2005-2006 Bill 1153: Sex Offender Treatment, Criminal Sexual Conduct - South Carolina

South Carolina General Assembly

116th Session, 2005-2006

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 SJ8

2/16/2006 Senate Referred to Committee on Judiciary SJ8

2/21/2006 Senate Referred to Subcommittee: Hutto (ch), Jackson, Knotts, Bryant

VERSIONS OF THIS BILL

2/16/2006

A BILL

TO AMEND SECTION 163655, 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 TWENTYFIVE PERCENT OF HIS ORIGINAL SENTENCE; TO AMEND SECTIONS 1615395, 1615405, AND 1615410, 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 TWENTYFIVE PERCENT OF HIS ORIGINAL SENTENCE; TO ADD SECTION 2413180 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 2421445 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 2421655 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 449170 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 444830, 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 444880, 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 163655 of the 1976 Code, as last amended by Act 94 of 2005, is further amended to read:

“Section 163655. (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 233430(C) or has been ordered to be included in the sex offender registry pursuant to Section 233430(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 twentyfive 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 1615395 of the 1976 Code, as last amended by Act 2008 of 2004, is further amended to read:

“Section 1615395. (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.

(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.

(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 1615405 of the 1976 Code, as amended by Act 208 of 2004, is further amended to read:

“Section 1615405. (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