H 3391 Session 112 (1997-1998)
H 3391 General Bill, By Haskins, Allison, Altman, Bailey, Beck, Boan, G. Brown,
H. Brown, Campsen, Chellis, Davenport, Easterday, Edge, Keegan, Kelley, Kirsh,
Littlejohn, McCraw, McKay, W. McLeod, Meacham, Moody-Lawrence, Neilson, Rice,
Simrill, R. Smith, Stuart, Vaughn, Walker, Whatley, Whipper, Wilder, Wilkins,
Witherspoon and Young-Brickell
A BILL TO ENACT THE "EXPLOITATION OF WOMEN'S AND CHILDREN'S ACT OF
1997".-SHORT TITLE
02/05/97 House Introduced and read first time HJ-41
02/05/97 House Referred to Committee on Judiciary HJ-42
A BILL
TO ENACT THE "EXPLOITATION OF WOMEN'S AND
CHILDREN'S ACT OF 1997"; TO AMEND THE CODE OF
LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
16-15-317 SO AS TO PROVIDE THAT THE WRITTEN
CONSENT OF THE RECIPIENT IN THIS STATE IS FIRST
REQUIRED BEFORE A PERSON THROUGH USE OF THE MAIL
OR OTHERWISE MAY SEND TO THAT PERSON MATERIAL
WHICH CONTAINS NUDITY, VIOLENCE,
SEXUALLY-EXPLICIT CONDUCT, OR VULGAR OR PROFANE
LANGUAGE; TO PROVIDE THAT IF THIS CONSENT HAS
BEEN OBTAINED, THE ENVELOPE OR PACKAGE
CONTAINING THIS MATERIAL MUST HAVE CERTAIN
LEGIBLE DISCLOSURES ON IT; TO PROVIDE EXCEPTIONS;
AND TO PROVIDE PENALTIES FOR VIOLATIONS; BY
ADDING SECTION 16-15-340 SO AS TO MAKE IT UNLAWFUL
TO KNOWINGLY SOLICIT A PERSON UNDER EIGHTEEN
YEARS OF AGE THROUGH THE USE OF A COMPUTER OR
OTHER FORM OF COMMUNICATION FOR THE PURPOSE OF
OBSCENE OR SEXUAL ACTIVITY, TO PROVIDE PENALTIES;
AND TO AMEND SECTION 16-3-653, RELATING TO
CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE, SO
AS TO INCREASE THE PENALTY FROM TWENTY TO
TWENTY-FIVE YEARS; TO AMEND SECTION 16-3-655, SO AS
TO INCLUDE AS CRIMINAL SEXUAL CONDUCT IN THE
SECOND DEGREE ENGAGING IN SEXUAL BATTERY WITH
A VICTIM UNDER EIGHTEEN YEARS OF AGE IF THE ACTOR
IS FOUR OR MORE YEARS OLDER THAN THE VICTIM; TO
AMEND SECTION 16-15-305, AS AMENDED, SECTIONS
16-15-315, 16-15-325, 16-15-335, 16-15-345, AND 16-15-355,
SECTIONS 16-15-375 AND 16-15-385, BOTH AS AMENDED,
SECTIONS 16-15-387 AND 16-15-395, SECTION 16-15-405, AS
AMENDED, AND SECTIONS 16-15-410 AND 16-15-445, ALL
RELATING TO THE PREPARATION, PROMOTION,
PROCUREMENT, AND DISSEMINATION OF OBSCENITY AND
MATERIAL HARMFUL TO MINORS, SO AS TO PROVIDE
THAT OBSCENITY AND MATERIAL HARMFUL TO MINORS
INCLUDES COMPUTER GENERATED IMAGES AND THAT
PREPARING, PROMOTING, PROCURING, AND
DISSEMINATING INCLUDES BY THE USE OF COMPUTER OR
A COMPUTER SERVICE OR COMPUTER BULLETIN BOARD
AND TO INCREASE PENALTIES FOR FIRST DEGREE SEXUAL
EXPLOITATION OF A MINOR.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. This act may be cited as the "Exploitation of
Women's and Children's Act of 1997".
