South Carolina General Assembly
116th Session, 2005-2006

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A346, R388, S1138

STATUS INFORMATION

General Bill
Sponsors: Judiciary Committee
Document Path: l:\s-jud\bills\mcconnell\jud0049.gfm.doc
Companion/Similar bill(s): 1267

Introduced in the Senate on February 9, 2006
Introduced in the House on March 30, 2006
Last Amended on May 31, 2006
Passed by the General Assembly on June 1, 2006
Governor's Action: June 9, 2006, Signed

Summary: Sex Offender Accountability and Protection of Minors Act of 2006

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
    2/9/2006  Senate  Introduced, read first time, placed on calendar without 
                        reference SJ-7
   2/10/2006          Scrivener's error corrected
   2/14/2006  Senate  Committed to Committee on Finance SJ-15
   3/15/2006  Senate  Committee report: Favorable with amendment Finance SJ-16
   3/16/2006  Senate  Amended SJ-28
   3/21/2006  Senate  Special order, set for 03/21/2006 SJ-25
   3/22/2006  Senate  Debate interrupted SJ-32
   3/23/2006  Senate  Debate interrupted SJ-20
   3/23/2006  Senate  Referred to Subcommittee: Martin (ch), Bryant, Ritchie, 
                        Campsen, Sheheen, Hutto, Knotts
   3/28/2006  Senate  Amended SJ-84
   3/28/2006  Senate  Read second time SJ-84
   3/29/2006          Scrivener's error corrected
   3/29/2006  Senate  Amended SJ-35
   3/29/2006  Senate  Read third time and sent to House SJ-35
   3/30/2006  House   Introduced and read first time HJ-11
   3/30/2006  House   Referred to Committee on Judiciary HJ-11
   3/30/2006          Scrivener's error corrected
   5/25/2006  House   Committee report: Favorable with amendment Judiciary HJ-7
   5/26/2006          Scrivener's error corrected
   5/31/2006  House   Debate adjourned HJ-36
   5/31/2006  House   Amended HJ-102
   5/31/2006  House   Read second time HJ-136
   5/31/2006  House   Roll call Yeas-83  Nays-26 HJ-136
    6/1/2006  House   Read third time and returned to Senate with amendments 
                        HJ-21
    6/1/2006  Senate  Concurred in House amendment and enrolled SJ-82
    6/7/2006          Ratified R 388
    6/9/2006          Signed By Governor
   6/16/2006          Copies available
   6/16/2006          Effective date See Act for Effective Date
   6/23/2006          Act No. 346

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

2/9/2006
2/9/2006-A
2/10/2006
3/15/2006
3/16/2006
3/28/2006
3/29/2006
3/29/2006-A
3/30/2006
5/25/2006
5/26/2006
5/31/2006


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

(A346, R388, S1138)

AN ACT TO AMEND SECTION 16-3-655, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL SEXUAL CONDUCT WITH A MINOR, SO AS TO REVISE THE PENALTIES AND TO PROVIDE FOR THE IMPOSITION OF THE DEATH PENALTY FOR REPEAT OFFENDERS UNDER CERTAIN CIRCUMSTANCES; BY ADDING SECTION 17-23-175 SO AS TO PROVIDE A PROCEDURE FOR ALLOWING AN OUT-OF-COURT STATEMENT MADE TO A THIRD PARTY BY A CHILD VICTIM OR CHILD WITNESS TO BE ADMISSIBLE IN A GENERAL SESSIONS OR FAMILY COURT; TO AMEND SECTION 23-3-540, RELATING TO THE ELECTRONIC MONITORING OF SEX OFFENDERS, SO AS TO ESTABLISH THE PERSONS WHO SHALL OR MAY BE ELECTRONICALLY MONITORED AND TO ESTABLISH THE PROCEDURES FOR MONITORING THESE PERSONS; AND BY ADDING SECTION 23-3-545 SO AS TO PROVIDE A PROCEDURE FOR THE HANDLING OF PERSONS CONVICTED OF WILFULLY VIOLATING A TERM OR CONDITION OF ELECTRONIC MONITORING.

