According to the Office of Florida Governor Jeb Bush, the "Jessica Lunsford Act of 2005" accomplishes the following:

(1) Increases the penalty for lewd and lascivious molestation of a child to life in prison or a split sentence of a mandatory minimum 25-year prison term, followed by lifetime supervision with electronic monitoring.

Under Florida law, lewd and lascivious molestation is defined as intentionally touching in a lewd or lascivious manner the breasts, genitals, genital area or buttocks, or the clothing covering them, of a child. To merit the minimum 25 year punishment described above, the act requires that the victim be less than 12 years of age and the offender be 18 or older. It is assumed that regardless of the sentence imposed, a defendant convicted under this provision must serve 25 calendar years before becoming eligible for parole or other release. And it is assumed that no good time or other incentive credits would operate to reduce the 25 year minimum sentence.

The closest applicable Tennessee law is § 39-13-504(a)(4) which is aggravated sexual battery. It prohibits unlawful sexual contact with a victim by the defendant or the defendant by the victim where the victim is less than 13 years of age. § 39-13-501(6) defines "sexual contact" as including the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.

Aggravated sexual battery is a Class B felony which carries a range of 8-30 years. Under § 40-35-501(i)(2)(H), a person convicted of aggravated sexual battery is required to serve at least 85% of the sentence imposed before being eligible for release.

During the 104th General Assembly, Senator Black and Representative Harwell sponsored a bill (SB 2581/HB 2666) creating a new Class B felony offense of child sexual battery. This new offense would retain the same elements of present § 39-13-504(a)(4) but would have required anyone convicted of the offense to serve 100% of the sentence imposed, rather that the 85% required now. This bill did not pass during the 104th General Assembly. The fiscal note for the bill stated that there were 83 people who would have been convicted of this new offense in 2004-05 and that number would increase by approximately one a year for the next 10 years. The incarceration cost for this category of offender for the additional 15% of their sentence was estimated to be $2,017,000.

(2) Increases, from 20 to 30 years, the period of time before a sexual predator is allowed to petition to have the sexual predator designation removed.

Under Florida law an offender is a "sexual predator," as opposed to a sexual offender, who is convicted of:

1. One of the more serious sexual offenses, such as rape;
2. Certain offenses, such as false imprisonment or certain sexual offenses, where the victim is a minor;
3. A variety of crimes, such as kidnapping or false imprisonment, certain types of rape and sexual battery AND the offender has at least one prior conviction for certain other sexual type offenses, such as computer pornography, procuring a person under 18 for prostitution, and some lewd and lascivious offenses.

In Tennessee, a person is a violent sexual offender, as opposed to a sexual offender, who is convicted of any one of 19 violent sexual offenses set out in § 40-39-202. These range from aggravated rape, rape of a child, aggravated sexual battery, solicitation of a minor, sexual battery by an authority figure or attempting, soliciting, conspiring, facilitating any of these offenses or being an accessory after the fact to any of the offenses.

As stated above, in Florida a sexual predator must now remain on the sexual offender registry for 30 years before the offender can petition to be removed. Prior to enactment of Jessica's law, the period was 20 years.

In Tennessee, under § 40-39-207(f)(1), a sexual offender is required to remain on the registry for life if the person has 1 or more prior convictions for a sexual offense or has been convicted of a violent sexual offense. There is NO time period after which any of these sexual and violent sexual offenders may petition to be removed from the registry and the reporting requirements.

(3) Increases sexual predator/offender registration and reporting requirements.

It is difficult to ascertain exactly what is meant by "increasing registration and reporting requirements" in Florida or exactly what any such increases are. They appear to consist of additional information that a sexual offender or sexual predator is required to furnish upon registration. The same provision also requires sexual offenders and sexual predators to report in person during the month of the offender’s birthday and during the sixth month following the birth month, in other words, twice a year.

Since 2004, § 40-39-204(b) requires sexual offenders in Tennessee to register in person once a year. However, a violent sexual offender in Tennessee (the equivalent of a sexual predator in Florida) is required to report in person and register at least once during the months of March, June, September, and December, meaning that violent sexual offenders in Tennessee are required to register in person four times a year. Tennessee violent sexual offenders report twice as often as Florida sexual predators, even after passage of the Jessica Lunsford Act.

The additional information required during the sexual offender registration under Jessica's law is substantially similar to that which was already required in Tennessee. Based upon the changes made to the registration laws during the 2005 session discussed below, some additional information appears to be required of Tennessee sexual offenders that is not required of Florida offenders.

