South Carolina General Assembly
116th Session, 2005-2006

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S. 1153

STATUS INFORMATION

General Bill
Sponsors: Senators Ritchie, Fair and Verdin
Document Path: l:\council\bills\nbd\12159ac06.doc

Introduced in the Senate on February 16, 2006
Currently residing in the Senate Committee on Judiciary

Summary: Sex offender treatment, criminal sexual conduct

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   2/16/2006  Senate  Introduced and read first time SJ-8
   2/16/2006  Senate  Referred to Committee on Judiciary SJ-8
   2/21/2006  Senate  Referred to Subcommittee: Hutto (ch), Jackson, Knotts, 
                        Bryant

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

2/16/2006

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND SECTION 16-3-655, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL SEXUAL CONDUCT WITH MINORS, SO AS TO PROVIDE THAT CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE OCCURS WHEN COMMITTED AGAINST A CHILD LESS THAN TWELVE, RATHER THAN ELEVEN, YEARS OF AGE, TO ADJUST THE AGE RELATED TO CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE ACCORDINGLY, TO PROVIDE THAT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE WITH A MINOR PERPETRATED BY A PERSON IN A FAMILIAL POSITION OR POSITION OF AUTHORITY OCCURS WHEN THE VICTIM IS EIGHTEEN, RATHER THAN SEVENTEEN YEARS OF AGE, TO REQUIRE WHEN IMPOSING THESE SENTENCES, THE COURT ALSO SHALL REQUIRE THE DEFENDANT, WHEN RELEASED FROM PRISON FOR CONVICTION OF FIRST OR SECOND DEGREE CRIMINAL SEXUAL CONDUCT WITH A MINOR, TO BE PLACED ON PROBATION AND ON AN ACTIVE ELECTRONIC MONITORING DEVICE FOR THE DURATION OF TIME HE IS REQUIRED TO BE ON THE SEXUAL ABUSE REGISTRY, AND TO PROVIDE THAT A PERSON WHO VIOLATES THIS PROBATION MUST BE IMPRISONED FOR UP TO TWENTY-FIVE PERCENT OF HIS ORIGINAL SENTENCE; TO AMEND SECTIONS 16-15-395, 16-15-405, AND 16-15-410, ALL AS AMENDED, ALL RELATING TO SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE SEXUALLY EXPLICIT NUDITY AS A PROHIBITED ACT, TO PROVIDE THAT MISREPRESENTATION OF AGE IS NOT A DEFENSE TO SEXUAL EXPLOITATION OF A MINOR, TO CLARIFY THAT THE MINIMUM SENTENCE FOR FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR IS MANDATORY AND MAY NOT BE SUSPENDED OR PROBATION GRANTED, TO ESTABLISH A FELONY FOR COMMITTING SEXUAL EXPLOITATION OF A CHILD UNDER TWELVE YEARS OF AGE AND TO PROVIDE A MANDATORY MINIMUM SENTENCE OF TEN YEARS, AND TO REQUIRE WHEN IMPOSING THESE SENTENCES, THE COURT ALSO SHALL REQUIRE THE DEFENDANT, WHEN RELEASED FROM PRISON FOR CONVICTION OF FIRST OR SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, TO BE PLACED ON PROBATION AND ON AN ACTIVE ELECTRONIC MONITORING DEVICE FOR THE DURATION OF TIME HE IS REQUIRED TO BE ON THE SEXUAL ABUSE REGISTRY, AND TO PROVIDE THAT A PERSON WHO VIOLATES THIS PROBATION MUST BE IMPRISONED FOR UP TO TWENTY-FIVE PERCENT OF HIS ORIGINAL SENTENCE; TO ADD SECTION 24-13-180 SO AS TO REQUIRE THAT SEX OFFENDER TREATMENT PROVIDED TO A PRISONER INCARCERATED AT THE DEPARTMENT OF CORRECTIONS MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 24-21-445 SO AS TO REQUIRE THE COURT TO ORDER THE MAXIMUM PERIOD OF PROBATION IF A SEX OFFENDER IS PLACED ON PROBATION AND TO PROVIDE THAT ANY SEX OFFENDER TREATMENT ORDERED FOR SUCH AN OFFENDER MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 24-21-655 SO AS TO REQUIRE THAT IF, AS A CONDITION OF PAROLE, A PRISONER MUST RECEIVE SEX OFFENDER TREATMENT, THE TREATMENT MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 44-9-170 SO AS TO REQUIRE THE DEPARTMENT OF MENTAL HEALTH TO ESTABLISH A CERTIFICATION PROCESS FOR SEX OFFENDER TREATMENT PROVIDERS AND TO PROVIDE THAT SEX OFFENDER TREATMENT ORDERED BY THE COURT OR PROVIDED BY THE STATE MUST BE PROVIDED BY A CERTIFIED TREATMENT PROVIDER; TO AMEND SECTION 44-48-30, AS AMENDED, RELATING TO DEFINITIONS IN THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO ADD ASSAULT AND BATTERY OF A HIGH AND AGGRAVATED NATURE TO THE DEFINITION OF A SEXUALLY VIOLENT PREDATOR IF THE ASSAULT WAS A SEXUAL OFFENCE AND TO DEFINE "PROBABLE CAUSE"; TO AMEND SECTION 44-48-80, AS AMENDED, RELATING TO HEARINGS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE THAT THE NAMED PERSON IS A SEXUALLY VIOLENT PREDATOR, SO AS TO PROVIDE THAT IN MAKING THIS DETERMINATION, THE COURT MAY NOT CONSIDER THE FACT THAT A MENTAL HEALTH EVALUATION HAS NOT BEEN CONDUCTED, TO PROVIDE THAT THE NAMED PERSON MAY NOT CHALLENGE THE VALIDITY OF HIS PRIOR CRIMINAL OR INSTITUTIONAL CONVICTIONS, TO PROVIDE THAT IF THE NAMED PERSON REFUSES TO COOPERATE WITH EVALUATION AND TREATMENT, EVIDENCE OF THIS REFUSAL IS ADMISSIBLE, AND TO PROVIDE THAT THE COURT MAY BAR THE NAMED PERSON FROM INTRODUCING EXPERT PSYCHIATRIC EVIDENCE; AND TO PROVIDE THAT THE DEPARTMENT OF MENTAL HEALTH SHALL CONVENE A COMMITTEE TO STUDY THE SEXUALLY VIOLENT PREDATOR ACT TO REVIEW AND EVALUATE THE OPERATION AND EFFECTIVENESS OF THE ACT, TO PROVIDE FOR ITS MEMBERS, AND TO PROVIDE THAT THE COMMITTEE SHALL SUBMIT A REPORT AND RECOMMENDATIONS TO THE GENERAL ASSEMBLY BEFORE JANUARY 1, 2008.

