H*2072 Session 107 (1987-1988)
H*2072(Rat #0238, Act #0168 of 1987) General Bill, By Fair, M.O. Alexander,
Bailey, B.O. Baker, Barfield, D.M. Beasley, D. Blackwell, P.T. Bradley,
H. Brown, R.B. Brown, J.H. Burriss, M.D. Burriss, T.M. Burriss, C.D. Chamblee,
H.H. Clyborne, M.J. Cooper, R.S. Corning, Davenport, F.L. Day, Elliott,
J.G. Felder, Harvin, Haskins, Hayes, J.C. Hearn, W.H. Jones, R.O. Kay, Kirsh,
J.E. Lockemy, Martin, A.C. McGinnis, R.N. McLellan, D.E. McTeer, Neilson,
J.H. Nesbitt, C.H. Rice, Russell, Sharpe, E.C. Stoddard, D.C. Waldrop,
C.C. Wells, J.B. Wilder, Wilkins and D.E. Winstead
A Bill to designate Sections 16-15-10 through 16-15-250, Code of Laws of South
Carolina, 1976, Article 1 of Chapter 15 of Title 16 of the 1976 Code to be
entitled "Miscellaneous Offenses", to amend the 1976 Code by adding Article 3
in Chapter 15 of Title 16 so as to provide for crimes relating to obscenity,
material harmful to minors, child exploitation, and child prostitution and to
provide penalties, including forfeiture, for violations, to amend the 1976
Code by adding Section 16-3-850 so as to require film processors and photo
finishers who are requested to develop film of children engaging in sexually
explicit conduct to report the name and address of the individual requesting
the development to the law enforcement officials in the locality from which
the film was originally forwarded; to amend Section 16-1-10, as amended,
relating to crimes classified as felonies, so as to include those crimes
designated felonies by the Article added by this Act, and to repeal Sections
16-15-260 through 16-15-440, relating to obscenity.
12/17/86 House Prefiled
12/17/86 House Referred to Committee on Judiciary
01/13/87 House Introduced and read first time HJ-51
01/13/87 House Referred to Committee on Judiciary HJ-52
03/31/87 House Committee report: Favorable with amendment
Judiciary HJ-1472
04/02/87 House Debate adjourned HJ-1600
04/07/87 House Debate adjourned HJ-1644
04/08/87 House Amended HJ-1680
04/08/87 House Objection by Rep. J. Bradley HJ-1682
04/08/87 House Objection by Rep. Holt & Foxworth HJ-1683
04/09/87 House Objection withdrawn by Rep. Holt HJ-1758
04/09/87 House Objection by Rep. T. Rogers & Gregory HJ-1788
04/15/87 House Special order, set for after 2nd read. or other
consideration of S 89 (H-3022) HJ-1896
04/15/87 House Read second time HJ-1916
04/15/87 House Unanimous consent for third reading on next
legislative day HJ-1916
04/16/87 House Read third time and sent to Senate HJ-1967
04/21/87 Senate Introduced and read first time SJ-1396
04/21/87 Senate Referred to Committee on Judiciary SJ-1396
05/07/87 Senate Recalled from Committee on Judiciary SJ-1751
05/26/87 Senate Read second time SJ-2338
05/26/87 Senate Ordered to third reading with notice of
amendments SJ-2338
05/27/87 Senate Amended SJ-2380
05/29/87 Senate Amended SJ-2470
05/29/87 Senate Read third time SJ-2473
05/29/87 Senate Returned SJ-2473
06/02/87 Senate Recalled from House
06/02/87 House Returned HJ-3415
06/02/87 Senate Reconsidered SJ-2510
06/02/87 Senate Amended SJ-2511
06/02/87 Senate Read third time SJ-2511
06/02/87 Senate Returned SJ-2511
06/03/87 House Concurred in Senate amendment and enrolled HJ-3529
06/04/87 Ratified R 238
06/10/87 Signed By Governor
06/10/87 Effective date 10/01/87
06/10/87 Act No. 168
06/24/87 Copies available
(A168, R238, H2072)
AN ACT TO DESIGNATE SECTIONS 16-15-10 THROUGH 16-15-250, CODE OF LAWS OF SOUTH
CAROLINA, 1976, ARTICLE 1 OF CHAPTER 15 OF TITLE 16 OF THE 1976 CODE TO BE
ENTITLED "MISCELLANEOUS OFFENSES", TO AMEND THE 1976 CODE BY ADDING
ARTICLE 3 IN CHAPTER 15 OF TITLE 16 SO AS TO PROVIDE FOR CRIMES RELATING TO
OBSCENITY, MATERIAL HARMFUL TO MINORS, CHILD EXPLOITATION, AND CHILD PROSTITUTION
AND TO PROVIDE PENALTIES, INCLUDING FORFEITURE, FOR VIOLATIONS, TO AMEND THE 1976
CODE BY ADDING SECTION 16-3-850 SO AS TO REQUIRE FILM PROCESSORS
AND PHOTO FINISHERS WHO ARE REQUESTED TO DEVELOP FILM OF CHILDREN ENGAGING IN
SEXUALLY EXPLICIT CONDUCT TO REPORT THE NAME AND ADDRESS OF THE INDIVIDUAL
REQUESTING THE DEVELOPMENT TO THE LAW ENFORCEMENT OFFICIALS IN THE LOCALITY FROM
WHICH THE FILM WAS ORIGINALLY FORWARDED; TO AMEND SECTION 16-1-10, AS AMENDED,
