 2) that Section 4 5

- 3 3

- 2 5 (1)(b) required a separate showing of f

orce. L.B.C. also agreed t o a n i nf orm al hearing f

o r the disposition phase of his hearing. ¶22. L.B.C f

ailed to raise any constitutional a rgume n t s c o n c e r n i n g r egistration in the

y outh-court proceedings. Theref ore, L.B.C.’s alleged error is pr o c e durally barred f rom review on appeal.
III. Whethe r a l l qualified juvenile delinquents m ust register a s s ex offenders. ¶23. Under this issue, L.B.C. argues that he should not b e required to r e g i s t e r a s a sex of f ender as he had been f

ourteen y ears o ld f

o r only three m onths at the tim e of t he of f enses and had a “m ental age” of nine. Af ter review, we f

ind that this issue is without m erit. ¶24. The y outh court does not have any discretion as to whether a qualif ied delinquent is required to register as a sex o f f ender. Section 45-33-25 provides that “[ a]ny person . . . who has b een adjudicated delinquent f or a regi s t r able sex of

f ense . . . shall r egister as a sex of f ender with the responsible a gency .” 3 Miss. Code Ann. § 45-33-25(1)(a)–(b) (Rev. 2015). As long as the delinquent is f ourteen y ears old and com m itted an of f e nse that involved the use of f o rce, the delinquent is required to register. ¶25. L.B.C.’s citation of Atkins v. V irginia , 536 U.S. 3 04, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), is unavailing. Atkins stands f o r the proposition that the execution of m entally retarded crim inals is excessive and unconstitutional. Id

. It i s not controlling a uthority here.

3 T h is C o u rt co n sisten tly

h as h eld th at “[ w ] h en u sed in a statu te, th e w o rd ‘sh all’ is m an d ato ry an d th e w o rd ‘m ay ’ is d iscretio n ary . ” D .D .B . v. J a ck s o n C t y. Y o u th C o u rt , 8 1 6 S o . 2 d 3 8 0 , 3 8 2 (M iss. 2 0 0 2 ). 9¶26. Moreover, there is no c onclusive p roof in the record that L.B.C. was m entally retarded

or intellectually disabled. In f act, t he record dem o nstrates that L.B.C. understood the gravity of t he proceedings and voluntarily participated i n them

. He answered t he y outh-court judge’s inquiries and expressed rem o rse f or his actions. ¶27. Further, the p urpose of the Mississippi Sex Of f enders Registratio n L a

w i s to assist law enf orcem ent and protect the com m unity and vulnerable populations. See Miss. Code Ann. § 45-33-21 (Rev. 2015). The r equirem ent to register a s a sex o f f ender does not p u n i s h t h e registrant but protects the public f rom repeat of

f enses. This purpos e i s n o less a valid

concern with juvenile delinquents. Even L.B.C. adm itted that “this could have been any body that I could have done it to.” ¶28. There are n o exceptions t o registration f or q ualif ied juvenile d elinquents. M oreover, there is no conclusive proof that L.B.C. is m entally retarded or intellectually disabled. Theref ore, this issue is without m erit.
IV. W h ether m andatory registration as a sex offender violates t h e confidentiality requirem ent of the Youth Court Law

. ¶29. T h e e r r o r L.B.C. alleges under this issue i s that m andatory registration as a s e x of f ender violates the conf

i d e n t i a l ity requirem ent of t he Youth C ourt Law. Because the Youth Court Law provides exceptions to the conf identiality r equirem e nt, this issue is without

m erit. ¶30. The Youth Court Law provides that “[ t ]he r ecords of t he y outh court and the contents thereof shall be k e p t c o n f i d ential and shall n ot be disclosed except a s provided in Section
43-21-261.” Miss. Code Ann. § 43-21-251(2) (Rev. 2 015). Section 43-21-261 st a t es:

1 0“[ n]am es and addresses of juveniles adjudic a t e d a s d e l i n quent f or . . . any sex of

f ense as def ined in Section 45-33-23 . . . shall not be held c onf idential and shall be m ade available

to the public.” Miss. Code A nn. § 43-21-261(9) (Rev. 2015). Sexual battery against a victim under t he age of f

ourteen i s within Section 45-33-23’s def inition of sex o f

f enses. Miss. Code
Ann. § 45-33-23(h)(iv) (Rev. 2 012). Theref ore, L .B.C.’s required r e g i s t r a tion does not violate the Youth Court Law’s conf identiality requirem ent. The nam es and addresses of juveniles adjudica t e d d e l i n q u e n t for sexual battery are exem pted f rom the Youth Court Law’s conf identiality requirem en t f

o r t h e purposes of registration as a sex o f f ender; this issue is without m erit.
CONCLUSION ¶31. The issues raised by L.B.C. stem m ing f rom the r equirem e n t that he register as a sex of f ender are without m erit f

or the above-discussed reasons. W e theref ore af f irm the y outh court’s judgm ent, including the requirem ent that L.B.C. register as a sex of f ender. ¶32. AFFIRMED. WALLER, C . J ., RANDOLPH A ND KITCHENS, P.JJ., KING, COLEMAN, MAX W ELL, BEAM AND ISHEE, JJ., CONCUR.

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