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H*4451 Session 115 (2003-2004)
H*4451(Rat #0258, Act #0208 of 2004) General Bill, By G.M. Smith, Altman,
Clark and Owens
AN ACT TO AMEND SECTIONS 14-7-1610 AND 14-7-1630, BOTH AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, BOTH RELATING TO THE JURISDICTION OF A STATE
GRAND JURY, SO AS TO ELIMINATE THE REQUIREMENT THAT AN OBSCENITY CRIME MUST BE
MULTI-COUNTY IN NATURE OR MUST TRANSPIRE IN MORE THAN ONE COUNTY FOR THE STATE
GRAND JURY TO HAVE JURISDICTION; TO AMEND SECTION 16-15-335, RELATING TO
HIRING A MINOR TO VIOLATE OBSCENITY LAWS, SO AS TO INCREASE THE PENALTY FROM
FIVE TO TEN YEARS; BY ADDING SECTION 16-15-342 SO AS TO CREATE THE OFFENSE OF
CRIMINAL SOLICITATION OF A MINOR, TO PROVIDE CONSENT IS A DEFENSE TO
PROSECUTION IF THE PERSON UNDER THE AGE OF EIGHTEEN IS AT LEAST SIXTEEN YEARS
OLD BUT THAT CONSENT IS NOT A DEFENSE TO PROSECUTION IF THE PERSON IS UNDER
THE AGE OF SIXTEEN, AND TO PROVIDE PENALTIES; TO AMEND SECTION 16-15-345,
RELATING TO THE DISSEMINATION OF OBSCENITY TO A PERSON UNDER THE AGE OF
EIGHTEEN, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND
SECTION 16-15-355, RELATING TO THE DISSEMINATION OF OBSCENITY TO A PERSON
UNDER THE AGE OF TWELVE, SO AS TO INCREASE THE PENALTY FROM TEN TO FIFTEEN
YEARS; TO AMEND SECTION 16-15-385, RELATING TO THE DISSEMINATION OF HARMFUL
MATERIAL TO A MINOR, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO
AMEND SECTION 16-15-387, RELATING TO THE EMPLOYMENT OF A PERSON UNDER THE AGE
OF EIGHTEEN TO APPEAR IN PUBLIC IN A STATE OF SEXUALLY EXPLICIT NUDITY, SO AS
TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-395,
RELATING TO FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE
MAXIMUM PENALTY FROM TEN TO TWENTY YEARS; TO AMEND SECTION 16-15-405, RELATING
TO SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE MAXIMUM
PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-410, AS AMENDED,
RELATING TO THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE
PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-415, RELATING TO
PROMOTING THE PROSTITUTION OF A MINOR, SO AS TO INCREASE THE MAXIMUM PENALTY
FROM TEN TO TWENTY YEARS; TO AMEND SECTION 16-15-445, RELATING TO SEIZURE AND
FORFEITURE OF EQUIPMENT USED IN THE COMMISSION OF OBSCENITY AND SEXUAL
EXPLOITATION OF A MINOR OFFENSES, SO AS TO INCLUDE THE OFFENSES OF CRIMINAL
SOLICITATION OF A MINOR AND THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR; TO
AMEND SECTION 23-3-430, AS AMENDED, RELATING TO CONVICTIONS RENDERING A PERSON
A "SEX OFFENDER", SO AS TO INCLUDE A PERSON CONVICTED OF CRIMINAL SOLICITATION
OF A MINOR; AND TO AMEND SECTION 44-48-30, RELATING TO THE DEFINITIONS
CONTAINED IN THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO INCLUDE THE OFFENSE
OF CRIMINAL SOLICITATION OF A MINOR IN THE DEFINITION OF "SEXUALLY VIOLENT
OFFENSE". - ratified title
12/10/03 House Prefiled
12/10/03 House Referred to Committee on Judiciary
01/13/04 House Introduced and read first time HJ-78
01/13/04 House Referred to Committee on Judiciary HJ-79
01/14/04 House Member(s) request name added as sponsor: Owens
02/18/04 House Committee report: Favorable with amendment
Judiciary HJ-16
02/19/04 House Amended HJ-35
02/19/04 House Read second time HJ-37
02/19/04 House Unanimous consent for third reading on next
legislative day HJ-37