RELATING TO CRIMES CLASSIFIED AS FELONIES, SO AS TO INCLUDE THOSE CRIMES
DESIGNATED FELONIES BY THE ARTICLE ADDED BY THIS ACT, AND TO REPEAL SECTIONS
16-15-260 THROUGH 16-15-440, RELATING TO OBSCENITY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Sections 16-15-10 through 16-15-250 of the 1976 Code are designated
Article 1 of Chapter 15 of Title 16 of the 1976 Code and entitled
"Miscellaneous Offenses".
SECTION 2. Chapter 15 of Title 16 of the 1976 Code is amended by adding:
"Article 3
Obscenity, Material Harmful to Minors, Child
Exploitation, and Child Prostitution.
Section 16-15-305. (A) It is unlawful for any person knowingly to disseminate
obscenity. A person disseminates obscenity within the meaning of this article
if he:
(1) sells, delivers, or provides or offers or agrees to sell, deliver, or
provide any obscene writing, picture, record, or other representation or
description of the obscene;
(2) presents or directs an obscene play, dance, or other performance, or
participates directly in that portion thereof which makes it obscene;
(3) publishes, exhibits, or otherwise makes available anything obscene to
any group or individual; or
(4) exhibits, presents, rents, sells, delivers, or provides; or offers or
agrees to exhibit, present, rent, or to provide: any motion picture, film,
filmstrip, or projection slide, or sound recording, sound tape, or sound track,
video tapes and recordings, or any matter or material of whatever form which is
a representation, description, performance, or publication of the obscene.
(B) For purposes of this article any material is obscene if:
(1) to the average person applying contemporary community standards, the
material depicts or describes in a patently offensive way sexual conduct
specifically defined by subsection (C) of this section;
(2) the average person applying contemporary community standards relating
to the depiction or description of sexual conduct would find that the
material taken as a whole appeals to the prurient
interest in sex;
(3) to a reasonable person, the material taken as a whole lacks serious
literary, artistic, political, or scientific value; and
(4) the material as used is not otherwise protected or privileged under the
Constitutions of the United States or of this State.
(C) As used in this article:
(1) 'sexual conduct' means:
(a) vaginal, anal, or oral intercourse, whether actual or simulated,
normal or perverted,
whether between human beings, animals, or a combination thereof;
(b) masturbation, excretory functions, or lewd exhibition, actual or
simulated, of the genitals, pubic hair, anus, vulva, or female breast nipples
including male or female genitals in a state of sexual stimulation or arousal or
covered male genitals in a discernably turgid state;
(c) an act or condition that depicts actual or simulated bestiality,
sado-masochistic abuse, meaning flagellation or torture by or upon a person who
is nude or clad in undergarments or in a costume which reveals the pubic hair,
anus, vulva, genitals, or female breast nipples, or the condition of being
fettered, bound, or otherwise physically restrained on the part of the one so
clothed;
(d) an act or condition that depicts actual or simulated touching,
caressing, or fondling of, or other similar physical contact with, the covered
or exposed genitals, pubic or anal regions, or female breast nipple, whether
alone or between humans, animals, or a human and an animal, of the same or
opposite sex, in an act ofactual or apparent sexual stimulation or gratification;
or
(e) an act or condition that depicts the insertion of any part of a
person's body, other than the male sexual organ, or of any object into
another person's anus or vagina, except when done
as part of a recognized medical procedure.
(2)'patently offensive' means obviously and clearly disagreeable,
objectionable, repugnant, displeasing, distasteful, or obnoxious to
contemporary standards of decency and propriety within the community.
(3)'prurient interest' means a shameful or morbid interest in nudity, sex,
or excretion and is reflective of an arousal of lewd and lascivious desires and
thoughts.