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

Criminal sexual conduct with a minor, penalties, death penalty

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 engages in sexual battery with a victim who is less than eleven years of age; or

(2)    the actor 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).

(B)    A person is guilty of criminal sexual conduct with a minor in the second degree if:

(1)    the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or

(2)    the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen 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. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age. In addition, mistake of age may be used as a defense.

(C)(1)    A person convicted of a violation of subsection (A)(1) is guilty of a felony and, upon conviction, must be imprisoned for a mandatory minimum of twenty-five years, no part of which may be suspended or probation granted, or must be imprisoned for life. In the case of a person pleading guilty or nolo contendere to a violation of subsection (A)(1), the judge must make a specific finding on the record regarding whether the type of conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. In the case of a person convicted at trial for a violation of subsection (A)(1), the judge or jury, whichever is applicable, must designate as part of the verdict whether the conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. If the person has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for first degree criminal sexual conduct with a minor who is less than eleven years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven years of age, he must be punished by death or by imprisonment for life, as provided by this section. For the purpose of determining a prior conviction under this subsection, the person must have been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent on a separate occasion, prior to the instant adjudication, for first degree criminal sexual conduct with a minor who is less than eleven years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven years of age. In order to be eligible for the death penalty pursuant to this section, the sexual battery constituting the current offense and any prior offense must have involved sexual or anal intercourse by a person or intrusion by an object. If any prior offense that would make a person eligible for the death penalty pursuant to this section occurred prior to the effective date of this act and no specific finding was made regarding the nature of the conduct or is an out-of-state or federal conviction, the determination of whether the sexual battery constituting the prior offense involved sexual or anal intercourse by a person or intrusion by an object must be made in the separate sentencing proceeding provided by this section and proven beyond a reasonable doubt and designated in writing by the judge or jury, whichever is applicable. If the judge or jury, whichever is applicable, does not find that the prior offense involved sexual or anal intercourse by a person or intrusion by an object, then the person must be sentenced to imprisonment for life. For purposes of this subsection, imprisonment for life means imprisonment until death.

(2)    A person convicted of a violation of subsection (A)(2) is guilty of a felony and, upon conviction, must be imprisoned for not less than ten years nor more than thirty years, no part of which may be suspended or probation granted.

(3)    A person convicted of a violation of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned for not more than twenty years according to the discretion of the court.

(D)    If the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (D)(1) and (D)(2), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender without the possibility of parole, and when requested by the State or the defendant, the judge must charge the jury in his instructions that life imprisonment means until the death of the defendant without the possibility of parole. No person sentenced to life imprisonment, pursuant to this subsection, is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section. Under no circumstances may a female who is pregnant be executed, so long as she is pregnant or for a period of at least nine months after she is no longer pregnant. When the Governor commutes a sentence of death imposed pursuant to this section to life imprisonment under the provisions of Section 14 of Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the mandatory imprisonment required by this subsection.

(1)    When the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, the court shall conduct a separate sentencing proceeding. In the proceeding, if a statutory aggravating circumstance is found, the defendant must be sentenced to either death or life imprisonment. The proceeding must be conducted by the trial judge before the trial jury as soon as practicable after the lapse of twenty-four hours unless waived by the defendant. If trial by jury has been waived by the defendant and the State, or if the defendant pled guilty, the sentencing proceeding must be conducted before the judge. In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment. Only such evidence in aggravation as the State has informed the defendant in writing before the trial is admissible. This section must not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States, or the State of South Carolina, or the applicable laws of either. The State, the defendant, and his counsel are permitted to present arguments for or against the sentence to be imposed. The defendant and his counsel shall have the closing argument regarding the sentence to be imposed.

(2)    In sentencing a person, upon conviction or adjudication of guilt of a defendant pursuant to this section, the judge shall consider, or he shall include in his instructions to the jury for it to consider, mitigating circumstances otherwise authorized or allowed by law and the following statutory aggravating and mitigating circumstances which may be supported by the evidence:

(a)    Statutory aggravating circumstances:

(i)    The victim's resistance was overcome by force.