Whereas, the South Carolina General Assembly finds that sex offenders whose victims are minors have an extremely high rate of recidivism; and

Whereas, the General Assembly further finds that such offenders do not respond well to treatment or rehabilitation; and

Whereas, such offenders pose a substantial threat to society, and to children in particular; and

Whereas, such offenses are heinous crimes and devastating to victims, resulting in long term, and often lifetime, problems for these victims; and

Whereas, providing significant periods of incarceration and ongoing electronic monitoring upon release from incarceration would ensure the greatest protection for society and would help to prevent the incalculable toll that such crimes take on their victims. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 16-3-655 of the 1976 Code, as last amended by Act 94 of 2005, is further amended to read:

"Section 16-3-655.    (A)    A person is guilty of criminal sexual conduct with a minor in the first degree if:

(1)    the actor person engages in sexual battery with the victim who is less than eleven twelve years of age; or

(2)    the actor person engages in sexual battery with a victim who is less than sixteen years of age and the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for an offense listed in Section 23-3-430(C) or has been ordered to be included in the sex offender registry pursuant to Section 23-3-430(D).

Upon conviction, the actor person must be punished by imprisonment imprisoned for not less than a mandatory minimum of ten years nor and not more than thirty years, no part of which the minimum sentence may be suspended or probation granted and the individual convicted is not eligible for parole until he has served the minimum sentence.

(B)    A person is guilty of criminal sexual conduct in the second degree with a minor if the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven twelve years of age.

Upon conviction the person must be imprisoned for not more than twenty years.

(C)    A person is guilty of criminal sexual conduct with a minor in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen eighteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.