02/20/04 House Read third time and sent to Senate HJ-2
02/24/04 Senate Introduced and read first time SJ-9
02/24/04 Senate Referred to Committee on Judiciary SJ-9
03/30/04 Senate Committee report: Favorable with amendment
Judiciary SJ-12
03/31/04 Scrivener's error corrected
04/06/04 Senate Amended SJ-17
04/06/04 Senate Read second time SJ-17
04/06/04 Senate Ordered to third reading with notice of
amendments SJ-17
04/07/04 Scrivener's error corrected
04/07/04 Senate Read third time and returned to House with
amendments SJ-18
04/14/04 House Concurred in Senate amendment and enrolled HJ-61
04/20/04 Ratified R 258
04/26/04 Signed By Governor
05/03/04 Copies available
05/03/04 Effective date 04/26/04
05/18/04 Act No. 208
H. 4451
(A208, R258, H4451)
AN ACT TO AMEND SECTIONS 14-7-1610 AND 14-7-1630, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, BOTH RELATING TO THE JURISDICTION OF A STATE GRAND JURY, SO AS TO ELIMINATE THE REQUIREMENT THAT AN OBSCENITY CRIME MUST BE MULTI-COUNTY IN NATURE OR MUST TRANSPIRE IN MORE THAN ONE COUNTY FOR THE STATE GRAND JURY TO HAVE JURISDICTION; TO AMEND SECTION 16-15-335, RELATING TO HIRING A MINOR TO VIOLATE OBSCENITY LAWS, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; BY ADDING SECTION 16-15-342 SO AS TO CREATE THE OFFENSE OF CRIMINAL SOLICITATION OF A MINOR, TO PROVIDE CONSENT IS A DEFENSE TO PROSECUTION IF THE PERSON UNDER THE AGE OF EIGHTEEN IS AT LEAST SIXTEEN YEARS OLD BUT THAT CONSENT IS NOT A DEFENSE TO PROSECUTION IF THE PERSON IS UNDER THE AGE OF SIXTEEN, AND TO PROVIDE PENALTIES; TO AMEND SECTION 16-15-345, RELATING TO THE DISSEMINATION OF OBSCENITY TO A PERSON UNDER THE AGE OF EIGHTEEN, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-355, RELATING TO THE DISSEMINATION OF OBSCENITY TO A PERSON UNDER THE AGE OF TWELVE, SO AS TO INCREASE THE PENALTY FROM TEN TO FIFTEEN YEARS; TO AMEND SECTION 16-15-385, RELATING TO THE DISSEMINATION OF HARMFUL MATERIAL TO A MINOR, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-387, RELATING TO THE EMPLOYMENT OF A PERSON UNDER THE AGE OF EIGHTEEN TO APPEAR IN PUBLIC IN A STATE OF SEXUALLY EXPLICIT NUDITY, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-395, RELATING TO FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE MAXIMUM PENALTY FROM TEN TO TWENTY YEARS; TO AMEND SECTION 16-15-405, RELATING TO SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE MAXIMUM PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-410, AS AMENDED, RELATING TO THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCREASE THE PENALTY FROM FIVE TO TEN YEARS; TO AMEND SECTION 16-15-415, RELATING TO PROMOTING THE PROSTITUTION OF A MINOR, SO AS TO INCREASE THE MAXIMUM PENALTY FROM TEN TO TWENTY YEARS; TO AMEND SECTION 16-15-445, RELATING TO SEIZURE AND FORFEITURE OF EQUIPMENT USED IN THE COMMISSION OF OBSCENITY AND SEXUAL EXPLOITATION OF A MINOR OFFENSES, SO AS TO INCLUDE THE OFFENSES OF CRIMINAL SOLICITATION OF A MINOR AND THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR; TO AMEND SECTION 23-3-430, AS AMENDED, RELATING TO CONVICTIONS RENDERING A PERSON A "SEX OFFENDER", SO AS TO INCLUDE A PERSON CONVICTED OF CRIMINAL SOLICITATION OF A MINOR; AND TO AMEND SECTION 44-48-30, RELATING TO THE DEFINITIONS CONTAINED IN THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO INCLUDE THE OFFENSE OF CRIMINAL SOLICITATION OF A MINOR IN THE DEFINITION OF "SEXUALLY VIOLENT OFFENSE".