(ii)    The victim was prevented from resisting the act because the actor was armed with a dangerous weapon.

(iii)    The victim was prevented from resisting the act by threats of great and immediate bodily harm, accompanied by an apparent power to inflict bodily harm.

(iv)    The victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing his resistance.

(v)    The crime was committed by a person with a prior conviction for murder.

(vi)    The offender committed the crime for himself or another for the purpose of receiving money or a thing of monetary value.

(vii)    The offender caused or directed another to commit the crime or committed the crime as an agent or employee of another person.

(viii)The crime was committed against two or more persons by the defendant by one act, or pursuant to one scheme, or course of conduct.

(ix)    The crime was committed during the commission of burglary in any degree or kidnapping.

(b)    Mitigating circumstances:

(i)        The defendant has no significant history of prior criminal convictions involving the use of violence against another person.

(ii)    The crime was committed while the defendant was under the influence of mental or emotional disturbance.

(iii)    The defendant was an accomplice in the crime committed by another person and his participation was relatively minor.

(iv)    The defendant acted under duress or under the domination of another person.

(v)    The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(vi)    The age or mentality of the defendant at the time of the crime.

(vii)    The defendant was below the age of eighteen at the time of the crime.

The statutory instructions as to statutory aggravating and mitigating circumstances must be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances, which it found beyond a reasonable doubt. The jury, if it does not recommend death, after finding a statutory aggravating circumstance or circumstances beyond a reasonable doubt, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances it found beyond a reasonable doubt. In nonjury cases, the judge shall make the designation of the statutory aggravating circumstance or circumstances. Unless at least one of the statutory aggravating circumstances enumerated in this section is found, the death penalty must not be imposed.

Where a statutory aggravating circumstance is found and a recommendation of death is made, the trial judge shall sentence the defendant to death. The trial judge, before imposing the death penalty, shall find as an affirmative fact that the death penalty was warranted under the evidence of the case and was not a result of prejudice, passion, or any other arbitrary factor. Where a statutory aggravating circumstance is found and a sentence of death is not recommended by the jury, the trial judge shall sentence the defendant to life imprisonment as provided in subsection (D)(4). Before dismissing the jury, the trial judge shall question the jury as to whether or not it found a statutory aggravating circumstance or circumstances beyond a reasonable doubt. If the jury does not unanimously find any statutory aggravating circumstances or circumstances beyond a reasonable doubt, it shall not make a sentencing recommendation. Where a statutory aggravating circumstance is not found, the trial judge shall sentence the defendant to life imprisonment. No person sentenced to life imprisonment under this section is eligible for parole or to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the sentence required by this section. If the jury has found a statutory aggravating circumstance or circumstances beyond a reasonable doubt, the jury shall designate this finding, in writing, signed by all the members of the jury. The jury shall not recommend the death penalty if the vote for such penalty is not unanimous as provided. If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant upon conviction or adjudication of guilt of a defendant pursuant to this section, the trial judge shall dismiss such jury and shall sentence the defendant to life imprisonment, as provided in subsection (D)(4).

(3)    Notwithstanding the provisions of Section 14-7-1020, in cases involving capital punishment a person called as a juror must be examined by the attorney for the defense.

(4)    In a criminal action pursuant to this section, which may be punishable by death, a person may not be disqualified, excused, or excluded from service as a juror by reason of his beliefs or attitudes against capital punishment unless such beliefs or attitudes would render him unable to return a verdict according to law.

(E)(1)    In all cases in which an individual is sentenced to death pursuant to this section, the trial judge shall, before the dismissal of the jury, verbally instruct the jury concerning the discussion of its verdict. A standard written instruction shall be promulgated by the Supreme Court for use in capital cases brought pursuant to this section.