Upon conviction the person must be imprisoned for not more than ten years.

(D)(1)    The court, in sentencing a person convicted of a violation of subsection (A) or (B) who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services.

(2)    Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A) or (B).

(3)    For purposes of subsection (D)(1), 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."

SECTION    2.    Section 16-15-395 of the 1976 Code, as last amended by Act 2008 of 2004, is further amended to read:

"Section 16-15-395.    (A)    An individual commits the offense of first degree sexual exploitation of a minor if, knowing the character or content of the material or performance, he:

(1)    uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity;

(2)    permits a minor under his custody or control to engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity;

(3)    transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or

(4)    records, photographs, films, develops, duplicates, produces, or creates a digital electronic file for sale or pecuniary gain material that contains a visual representation depicting a minor engaged in sexual activity or sexually explicit nudity.

(B)    In a prosecution under this section, the trier of fact may infer that a participant in a sexual activity or sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.

(C)    Mistake of age or misrepresentation of age is not a defense to a prosecution under this section.

(D)    Except as provided in subsection (E), a person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than a mandatory minimum of three years nor more and not more than twenty years. No part of the minimum sentence of imprisonment may be suspended nor is and the individual convicted is not eligible for parole until he has served the minimum term of imprisonment sentence. Sentences A sentence imposed pursuant to this section subsection must run consecutively with and commence at the expiration of another any other sentence being served by the person sentenced.

(E)    A person who violates a provision of subsection (A) with a victim who is less than twelve years of age is guilty of a felony and, upon conviction, must be imprisoned for a mandatory minimum of ten years and not more than thirty years. No part of the minimum sentence may be suspended and the individual convicted is not eligible for parole until he has served the minimum sentence. A sentence imposed pursuant to this subsection must run consecutively with and commence at the expiration of any other sentence being served.

(F)(1)    The court, in sentencing a person convicted of a violation of subsection (A) or (E) who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services.

(2)    Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A) or (E).

(3)    For purposes of subsection (F)(1), 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."

SECTION    3.    Section 16-15-405 of the 1976 Code, as amended by Act 208 of 2004, is further amended to read:

"Section 16-15-405.    (A)    An individual commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he:

(1)    records, photographs, films, develops, duplicates, produces, or creates digital electronic file material that contains a visual representation of a minor engaged in sexual activity or sexually explicit nudity; or

(2)    distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity or sexually explicit nudity.

(B)    In a prosecution under this section, the trier of fact may infer that a participant in sexual activity or sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.

(C)    Mistake of age or misrepresentation of age is not a defense to a prosecution under this section.

(D)    A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not less than for a mandatory minimum of two years nor and not more than ten years. No part of the minimum sentence may be suspended nor is and the individual convicted is not eligible for parole until he has served the minimum sentence.

(E)(1)    The court, in sentencing a person convicted of a violation of subsection (A) who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services .

(2)    Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A).

(3)    For purposes of subsection (F)(1), 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."

SECTION    4.    Section 16-15-410 of the 1976 Code, as amended by Act 208 of 2004, is further amended to read:

"Section 16-15-410.    (A)    An individual commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity or sexually explicit nudity.

(B)    In a prosecution under this section, the trier of fact may infer that a participant in sexual activity or sexually explicit nudity depicted as a minor through its title, text, visual representation, or otherwise is a minor.

(C)    A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not more than ten years."

SECTION    5.    Article 1, Chapter 13, Title 24 of the 1976 Code is amended by adding:

"Section 24-13-180.    Sex offender treatment provided to a sex offender, as defined in Section 23-3-340, incarcerated in the Department of Corrections must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."

SECTION    6.    Article 5, Chapter 24, Title 21 of the 1976 Code is amended by adding:

"Section 24-21-445.    (A)    If the court sentences a sex offender to probation, the court shall, taking the nature and circumstances of the offense into consideration, order the maximum period of probation pursuant to Section 24-21-440 and may order, as a condition of probation, sex offender treatment.

(B)    Sex offender treatment ordered pursuant to subsection (A) must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."

SECTION    7.    Article 7, Chapter 21, Title 24 of the 1976 Code is amended by adding:

"Section 24-21-655.    If, as a condition of parole, a prisoner is ordered to undergo sex offender treatment, the treatment must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."