The Tennessee sexual offender and violent sexual offender registration and tracking act was completely rewritten in 2004. During the 104th General Assembly, a variety of changes were made to the act. These changes occurred mainly as the result of Public Chapter 890, which took effect on July 1, 2006. Pub. Ch. 890 was originally introduced as SB 2644 by Senator Burchett and HB 2604 by Representative Tindell. This legislation, known as the “Child Protection Act of 2006,” made the following changes to the sexual offender registry:

1. Changed the definition of “parent” to exclude a sex offender step-parent if the offender’s victim was a minor less than 13. This is for the purpose of determining whether a sexual offender can live in the same house with a minor;
2. Added the offense of exploitation of a minor by electronic means to the offenses classified as sexual offenses for purposes of the registry, if the victim of the offense was under 13;
3. Requires a sexual offender from another state who “establishes a physical presence in this state” to register in this state within 48 hours. Under prior law, a sexual offender from another state was not required to register until 48 hours after establishing a residence or becoming employed in this state;
4. Requires a sexual offender who resides and is registered in this state and who intends to move out of this state to notify such offender’s designated law enforcement agency of the offender’s new address within 48 hours of moving or the intention to move out of state;
5. In addition to the other information the registration form requires a sexual offender to provide, the act requires the offender to give pertinent information concerning any vehicle or mobile home or trailer OWNED by the offender as well as any vehicles USED by the offender;
6. In addition to the other information the registration form requires a sexual offender to provide, the act requires the offender to give the correct age of the offender and the victims at the time of the offense, if known;
7. Requires the TBI, by July 1, 2007, to promulgate rules establishing standardized specifications for the photograph of the sexual offender required for the registry so that the registry photographs will be uniform and the offender plainly visible;
8. Requires a sexual offender who is re-incarcerated for another offense or as the result of a violation of a condition of release for the sexual offense to report the offender’s status as a sexual offender to the incarcerating facility;
9. Makes it the duty of a sexual offender’s local designated registering agency to verify the accuracy and completeness of all information contained on the offender’s registration form, since law enforcement agencies where the offender resides are in a better position to know the offender and verify this information;
10. Makes it a Class E felony (as are all other registration violations) for an offender to fail to timely report when the offender moves to another state;
11. Prohibits a sexual offender whose victim was a minor to live or work within 1,000 feet of a public park, playground, recreation center, or public athletic field available for use by the general public; and
12. Prohibits a sexual offender from attending sexual offender treatment or attend a sexual offender treatment program within 1000 feet of any of the locations set out in § 40-39-211(a).

(4) Qualify sexual predators who murder their victims for the death penalty in capital cases.

This provision of the Jessica Lunsford Act adds an aggravating factor to the list of factors for which a jury is authorized to impose the death penalty if the offense is a capital offense. The law of all states that have enacted capital punishment sets out a list of aggravating factors and a list of mitigating factors. At the sentencing phase of a bifurcated capital case, the state puts on proof of each aggravating factor it believes to be applicable to the facts of the case and the defense puts on evidence of any mitigating factors. If the jury finds that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt, it may impose the penalty of death as opposed to life imprisonment or life without parole.

In order for this aggravating factor to be applicable in a case, the defendant must be a sexual predator rather than a sexual offender. And it does not appear that the capital offense must in any way relate to a sexual offense. Thus if a sexual predator killed a store clerk during the commission of an armed robbery, this aggravating factor could be used by the state to seek the death penalty.

Tennessee does not have a death penalty aggravating factor substantially similar to this one. It should perhaps be noted that Senator Black and Representative Harwell introduced a bill during the 104th General Assembly (SB2583/ HB2662) that would have added the offense of rape of a child to the list of offenses that elevate a killing to 1st degree murder if the killing is committed during the course of or fleeing from the listed offense. This is commonly referred to as the felony murder statute. The fiscal note for that bill was $182,700. Also, it costs $15,000 per execution, and the additional cost for trial and appeals for death penalty inmates is $750,000 per case. The bill did not pass.

(5) Designate failing to re-register as a sexual offender/predator or harboring or assisting a sexual predator/offender a third degree felony.

This provision actually encompasses two different concepts which are treated separately in both the Jessica Lunsford Act and Tennessee law.

(1) The first concept concerns an act committed by the offender or predator and makes it a third degree felony for an offender to fail to re-register as required. In Florida, a third degree felony is punishable by not more than 5 years imprisonment.