(2)    The verbal instruction shall include:

(a)    the right of the juror to refuse to discuss the verdict;

(b)    the right of the juror to discuss the verdict to the extent that the juror so chooses;

(c)    the right of the juror to terminate any discussion pertaining to the verdict at any time the juror so chooses;

(d)    the right of the juror to report any person who continues to pursue a discussion of the verdict or who continues to harass the juror after the juror has refused to discuss the verdict or communicated a desire to terminate discussion of the verdict; and

(e)    the name, address, and phone number of the person or persons to whom the juror should report any harassment concerning the refusal to discuss the verdict or the juror's decision to terminate discussion of the verdict.

(3)    In addition to the verbal instruction of the trial judge, each juror, upon dismissal from jury service, shall receive a copy of the written jury instruction set forth in subsection (1).

(F)(1)    Whenever the death penalty is imposed pursuant to this section, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of South Carolina. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of South Carolina together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of South Carolina.

(2)    The Supreme Court of South Carolina shall consider the punishment as well as any errors by way of appeal.

(3)    With regard to the sentence, the court shall determine:

(a)    whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and

(b)    whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (D)(2)(a); and

(c)    whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

(4)    Both the defendant and the State shall have the right to submit briefs within the time provided by the court and to present oral arguments to the court.

(5)    The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:

(a)    affirm the sentence of death; or

(b)    set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of South Carolina in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration. If the court finds error prejudicial to the defendant in the sentencing proceeding conducted by the trial judge before the trial jury as outlined under subsection (D)(1), the court may set the sentence aside and remand the case for a resentencing proceeding to be conducted by the same or a different trial judge and by a new jury impaneled for such purpose. In the resentencing proceeding, the new jury, if the defendant does not waive the right of a trial jury for the resentencing proceeding, shall hear evidence in extenuation, mitigation, or aggravation of the punishment in addition to any evidence admitted in the defendant's first trial relating to guilt for the particular crime for which the defendant has been found guilty.

(6)    The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on all legal errors, the factual substantiation of the verdict, and the validity of the sentence.

(G)(1)    Whenever the solicitor seeks the death penalty pursuant to this section, he shall notify the defense attorney of his intention to seek such penalty at least thirty days prior to the trial of the case. At the request of the defense attorney, the defense attorney shall be excused from all other trial duties ten days prior to the term of court in which the trial is to be held.

(2)(a)    Whenever any person is charged with first degree criminal sexual conduct with a minor who is less than eleven years and the death penalty is sought, the court, upon determining that such person is unable financially to retain adequate legal counsel, shall appoint two attorneys to defend such person in the trial of the action. One of the attorneys so appointed shall have at least five years' experience as a licensed attorney and at least three years' experience in the actual trial of felony cases, and only one of the attorneys so appointed shall be the public defender or a member of his staff. In all cases where no conflict exists, the public defender or member of his staff shall be appointed if qualified. If a conflict exists, the court shall then turn first to the contract public defender attorneys, if qualified, before turning to the Office of Indigent Defense.

(b)    Notwithstanding any other provision of law, the court shall order payment of all fees and costs from funds available to the Office of Indigent Defense for the defense of the indigent. Any attorney appointed shall be compensated at a rate not to exceed fifty dollars per hour for time expended out of court and seventy-five dollars per hour for time expended in court. Compensation shall not exceed twenty-five thousand dollars and shall be paid from funds available to the Office of Indigent Defense for the defense of indigent represented by court-appointed, private counsel.

(3)(a)    Upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment, from funds available to the Office of Indigent Defense, of fees and expenses not to exceed twenty thousand dollars as the court shall deem appropriate. Payment of such fees and expenses may be ordered in cases where the defendant is an indigent represented by either court-appointed, private counsel or the public defender.

(b)    Court-appointed counsel seeking payment for fees and expenses shall request these payments from the Office of Indigent Defense within thirty days after the completion of the case. For the purposes of this statute, exhaustion of the funds shall occur if the funds administered by the Office of Indigent Defense and reserved for death penalty fees and expenses have been reduced to zero. If either the Death Penalty Trial Fund or the Conflict Fund has been exhausted in a month and the other fund contains money not scheduled to be disbursed in that month, then the Indigent Defense Commission must transfer a sufficient amount from the fund with the positive fund balance to the fund with no balance and pay the obligation to the extent possible.