SECTION    8.    Chapter 9, Title 44 is amended by adding:

"Section 44-9-170.    (A)    The Department of Mental Health shall promulgate regulations establishing a certification process for sex offender treatment providers. These regulations must include, but are not limited to:

(1)    educational qualifications, professional qualifications, and clinical experience and may include prerequisite professional licensure;

(2)    sex offender treatment specific training requirements;

(3)    standards of treatment;

(4)    continuing education requirements;

(5)    certification application and renewal procedures and fees.

(B)    If treatment is ordered by the court as a condition of sentencing or probation for a sex offender, or if the state provides treatment to a sex offender during incarceration, probation, or parole or to a sexually violent predator pursuant to a civil commitment, as provided for in Chapter 48 of Title 44, the treatment must be provided by a person certified pursuant to subsection (A).

(C)    For purposes of this section 'sex offender' has the same meaning provided for in Section 23-3-430."

SECTION    9.    Section 44-48-30(n) through (p) of the 1976 Code, as last amended by Act 208 of 2004, are further amended to read:

"(n)    assault and battery of a high and aggravated nature, if based on the circumstances of the case, the assault was a sexual offense;

(o)    attempt to commit an offense enumerated in this item as provided by Section 16-1-80; or

(op)    any offense for which the judge makes a specific finding on the record that based on the circumstances of the case, the person's offense should be considered a sexually violent offense.;

(pq)    criminal solicitation of a minor, as provided in Section 16-15-342, if the purpose or intent of the solicitation or attempted solicitation was to:

(i)    persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5); or

(ii)    perform a sexual activity in the presence of the person solicited."

SECTION    10.    Section 44-48-30 of the 1976 Code, as last amended by Act 208 of 2004, is further amended by adding an appropriately numbered item to read:

"( )    'Probable cause' means a state of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the fact to be proved."

SECTION    11.    Section 44-48-80 of the 1976 Code, as amended by Act 176 of 2004, is further amended to read:

"Section 44-48-80.    (A)    Upon filing of a petition, the court must determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines that probable cause exists to believe that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.

(B)    Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. This hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). At this hearing the court must:

(1)    verify the detainee's identity;

(2)    receive evidence and hear arguments from the person and the Attorney General; and

(3)    determine whether probable cause exists to believe that the person is a sexually violent predator.

The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony. However, in determining if there is probable cause, the court must not consider the fact that a mental health evaluation is not available.

(C)    At the probable cause hearing as provided in subsection (B), the detained person has the following rights in addition to any rights previously specified:

(1)    to be represented by counsel;

(2)    to present evidence on the person's behalf;

(3)    to cross-examine witnesses who testify against the person; and

(4)    to view and copy all petitions and reports in the court file.

In no event shall the detained person be permitted, as part of any proceedings under this chapter, to raise challenges to the validity of his prior criminal or institutional convictions or sentences.

(D)    If the probable cause determination is made, the court must direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert approved by the court at the probable cause hearing.

If the detained person refuses to cooperate with the evaluation and treatment as ordered by the court, evidence of this refusal is admissible in proceedings under this chapter, and the court may bar the detained person from introducing expert psychiatric or psychological evidence on his behalf."

SECTION    12.    (A)    The Department of Mental Health shall convene a committee to study the Sexually Violent Predator Act and make a report and recommendations to the General Assembly. the committee must be comprised of: the Governor or his designee, the Director of the Department of Mental Health or his designee, the Director of the Department of Corrections or his designee, the Attorney General or his designee, three members appointed by the Speaker of the House of Representatives and three members appointed by the President Pro Tempore of the Senate. The Committee must be chaired by the Governor, or his designee.

(B)    Among those issues the committee shall study include, but are not limited to the following:

(1)    reviewing the application of the commitment procedures provided for in this chapter;

(2)    evaluating treatment standards and modalities used in the treatment of patients;

(3)    reviewing progress of prisoners committed to the department pursuant to this chapter;

(4)    reviewing the success and recidivism of patients released from commitment.

(C)    The committee shall submit its report and recommendations to the Senate Judiciary Committee and the House Judiciary Committee before January 1, 2008.

SECTION    13.    This act takes effect upon approval by the Governor.

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