(4)'person' means any individual, corporation, partnership, association,
firm, club, or other legal or commercial entity.
(5)'knowingly' means having general knowledge
of the content of the subject material or performance, or failing after
reasonable opportunity to exercise reasonable inspection which would have
disclosed the character of the material or performance.
(D) Obscenity must be judged with reference to ordinary adults except that it
must be judged with reference to children or other especially susceptible
audiences or clearly defined deviant sexual groups if it appears from the
character of the material or the circumstances of its dissemination to be
especially for or directed to children or such audiences or groups.
(E) As used in this article, 'community standards' used in determining
prurient appeal and patent offensiveness are the standards of the area from which
the jury is drawn.
(F) It is unlawful for any person knowingly to create, buy, procure, or
process obscene material
with the purpose and intent of disseminating it.
(G) It is unlawful for a person to advertise or
otherwise promote the sale of material represented or held out by them as
obscene.
(H) A person who violates this section is guilty of a felony and upon
conviction must be imprisoned for not more than three years or fined not more
than ten thousand dollars, or both.
(I) Obscene material disseminated, procured, or promoted in violation of this
section is contraband and may be seized by appropriate law enforcement
authorities.
Section 16-15-315. No person shall, as a condition to any sale, allocation,
consignment, or delivery for resale of any paper, magazine,
book, periodical, or publication require that the purchaser or consignee receive
for resale any other article, book, or publication which is obscene within the
meaning of Section 16-15-305 nor shall any person deny or threaten to deny any
franchise or impose or threaten to impose any penalty, financial or otherwise,
by reason of the failure or refusal of any person to accept the articles, books,
or publications, or by reason of the return thereof. A person who violates this
section is guilty of a misdemeanor and upon conviction, must be imprisoned for
not more than one year or fined not more than one thousand dollars, or both.
Section 16-15-325. Any individual who knowingly:
(a) photographs himself or any other individual
or animal for purposes of preparing an obscene film, photograph, negative, slide,
videotapes, or
motion picture for the purpose of dissemination; or
(b) models, poses, acts, or otherwise assists in the preparation of any
obscene film, photograph, negative, slide, videotapes, or motion picture for the
purpose of dissemination is guilty of a misdemeanor and upon conviction must be
imprisoned for not more than one year and fined not more than one thousand
dollars.
Section 16-15-335. Any individual eighteen years of age or older who
knowingly, in any manner, hires, employs, uses, or permits any person under the
age of eighteen years to do or assist in doing any act or thing constituting an
offense under this article and involving any material, act, or thing he knows or
reasonably should know to be obscene within the meaning of Section 16-15-305 is
guilty of a felony and upon conviction must be imprisoned for not more than five
years.
Section 16-15-345. Any individual eighteen years of age or older who knowingly
disseminates to any person under the age of eighteen years any
material which he knows or reasonably should know
to be obscene within the meaning of Section 16-15-305 is guilty of a felony and
upon
conviction must be imprisoned for not more than five years.
Section 16-15-355. Any individual eighteen years of age or older who knowingly
disseminates to any minor twelve years of age or younger any material which he
knows or reasonably should know
to be obscene within the meaning of Section 16-15-305 is guilty of a felony and
upon conviction must be imprisoned for not more than ten years.
Section 16-15-365. Any person who wilfully and knowingly exposes the private
parts of his person in a lewd and lascivious manner and in the presence of any
other person, or aids or abets any such act, or who procures another to perform
such act, or any person, who as owner, manager, lessee, director, promoter, or
agent, or in any other capacity knowingly hires, leases, or permits the land,
building, or premises of which he is owner, lessee, or tenant, or over which he
has control, to be used for purposes of any such act, is guilty of a misdemeanor
and upon conviction must be imprisoned for not more than six months or fined not
more than five hundred dollars, or both.
Section 16-15-375. The following definitions apply to Section 16-15-385,
disseminating or exhibiting to minors harmful material or performances; Section
16-15-395, first degree sexual exploitation of a minor; Section 16-15-405, second
degree sexual exploitation of a
minor; Section 16-15-415, promoting prostitution of a minor; and Section
16-15-425, participating in prostitution of a minor.
(1) 'Harmful to minors' means that quality of any material or performance that
depicts sexually
explicit nudity or sexual activity and that, taken as a whole, has the following
characteristics:
(a) the average adult person applying contemporary community standards would
find that the material or performance has a predominant tendency to appeal to a
prurient interest of minors in sex; and
(b) the average adult person applying contemporary community standards would
find that the depiction of sexually explicit nudity or sexual activity in the
material or performance is
patently offensive to prevailing standards in the
adult community concerning what is suitable for minors; and
(c) to a reasonable person, the material or performance taken as a whole
lacks serious literary, artistic, political, or scientific value for minors.