(4)    Payment in excess of the hourly rates and limit in subsection (2) or (3) is authorized only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred. Upon a finding that timely procurement of such services cannot await prior authorization, the court may authorize the provision of and payment for such services nunc pro tunc.

(5)    After completion of the trial, the court shall conduct a hearing to review and validate the fees, costs, and other expenditures on behalf of the defendant.

(6)    The Supreme Court shall promulgate guidelines on the expertise and qualifications necessary for attorneys to be certified as competent to handle death penalty cases brought pursuant to this section.

(7)    The Office of Indigent Defense shall maintain a list of death penalty qualified attorneys who have applied for and received certification by the Supreme Court as provided for herein. In the event the court-appointed counsel notifies the chief administrative judge in writing that he or she does not wish to provide representation in a death penalty case, the chief administrative judge shall advise the Office of Indigent Defense which shall forward a name or names to the chief administrative judge for consideration. The appointment power is vested in the chief administrative judge. The Office of Indigent Defense shall establish guidelines as are necessary to ensure that attorneys' names are presented to the judges on a fair and equitable basis, taking into account geography and previous assignments from the list. Efforts shall be made to present an attorney from the area or region where the action is initiated.

(8)    The payment schedule set forth herein, as amended by Act 164 of 1993, shall apply to any case for which trial occurs on or after July 1, 1993.

(9)    Notwithstanding another provision of law, only attorneys who are licensed to practice in this State and residents of this State may be appointed by the court and compensated with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense. This proviso shall not pertain to any case in which counsel has been appointed on the effective date of this act.

(10)    The judicial department biennially shall develop and make available to the public a list of standard fees and expenses associated with the defense of an indigent person in a death penalty case.

(H)    Notwithstanding any other provision of law, in any trial pursuant to this section where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument."

Admissibility of out-of-court statements of a child under the age of twelve

SECTION    2.    Chapter 23, Title 17 of the 1976 Code is amended by adding:

"Section 17-23-175.    (A)    In a general sessions court proceeding or a delinquency proceeding in family court, an out-of-court statement of a child is admissible if:

(1)    the statement was given in response to questioning conducted during an investigative interview of the child;

(2)    an audio and visual recording of the statement is preserved on film, videotape, or other electronic means, except as provided in subsection (F);

(3)    the child testifies at the proceeding and is subject to cross-examination on the elements of the offense and the making of the out-of-court statement; and

(4)    the court finds, in a hearing conducted outside the presence of the jury, that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.

(B)    In determining whether a statement possesses particularized guarantees of trustworthiness, the court may consider, but is not limited to, the following factors:

(1)    whether the statement was elicited by leading questions;

(2)    whether the interviewer has been trained in conducting investigative interviews of children;

(3)    whether the statement represents a detailed account of the alleged offense;

(4)    whether the statement has internal coherence; and

(5)    sworn testimony of any participant which may be determined as necessary by the court.

(C)    For purposes of this section, a child is:

(1)    a person who is under the age of twelve years at the time of the making of the statement or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of making the statement; and

(2)    a person who is the alleged victim of, or witness to, a criminal act for which the defendant, upon conviction, would be required to register pursuant to the provisions of Article 7, Chapter 3, Title 23.

(D)    For purposes of this section an investigative interview is the questioning of a child by a law enforcement officer, a Department of Social Services case worker, or other professional interviewing the child on behalf of one of these agencies, or in response to a suspected case of child abuse.

(E)(1)    The contents of a statement offered pursuant to this section are subject to discovery pursuant to Rule 5 of the South Carolina Rules of Criminal Procedure.

(2)    If the child is twelve years of age or older, an adverse party may challenge the finding that the child functions cognitively, adaptively, or developmentally under the age of twelve.

(F)    Out-of-court statements made by a child in response to questioning during an investigative interview that is visually and auditorily recorded will always be given preference. If, however, an electronically unrecorded statement is made to a professional in his professional capacity by a child victim or witness regarding an act of sexual assault or physical abuse, the court may consider the statement in a hearing outside the presence of the jury to determine:

(1)    the necessary visual and audio recording equipment was unavailable;

(2)    the circumstances surrounding the making of the statement;

(3)    the relationship of the professional and the child; and

(4)    if the statement possesses particularized guarantees of trustworthiness.