SECTION 2. The 1976 Code is amended by adding:
"Section 16-15-317. (A) The written consent of the recipient in
this State is first required before any person through the use of the
United States Postal Service or private delivery carrier may send to
that individual any film, photograph, videotape, negative, slide, book,
magazine, publication, tape, or computer tape or disc including a
compact disc-read only memory (CD-ROM) which contains nudity,
violence, sexually-explicit conduct, or vulgar or profane language.
If this consent has been obtained, a legible disclosure on the outside
of the envelope, box, or package containing this material is also
required disclosing that the material therein contains nudity, violence,
sexually-explicit conduct, or vulgar or profane language.
(B) Any motion picture or other material having a rating as part of
an industry-recognized rating system is exempt from the provisions
of subsection (A).
(C) It is not a prerequisite under this section for the material to be
found obscene under Section 16-15-305 but any such material found
to be obscene also constitutes a per se violation of this section.
(D) Any person violating the provisions of this section is guilty of
a misdemeanor and, upon conviction, must be fined not less than one
thousand dollars or imprisoned for not more than one year, or both.
Each violation constitutes a separate offense."
SECTION 3. The 1976 Code is amended by adding:
"Section 16-15-340. (A) It is unlawful for an individual eighteen
years of age or older to knowingly solicit a person under the age of
eighteen years, through the use of a computer or through the use of
a computer in combination with any other form of communication,
for the purpose of obscenity or sexual activity as provided for in
Section 16-15-375.
(B) A person who violates subsection (A) is guilty of a felony and,
upon conviction, must be imprisoned not less than ten years or more
than thirty years.
(C) For purposes of this section, solicit includes asking,
commanding, threatening, enticing, inveigling, pleading, or
encouraging."
SECTION 4. Section 16-3-653 of the 1976 Code is amended to
read:
"Section 16-3-653. (1) A person is guilty of criminal sexual
conduct in the second degree if the actor uses aggravated coercion to
accomplish sexual battery.
(2) Criminal sexual conduct in the second degree is a felony
punishable by imprisonment for not more than twenty
twenty-five years according to the discretion of the court."
SECTION 5. Section 16-3-655 of the 1976 Code is amended by
adding at the end:
"(4) A person is guilty of criminal sexual conduct in the second
degree if the actor engages in sexual battery with a victim who is less
than eighteen years of age and the actor is at least four years older
than the victim."
SECTION 6. Section 16-15-305(A), (D), (F), (G), and (I) of the
1976 Code are amended to read:
"(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, including by
computer;
(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,
including by computer, 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 computer generated
images, or any matter or material of whatever form which is a
representation, description, performance, or publication of the
obscene.
(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. The dissemination in a
public forum, including public computer bulletin boards, is presumed
available to children and its obscenity must be judged with reference
to children.
(F) It is unlawful for any a person knowingly to
create, buy, procure, or process obscene material, including by
the use of computer, with the purpose and intent of
disseminating it.
(G) It is unlawful for a person to advertise or otherwise
promote, including by the use of computer, the sale of
material represented or held out by them as obscene.
(I) Obscene material disseminated, procured, or promoted in
violation of this section is contraband and may must
be seized by appropriate law enforcement authorities."
SECTION 7. Section 16-15-315 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
'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, computer disc,
or computer service may require that the purchaser or consignee
receive for resale any other article, book, or publication,
computer disc, or computer service which is obscene within the
meaning of Section 16-15-305 nor shall any and no
person may 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, computer disc, or computer service
or by reason of the return thereof of them. 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 8. Section 16-15-325 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"Section 16-15-325. Any An individual who
knowingly:
(a)(1) photographs himself or any other
individual or animal for purposes of preparing an obscene film,
photograph, negative, slide, videotapes, or motion
picture, or computer generated image for the purpose of
dissemination; or
(b)(2) models, poses, acts, or otherwise assists in
the preparation of any obscene film, photograph, negative, slide,
videotapes, or motion picture, or computer generaged
image 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 9. Section 16-15-335 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"Section 16-15-335. Any An 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, including computer generated
images, 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 10. Section 16-15-345 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
Section 16-15-345. Any An individual eighteen
years of age or older who knowingly disseminates, including by
computer, to any a 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. Knowledge under this provision refers to
the act of dissemination and does not require knowledge of the age
of the individual to whom dissemination is completed."