(2) 'Material' means pictures, drawings, video recordings, films, or other
visual depictions or representations but not material consisting entirely of
written words.
(3) 'Minor' means an individual who is less than eighteen years old.
(4) 'Prostitution' means engaging or offering to engage in sexual activity
with or for another in exchange for anything of value.
(5) 'Sexual activity' includes any of the following acts or simulations
thereof:
(a) masturbation, whether done alone or with another human or animal;
(b) vaginal, anal, or oral intercourse, whether done with another human or
an animal;
(c) touching, in an act of apparent sexual stimulation or sexual abuse, of
the clothed or unclothed genitals, pubic area, or buttocks of another person or
the clothed or unclothed breasts of a human female;
(d) an act or condition that depicts bestiality, sado-masochistic abuse,
meaning flagellation or torture by or upon a person who is nude or clad in
undergarments or in a costume which reveals the pubic hair, anus, vulva,
genitals, or female breast nipples, or the condition of being fettered, bound,
or otherwise physically restrained on the part of the one so clothed;
(e) excretory functions;
(f) the insertion of any part of a person's body, other than the male sexual
organ, or of any
object into another person's anus or vagina,
except when done as part of a recognized medical procedure.
(6) 'Sexually explicit nudity' means the showing of:
(a) uncovered, or less than opaquely covered,
human genitals, pubic area, or buttocks, or the nipple or any portion of the
areola of the human female breast; or
(b) covered human male genitals in a discernably turgid state.
Section 16-15-385. (A) A person commits the offense of disseminating harmful
material to minors if, knowing the character or content of the material, he:
(1) sells, furnishes, presents, or distributes to a minor material that is
harmful to minors; or
(2) allows a minor to review or peruse material that is harmful to minors.
(B) A person commits the offense of exhibiting a harmful performance to a
minor if, with or without consideration and knowing the character or content of
the performance, he allows a minor to view a live performance which is harmful
to minors.
(C) Except as provided in item (3) of this subsection, mistake of age is not
a defense to a prosecution under this section. It is an affirmative defense
under this section that:
(1) the defendant was a parent or legal guardian of a minor, but this item
does not apply
when the parent or legal guardian exhibits or disseminates the harmful material
for the sexual gratification of the parent, guardian, or minor.
(2) the defendant was a school, church, museum, public library, governmental
agency, medical clinic, or hospital carrying out its legitimate function; or an
employee or agent of such an organization acting in that capacity and carrying
out a legitimate duty of his employment.
(3) before disseminating or exhibiting the harmful material or performance,
the defendant requested and received a driver's license, student identification
card, or other official governmental or educational identification card
or paper indicating that the minor to whom the material or performance was
disseminated or exhibited was at least eighteen years old, and the defendant
reasonably believed the minor was at least eighteen years old.
(D) A person who violates this section is guilty of a misdemeanor and upon
conviction must be imprisoned for not more than five years or fined not more than
five thousand dollars, or both.
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 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 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 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, or
duplicates for sale or pecuniary gain material that contains a visual
representation depicting a
minor engaged in sexual activity.
(B) In a prosecution under this section, the trier of fact may infer that a
participant in a sexual activity depicted in material as a minor through its
title, text, visual representations, or otherwise, is a minor.
(C) Mistake of age is not a defense to a prosecution under this section.
(D) An individual who violates this section is guilty of a felony and upon
conviction must be imprisoned for not less than three years nor more
than ten years. No part of the minimum sentence of imprisonment may be suspended
nor is the individual convicted eligible for parole until he
has served the minimum term of imprisonment. Sentences imposed pursuant to this
section shall run consecutively with and commence at the expiration of any other
sentence being served by the person sentenced.
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, or
duplicates material that contains a visual representation of a minor engaged in
sexual activity; or
(2) distributes, transports, exhibits, receives, sells, purchases,
exchanges, or solicits material that contains a visual representation of a minor
engaged in sexual activity.
(B) In a prosecution under this section, the trier of fact may infer that a
participant in sexual activity depicted in material as a minor through its title,
text, visual representations, or otherwise, is a minor.
(C) Mistake of age is not a defense to a prosecution under this section.
(D) An individual who violates this section is guilty of a felony and upon
conviction must be imprisoned for not less than two years nor more than six
years. No part of the minimum sentence may be suspended nor is the individual
convicted eligible for parole until he has served the minimum sentence.