After considering these factors and additional factors the court deems important, the court will make a determination as to whether the statement is admissible pursuant to the provisions of this section."

Electronic monitoring, criminal sexual conduct with a minor, offenses

SECTION    3.    Section 23-3-540 of the 1976 Code, as added by Act 141 of 2005, is amended to read:

"Section 23-3-540.    (A)    Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, the court must order that the person, upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(B)    Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for any other offense listed in subsection (G), the court may order that the person upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(C)    A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(D)    A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a term of probation, parole, community supervision, or a community supervision program, may be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(E)    A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(F)    A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a provision of this article, may be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(G)    This section applies to a person who has been:

(1)    convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses:

(a)    criminal sexual conduct with a minor in the first degree (Section 16-3-655(A));

(b)    criminal sexual conduct with a minor in the second degree (Section 16-3-655(B)). If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from illicit consensual sexual conduct, as contained in Section 16-3-655(B)(2), provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, then the convicted person is not required to be electronically monitored pursuant to the provisions of this section;

(c)    engaging a child for sexual performance (Section 16-3-810);

(d)    producing, directing, or promoting sexual performance by a child (Section 16-3-820);

(e)    criminal sexual conduct: assaults with intent to commit (Section 16-3-656) involving a minor;

(f)    committing or attempting a lewd act upon a child under sixteen (Section 16-15-140);

(g)    violations of Article 3, Chapter 15 of Title 16 involving a minor;

(h)    kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent; or

(2)    ordered as a condition of sentencing to be included in the sex offender registry pursuant to Section 23-3-430(D) for an offense involving a minor, except that the provisions of this item may not be construed to apply to a person eighteen years of age or less who engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age as provided in Section 16-3-655(B)(2).

(H)    The person shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the person is committed to the custody of the State. Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. The person shall serve a copy of the petition upon the solicitor of the circuit and the Department of Probation, Parole and Pardon Services. The court must hold a hearing before ordering the person to be released from the electronic monitoring requirements of this section, unless the court denies the petition because the person is not eligible for release or based on other procedural grounds. The solicitor of the circuit, the Department of Probation, Parole and Pardon Services, and any victims, as defined in Article 15, Chapter 3, Title 16, must be notified of any hearing pursuant to this subsection and must be given an opportunity to testify or submit affidavits in response to the petition. If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section. If the court denies the petition or refuses to grant the order, then the person may refile a new petition every five years from the date the court denies the petition or refuses to grant the order. A person may not petition the court if the person is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140.

(I)    The person shall follow instructions provided by the Department of Probation, Parole and Pardon Services to maintain the active electronic monitoring device in working order. Incidental damage or defacement of the active electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. A person who fails to comply with the reporting requirement of this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.

(J)    The person shall abide by other terms and conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the active electronic monitoring device and electronic monitoring program.

(K)    The person must be charged for the cost of the active electronic monitoring device and the operation of the active electronic monitoring device for the duration of the time the person is required to be electronically monitored. The Department of Probation, Parole and Pardon Services may exempt a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if the Department of Probation, Parole and Pardon Services determines that exceptional circumstances exist such that these payments cause a severe hardship to the person. The payment of the cost must be a condition of supervision of the person and a delinquency of two months or more in making payments may operate as a violation of a term or condition of the electronic monitoring. All fees generated by this subsection must be retained by the Department of Probation, Parole and Pardon Services, carried forward, and applied to support the active electronic monitoring of sex offenders.

(L)    A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an active electronic monitoring device is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. This subsection does not apply to a person or agent authorized by the Department of Probation, Parole and Pardon Services to perform maintenance and repairs to the active electronic monitoring devices.

(M)(1)    A person who completes his term of incarceration and the maximum term of probation, parole, or community supervision and who wilfully violates a term or condition of electronic monitoring, as ordered by the court or determined by the Department of Probation, Parole and Pardon Services is guilty of a felony and, upon conviction, must be sentenced in accordance with the provisions of Section 23-3-545.