SECTION 11. Section 16-15-355 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"Section 16-15-355. Any An individual eighteen
years of age or older who knowingly disseminates, including by
computer, to any a 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. Knowledge under this provision refers to the act of
dissemination and does not require knowledge of the age of the
individual to whom dissemination is completed."
SECTION 12. Section 16-15-375(2) of the 1976 Code is amended
to read:
"(2) 'Material' means pictures, drawings, video recordings, films,
computer generated images, or other visual depictions or
representations but not material consisting entirely of written words.
'Material' includes written or typed words designed to provide a
computer generated image."
SECTION 13. Section 16-15-375 of the 1976 Code is amended by
adding at the end:
"(7) 'Dissemination' includes utilization of a computer."
SECTION 14. Section 16-15-385(A) of the 1976 Code, as last
amended by Act 358 of 1990, is further amended to read:
"(A) A person commits the offense of disseminating harmful
material to minors if, knowing the character or content of the
material, he the person:
(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.; or
(3) sells, furnishes, presents, or distributes in a public forum,
including public computer bulletin boards, material that is harmful to
minors.
A person does not commit an offense under this subsection when
he the person employs a minor to work in a theater
if the minor's parent or guardian consents to the employment and if
the minor is not allowed in the viewing area when material harmful
to minors is shown."
SECTION 15. Section 16-15-387 of the 1976 Code, as added by
Act 421 of 1994, is amended to read:
"Section 16-15-387. It is unlawful for any a
person to employ a person under the age of eighteen years to appear
in a state of sexually explicit nudity, as defined in Section
16-15-375(6), in a public place, including public computer
bulletin boards.
Mistake of age is not a defense to a prosecution under this section.
A person who violates this section is guilty of a felony and, upon
conviction, must be imprisoned not more than five years or fined not
more than five thousand dollars, or both."
SECTION 16. Section 16-15-395(A)(4) of the 1976 Code, as added
by Act 168 of 1987, is amended to read:
"(4) records, photographs, films, develops, or duplicates,
including by computer, for sale or pecuniary gain material that
contains a visual representation depicting a minor engaged in sexual
activity."
SECTION 17. Section 16-15-395(D) of the 1976 Code is amended
to read:
"(D) An individual who violates this section is guilty of a felony
and, upon conviction, must be imprisoned for not less than
three ten years nor or more than
ten twenty-five years. However, if the minor
involved in this offense is under the age of twelve years, an
individual who violates this section, upon conviction, must be
imprisoned for not less than five years or more than fifteen
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 the
individual 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 18. Section16-15-405 of the 1976 Code, as last amended
by Act 184 of 1993, 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, or duplicates,
including through computer generated images, material that
contains a visual representation of a minor engaged in sexual activity;
or
(2) distributes, transports, exhibits, receives, sells, purchases,
exchanges, or solicits, including by computer, 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) A person who violates the provisions of this section is guilty
of a felony and, upon conviction, must be imprisoned not less than
two years nor or more than five years. However,
if the minor involved in this offense is under the age of twelve years,
an individual who violates this section, upon conviction, must be
imprisoned for not less than four years or 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."
SECTION 19. Section 16-15-410(A) of the 1976 Code, as added by
Act 73 of 1991, is amended to read:
"(A) An individual commits the offense of third degree sexual
exploitation of 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. Possession includes
images stored on computer."
SECTION 20. Section 16-15-445(A) of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"(A) All equipment used directly or indirectly by a
person in committing a violation of Section 16-15-305,
16-15-395, or 16-15-405, or 16-15-410,
including necessary software, may must be seized by
the law enforcement agency making the arrest and ordered forfeited
by the court in which the conviction was obtained."
SECTION 21. This act takes effect upon approval by the Governor.
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