Be it enacted by the General Assembly of the State of South Carolina:
Legislative intent
SECTION 1. Section 14-7-1610 of the 1976 Code, as last amended by Act 335 of 1992, is further amended to read:
"Section 14-7-1610. It is the intent of the General Assembly to enhance the grand jury system and to improve the ability of the State to detect and eliminate criminal activity. The General Assembly recognizes the great importance of having the federal authorities available for certain investigations. The General Assembly finds that crimes involving narcotics, dangerous drugs, or controlled substances, as well as crimes involving obscenity, often transpire or have significance in more than one county of this State. When this occurs, these crimes are most effectively detected and investigated by a grand jury system with the authority to cross county lines.
The General Assembly finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and eliminate public corruption. Crimes involving public corruption transpire at times in a single county, but often transpire or have significance in more than one county of this State. The General Assembly believes that a state grand jury, possessing considerably broader investigative authority than individual county grand juries, should be available to investigate public corruption offenses in South Carolina.
The General Assembly finds it fundamentally necessary to improve the ability of the State to prevent, detect, investigate, and prosecute crimes that involve the depiction of children under the age of eighteen in sexual activity, and obscenity crimes that are directed toward or involve children under the age of eighteen. The serious and unacceptable threat that these crimes pose to children is self-evident and impacts the State as a whole even if the actual criminal act occurs only in one county of the State. An effective effort to eliminate these heinous crimes requires a coordinated effort, which is accomplished more effectively through the state grand jury system. The effective prevention, detection, investigation, and prosecution of these crimes may require the use and application of state obscenity statutes or common law offenses not specifically directed toward the prevention and punishment of obscenity crimes involving children. Because many of these crimes involve computers, statewide jurisdiction over these crimes is consistent with the jurisdiction of a state grand jury over offenses defined in the Computer Crime Act. The General Assembly concludes that a state grand jury must be available to employ its broad investigative powers in the investigation of child-related obscenity by enabling the state grand jury to investigate all obscenity offenses, regardless of their multi-county impact, or whether they transpire or have significance in more than one county of this State.
The General Assembly finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and investigate crimes involving the election laws including, but not limited to, those named offenses as specified in Title 7, or common law crimes involving the election laws where not superseded, or a crime arising out of or in connection with the election laws, or attempt , aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws.
The General Assembly finds that related criminal activity often arises out of or in connection with crimes involving narcotics, dangerous drugs or controlled substances, obscenity, or public corruption, and that the mechanism for detecting and investigating these related crimes must be improved.
Accordingly, the General Assembly concludes that a state grand jury should be allowed to investigate certain crimes related to narcotics, dangerous drugs, and obscenity and should also be allowed to investigate crimes involving public corruption and election laws.
This section does not limit the authority of a county grand jury, solicitor, or other appropriate law enforcement personnel to investigate, indict, or prosecute offenses within the jurisdiction of the state grand jury."
Jurisdiction of state grand jury
SECTION 2. Section 14-7-1630(A) of the 1976 Code, as last amended by Act 78 of 2003, is further amended to read:
"(A) The jurisdiction of a state grand jury impaneled under this article extends throughout the State. The subject matter jurisdiction of a state grand jury in all cases is limited to the following offenses:
(1) a crime involving narcotics, dangerous drugs, or controlled substances, or a crime arising out of or in connection with a crime involving narcotics, dangerous drugs, or controlled substances including, but not limited to, money laundering as specified in Section 44-53-475, obstruction of justice, perjury or subornation of perjury, or any  attempt, aiding, abetting, solicitation, or conspiracy to commit one of the aforementioned crimes if the crime is of a multi-county nature or has transpired or is transpiring or has significance in more than one county of this State;
(2) a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615, a crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption as defined in Section 14-7-1615, and any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615;
(3) a crime involving the election laws including, but not limited to, those named offenses as specified in Title 7, or a common law crime involving the election laws if not superseded, or a crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws;
(4) a crime involving computer crimes, pursuant to Chapter 16, Title 16, or a conspiracy or solicitation to commit a crime involving computer crimes;
(5) a crime involving terrorism, or a conspiracy or solicitation to commit a crime involving terrorism. Terrorism includes an activity that:
(a) involves an act dangerous to human life that is a violation of the criminal laws of this State;
(b) appears to be intended to:
(i) intimidate or coerce a civilian population;
(ii) influence the policy of a government by intimidation or coercion; or
(iii) affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(c) occurs primarily within the territorial jurisdiction of this State;
(6) a crime involving a violation of Chapter 1, Title 35 of the Uniform Securities Act, or a crime related to securities fraud or a violation of the securities laws; and
(7) a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity."