(2)    Notwithstanding the provisions of Section 24-21-290, information gathered by a probation agent pursuant to the provisions of Section 24-21-540 is admissible in a criminal prosecution.

(N)    The Department of Corrections shall notify the Department of Probation, Parole and Pardon Services of the projected release date of an inmate serving a sentence, as described in this section, at least one hundred eighty days in advance of the person's release from incarceration. For a person sentenced to one hundred eighty days or less, the Department of Corrections shall immediately notify the Department of Probation, Parole and Pardon Services.

(O)    When an inmate serving a sentence as described in this section is released on electronic monitoring, a victim who has previously requested notification and the sheriff's office in the county where the person is to be released must be notified in accordance with the requirements of Article 15, Chapter 3 of Title 16.

(P)    As used in this section, '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 a person's location and that timely reports or records the person's presence near or within a crime scene or prohibited area or the person's departure from a specified geographic location.

(Q)    Except for juveniles released from the Department of Corrections, all juveniles adjudicated delinquent in family court, who are required to be monitored pursuant to the provisions of this article by the Department of Probation, Parole and Pardon Services, or who are ordered by a court to be monitored must be supervised, while under the jurisdiction of the family court or Board of Juvenile Parole, by the Department of Juvenile Justice. The Department of Probation, Parole and Pardon Services shall report to the Department of Juvenile Justice all violations of the terms or conditions of electronic monitoring for all juveniles supervised by the department, for as long as the family court or Juvenile Parole Board has jurisdiction over the juvenile. If the Department of Juvenile Justice determines that a juvenile has violated a term or condition of electronic monitoring, the department shall immediately notify local law enforcement of the violation."

Electronic monitoring, violations

SECTION    4.    Article 7, Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Section 23-3-545.    (A)    If a person is convicted of wilfully violating a term or condition of active electronic monitoring pursuant to Section 23-3-540(M), the court may impose other terms and conditions considered appropriate and may continue the person on active electronic monitoring, or the court may revoke the active electronic monitoring and impose a sentence of up to ten years for the violation. A person who is incarcerated for a revocation is eligible to earn work credits, education credits, good conduct credits, and other credits which would reduce the sentence for the violation to the same extent he would have been eligible to earn credits on a sentence of incarceration for the underlying conviction. A person who is incarcerated for a revocation pursuant to the provisions of this subsection is not eligible for parole.

(B)    If a person's electronic monitoring is revoked by the court and the court imposes a period of incarceration for the revocation, the person must be placed back on active electronic monitoring when the person is released from incarceration.

(C)    A person may be sentenced for successive revocations, with each revocation subject to a ten-year sentence. The maximum aggregate amount of time the person may be required to serve when sentenced for successive revocations may not exceed the period of time the person is required to remain on the sex offender registry."

Defense of constitutional challenge, Office of the Attorney General

SECTION    5.    Expenses incurred relating to the defense of a constitutional challenge to the application of the provisions of Section 16-3-655, relating to the imposition of the death penalty, must be borne in their entirety by the Office of the Attorney General. The Office of the Attorney General is solely responsible for the defense of these actions and the Prosecution Coordination Commission and the offices of the individual circuit solicitors in the State must be held harmless.

Intent, conflicts

SECTION    6.    The General Assembly is aware that this act amends sections of the South Carolina Code of Laws that are also amended in S.1267 of 2006, and it is the intent of the General Assembly that the provisions of this act control in their entirety as to those code sections.

Savings clause

SECTION    7.    The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

Severability clause

SECTION    8.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

Time effective

SECTION    9.    This act takes effect on July 1, 2006, except that the provisions of Section 3 regarding the requirements of active electronic monitoring of certain offenders by the Department of Probation, Parole and Pardon Services does not take effect until the General Assembly funds the department to the extent necessary to implement those provisions.

Ratified the 7th day of June, 2006.

Approved the 9th day of June, 2006.

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This web page was last updated on Friday, December 4, 2009 at 3:35 P.M.