In Tennessee, § 40-39-208 sets out 8 sex offender related violations that may result in the offender being charged with and convicted of a separate offense. Since the rewrite of the registry law in 2004, all of these 8 registry violations are punished as a Class E felony which is punishable by 1-6 years imprisonment. Unlike Florida, the Tennessee statute also provides a minimum sentence of not less than 90 days for first offense, 180 days for a second offense and 1 year for a third offense if a sex offender is convicted of violating any of the registry provisions, including failing to register.

(2) The second concept of this provision of Jessica’s Law concerns conduct by someone other than the sex offender. This provision makes it a 3rd degree felony (punishable by not more than 5 years imprisonment) for another person to:

(A) Assist a sexual offender or predator in eluding law enforcement;

(B) Withholding information from law enforcement about a sexual offender or predator’s noncompliance with the registry laws;

(C) Harboring or concealing a sex offender or predator; or

(D) Providing false information to law enforcement about a sex offender or predator.

In Tennessee, at least since 1989, it has been a Class E felony for a person to do any of the following after commission of any felony, which would include any violation of the sex offender registry:

(1) Harbor or conceal the offender;

(2) Provide or aid in providing the offender with any means of avoiding arrest, trial, conviction or punishment; or

(3) Warn the offender of impending apprehension or discovery.

It should also be noted that under Tennessee law if a person is convicted as an accessory after the fact to a sexual offense or a violent sexual offense, the accessory also becomes a sexual offender or violent sexual offender and is therefore required to register in the same manner as the offender who was harbored or aided.

(6) Require those already convicted of sex crimes to have electronic monitoring for the remainder of their probation.

Although this provision added by Jessica’s Law seems to indicate that an electronic monitoring requirement as a condition of probation is retroactive to those sex offenders on probation prior to enactment of Jessica’s Law, that does not appear to be the case from reading the act itself.

However, if the probation of a person designated as a sex offender is revoked, the conditions for any subsequent granting of probation must include a requirement for electronic monitoring. This appears to be the only electronic monitoring provision added by Jessica’s law that would apply to sex offenders convicted before its enactment.

The second electronic monitoring provision added by Jessica’s law provides that the court must order mandatory electronic monitoring as a condition of probation for an offense committed on or after September 1, 2005 (the effective date of Jessica’s Law), if the offense was a specified sex offense involving unlawful sexual activity with a victim 15 years of age or younger and the person is designated as a sexual predator, or the person has a prior conviction for a specified sex offense involving unlawful sexual activity with a victim 15 years of age or younger.

Under Tennessee law, a person is only eligible for probation if the sentence imposed is 10 years or less, which makes certain sex offenses ineligible upon sentencing. § 40-35-303(a) further provides that a person convicted of aggravated sexual battery is not eligible for probation.

Additionally, Tennessee Code Annotated, Title 40, Chapter 39, Part 3, established a pilot project to require the GPS electronic monitoring of certain serious offenders and sexual offenders for the full term of the offenders probation or parole. Some judicial districts are requiring electronic monitoring of certain offenders convicted in that district apart from the pilot project.

Senator Burchett and Representative Briley introduced a bill during the 104th General Assembly (SB0754/ HB1349) that would have required the board of probation and parole to convert and implement the existing pilot project for tracking serious offenders and sexual offenders through a GPS tracking system into a statewide system by July 1, 2007. This bill did not pass and the fiscal note estimates that it would result in increased state expenditures of $5,801,400 the first year and $6,935,000 each succeeding year.

(7) Require all county misdemeanor probation officials to search the sexual offender registry when a new offender is assigned to them.

Tennessee has no specific statutory provision requiring this type of search when a misdemeanor probationer is assigned to a public or private probation service provider. In Tennessee, very few, if any, misdemeanors are classified as sexual offenses so it is assumed that this search would be to determine if the probationer has a prior conviction for a sexual offense or a violent sexual offense. Presumably, such a search would be routinely conducted as part of an initial assessment of the probationer or any such information would be noted on the court order sentencing the person to probation.

(8) Provide more than $11-million in added funding:

• $3-million for technology
• $3.9-million for electronic monitoring
• $3.6-million for prison bed construction
• $1.3-million for data sharing

This is the amount Governor Bush stated was appropriated to fund the Jessica Lunsford Act. It is not known if Florida has a different method by which the cost of a proposed bill is determined, but from the fiscal notes attached to bills introduced during the 104th General Assembly, $11,000,000 would not appear to be sufficient to implement even the statewide GPS tracking system and the mandatory 25 year sentences for aggravated sexual battery of a child under 13 years of age that are mandated by the Jessica Lunsford Act.