Penalty increased
SECTION 3. Section 16-15-335 of the 1976 Code is amended to read:
"Section 16-15-335. An individual eighteen years of age or older who, in any manner, knowingly hires, employs, uses, or permits a person under the age of eighteen years to do or assist in doing an act or thing constituting an offense pursuant to 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 ten years."
Offense of criminal solicitation of a minor created
SECTION 4. Chapter 15, Title 16 of the 1976 Code is amended by adding:
"Section 16-15-342. (A) A person eighteen years of age or older commits the offense of criminal solicitation of a minor if he knowingly contacts or communicates with, or attempts to contact or communicate with, a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16-15-375(5) or a violent crime as defined in Section 16-1-60, or with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen.
(B) Consent is a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is at least sixteen years old.
(C) Consent is not a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is under the age of sixteen.
(D) It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity.
(E) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than ten years, or both."
Penalty increased
SECTION 5. Section 16-15-345 of the 1976 Code is amended to read:
"Section 16-15-345. An individual eighteen years of age or older who knowingly disseminates to a person under the age of eighteen years 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."
Penalty increased
SECTION 6. Section 16-15-355 of the 1976 Code is amended to read:
"Section 16-15-355. An individual eighteen years of age or older who knowingly disseminates to a minor twelve years of age or younger 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 fifteen years."
Penalty increased
SECTION 7. Section 16-15-385(D) of the 1976 Code is amended to read:
"(D) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not more than five thousand dollars, or both."
Penalty increased
SECTION 8. Section 16-15-387 of the 1976 Code is amended to read:
"Section 16-15-387. (A) It is unlawful for 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.
(B) Mistake of age is not a defense to a prosecution pursuant to this section. A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not more than five thousand dollars, or both."
Penalty increased
SECTION 9. Section 16-15-395(D) of the 1976 Code, as last amended by Act 81 of 2001, is further amended to read:
"(D) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than three years nor more than twenty 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 must run consecutively with and commence at the expiration of another sentence being served by the person sentenced."
Penalty increased
SECTION 10. Section 16-15-405(D) of the 1976 Code is amended to read:
"(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 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."
Penalty increased
SECTION 11. Section 16-15-410(C) of the 1976 Code, as last amended by Act 73 of 1991, is amended to read:
"(C) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not more than ten years."
Penalty increased
SECTION 12. Section 16-15-415(C) of the 1976 Code is amended to read:
"(C) An individual who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than three years nor more than twenty 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 must run consecutively with and must commence at the expiration of another sentence being served by the individual sentenced."
References added
SECTION 13. Section 16-15-445(A) of the 1976 Code is amended to read:
"(A) All equipment used directly by a person in committing a violation of Sections 16-15-305, 16-15-342, 16-15-395, 16-15-405, or 16-15-410, 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."
Criminal solicitation of a minor referenced
SECTION 14. Section 23-3-430(C) of the 1976 Code, as last amended by Act 363 of 2000, is further amended by adding:
"(20) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:
(a) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5); or
(b) perform a sexual activity in the presence of the person solicited (Section 16-15-342)."
Criminal solicitation of a minor referenced
SECTION 15. Section 44-48-30(2) is amended by adding:
"(p) criminal solicitation of a minor, as provided in Section 16-15-342, if the purpose or intent of the solicitation or attempted solicitation was to:
(i) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5); or
(ii) perform a sexual activity in the presence of the person solicited."
Savings clause
SECTION 16. 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.
Time effective
SECTION 17. This act takes effect upon approval by the Governor.
Ratified the 20th day of April, 2004.
Approved the 26th day of April, 2004.
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