Section 16-15-415. (A) An individual commits the offense of promoting
prostitution of a minor if he knowingly:
(1) entices, forces, encourages, or otherwise
facilitates a minor to participate in prostitution; or
(2) supervises, supports, advises, or promotes the prostitution of or by a
minor.
(B) Mistake of age is not a defense to a prosecution under this section.
(C) An individual who violates this section is guilty of a felony and upon
conviction must be imprisoned for not less than three years nor more than ten
years. No part of the minimum sentence may be suspended nor is the individual
convicted eligible for parole until he has served the minimum sentence. Sentences
imposed pursuant to this section shall run consecutively with and shall commence
at the expiration of any other sentence being served by the individual sentenced.
Section 16-15-425. (A) An individual commits the offense of participating in
the prostitution of a minor if he is not a minor and he patronizes
a minor prostitute. As used in this section, 'patronizing a minor prostitute'
means:
(1) soliciting or requesting a minor to participate in prostitution;
(2) paying or agreeing to pay a minor, either
directly or through the minor's agent, to participate in prostitution; or
(3) paying a minor, or the minor's agent, for
having participated in prostitution, pursuant to a prior agreement.
(B) Mistake of age is not a defense to a prosecution under this section.
(C) An individual who violates this section is guilty of a felony and upon
conviction must be imprisoned for not less than two years nor more than six
years. No part of the minimum sentence may be suspended nor is the individual
convicted eligible for parole until he has served the minimum term. Sentences
imposed pursuant to this
section shall run consecutively with and shall commence at the expiration of any
other sentence being served by the individual sentenced.
Section 16-15-435. (A) A search warrant or arrest warrant for a violation of
Sections 16-15-305, 16-15-315, or 16-15-325 may be issued
only upon request of a circuit solicitor.
(B) Following seizure of allegedly obscene property pursuant to a warrant
requested by a solicitor, and issued by a neutral and detached magistrate based
on supporting affidavits, any interested party may request and the court having
appropriate jurisdiction must promptly conduct an
adversarial hearing for the purpose of obtaining a judicial determination, based
on a preponderance of the evidence, of the obscenity issue.
Section 16-15-445. (A) All equipment used directly by a person in committing
a violation of
Section 16-15-305, 16-15-395 or 16-15-405, including necessary software, may be
seized by the law enforcement agency making the arrest and ordered forfeited by
the court in which the conviction was obtained.
(B) Prior to entering a forfeiture order, the court must conduct a hearing to
determine ownership and the rights of innocent third parties with respect to the
property, and notice of the hearing must be given to all interested parties. The
court must incorporate into its forfeiture order provisions necessary to protect
the interests of innocent third parties.
(C) Subject to the limitations of subsection (B), property forfeited pursuant
to court order must be destroyed by the arresting law enforcement agency, unless
that law enforcement agency can show good cause for retaining the property.
Ownership of property so retained vests in the arresting law enforcement agency
which may use the property in the performance of its duties, destroy it, or sell
it at public auction. Retained property may be sold at public auction after
giving notice, in a newpaper of general circulation in the county, of the date,
time, and place of the auction and a description of the property to be auctioned.
After payment of the expenses of the auction, one-half of the net proceeds may
be retained by the arresting law enforcement agency, and one-half must be
remitted
to the State Treasurer for deposit to the credit of the Victim's Compensation
Fund."
SECTION 3. Article 8, Chapter 3, Title 16 of the 1976 Code is amended by
adding:
"Section 16-3-850. Any retail or wholesale film processor or photo
finisher who is requested to develop film of a child younger than eighteen years
of age or appearing to be younger than eighteen years of age who is engaging in
sexual conduct, sexual performance, or a sexually explicit posture shall report
the name and address of the individual requesting the development to law
enforcement officials in the state and county or municipality from which the film
was originally forwarded. Compliance with this section does not give rise to any
civil liability on the part of anyone making the report."
SECTION 4. All proceedings pending and rights and liabilities existing,
acquired, or incurred at the time this act takes effect are saved and may be
consummated according to the law in force when they were commenced. This act may
not be construed to affect any prosecution pending or begun before the effective
date of this act.
SECTION 5. In addition to the crimes classified as felonies in Section 16-1-10
of the 1976 Code, violations of Sections 16-15-305, 16-15-335, 16-15-345,
16-15-355, 16-15-395, 16-15-405, 16-15-415, and 16-15-425, all added to the 1976
Code by this act, are declared felonies.
SECTION 6. Sections 16-15-260 through 16-15-440 of the 1976 Code are repealed.
SECTION 7. This act takes effect October 1, 1987. |