S 807 Session 112 (1997-1998)
S 0807 General Bill, By Fair
A BILL TO AMEND SECTION 23-3-490, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO THE RELEASE OF INFORMATION TO THE PUBLIC CONCERNING THE
NAMES OF PERSONS REQUIRED TO REGISTER WITH THE SEX OFFENDER REGISTRY, SO AS TO
PROVIDE FURTHER CIRCUMSTANCES UNDER WHICH THE NAME OF AN OFFENDER MAY BE
RELEASED TO A PERSON WHO HAS REASON TO BELIEVE THAT AN OFFENDER IS LIVING
WITHIN A ONE-MILE RADIUS OF HIS RESIDENCE.
06/04/97 Senate Introduced and read first time SJ-76
06/04/97 Senate Referred to Committee on Judiciary SJ-76
05/20/98 Senate Committee report: Favorable with amendment
Judiciary SJ-25
05/21/98 Senate Amended SJ-23
05/21/98 Senate Read second time SJ-23
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
May 21, 1998
S. 807
Introduced by Senator Fair
S. Printed 5/21/98--S.
Read the first time June 4, 1997.
A BILL
TO AMEND SECTION 23-3-490, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
RELEASE OF INFORMATION TO THE PUBLIC CONCERNING
THE NAMES OF PERSONS REQUIRED TO REGISTER WITH
THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE
FURTHER CIRCUMSTANCES UNDER WHICH THE NAME OF
AN OFFENDER MAY BE RELEASED TO A PERSON WHO HAS
REASON TO BELIEVE THAT AN OFFENDER IS LIVING
WITHIN A ONE-MILE RADIUS OF HIS RESIDENCE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Article 7, Chapter 3 of Title 23 of the 1976 Code, as
last amended by Act 444 of 1996, is further amended to read:
"Article 7
Sex Offender Registry
Section 23-3-400. The intent of this article is to promote the state's
fundamental right to provide for the public health, welfare,
and safety of its citizens. Notwithstanding this legitimate state
purpose, these provisions are not intended to violate the guaranteed
constitutional rights of those who have violated our nation's laws.
The sex offender registry will provide law enforcement with the
tools needed in investigating criminal offenses. Statistics show that
sex offenders often pose a high risk of re-offending. Additionally,
law enforcement's efforts to protect communities, conduct
investigations, and apprehend offenders who commit sex
offenses, are impaired by the lack of information about these
convicted offenders who live within the law enforcement agency's
jurisdiction.
Section 23-3-410. The registry is under the direction of the chief
of the State Law Enforcement Division (SLED) and shall contain
information the chief considers necessary to assist law enforcement
in the location of persons convicted of certain offenses. SLED shall
develop and operate the registry to collect, analyze, and maintain
information, ; to make information available to every
enforcement agency in this State and in other states,;
and to establish a security system to ensure that only authorized
persons may gain access to information gathered under this article.
Section 23-3-420. The State Law Enforcement Division shall
promulgate regulations to implement the provisions of this article.
Section 23-3-430. (A) Any person, regardless of age, residing in
the State of South Carolina who in this State has been
convicted of, adjudicated delinquent for, pled guilty
or nolo contendere to in this State of an offense
described below, or who has been convicted, adjudicated delinquent,
pled guilty or nolo contendere in any comparable court in the United
States, or who has been convicted, adjudicated delinquent, pled guilty
or nolo contendere in the United States federal courts of a similar
offense, or who has been convicted of, adjudicated delinquent
of for, pled guilty or nolo contendere to an offense
for which the person was required to register in the state where the
conviction or plea occurred shall be required to register pursuant to
the provisions of this article.
(B) For purposes of this article, a person who remains in this State
for a total of thirty days during a twelve-month period is a resident of
this State.
(C) For purposes of this article, a person who has been
convicted of, pled guilty or nolo contendere to, or been
adjudicated delinquent for any of the following offenses shall be
referred to as an offender:
(1) criminal sexual conduct in the first degree (Section
16-3-652);
(2) criminal sexual conduct in the second degree (Section
16-3-653);
(3) criminal sexual conduct in the third degree (Section
16-3-654);
(4) criminal sexual conduct with minors, first degree (Section
16-3-655(1));
(5) criminal sexual conduct with minors, second degree
(Section 16-3-655(2) and (3). 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
consensual sexual conduct, as contained in Section
16-3-655(3), or consensual sexual conduct between persons
under the age of sixteen years of age, the convicted
person is not an offender and is not required to register pursuant to
the provisions of this article;
(6) engaging a child for sexual performance (Section 16-3-810);
(7) producing, directing, or promoting sexual performance by
a child (Section 16-3-820);
(8) criminal sexual conduct: assaults with intent to commit
(Section 16-3-656);
(9) incest (Section 16-15-20);
(10) buggery (Section 16-15-120);
(11) committing or attempting lewd act upon child under
fourteen sixteen (Section 16-15-140);
(12) eavesdropping or peeping (Section 16-17-470);
(13) violations of Article 3, Chapter 15 of Title 16 involving a
minor which violations are felonies;
(14) A person, regardless of age, who has been convicted,
adjudicated delinquent, pled guilty or nolo contendere in this
State, or who has been convicted, adjudicated delinquent,
pled guilty or nolo contendere in a comparable court in the United
States, or who has been convicted, adjudicated delinquent,
pled guilty or nolo contendere in the United States federal courts of
indecent exposure or of a similar offense in other jurisdictions is
required to register pursuant to the provisions of this article if the
court makes a specific finding on the record that based on the
circumstances of the case the convicted person should register as a
sex offender.
(15) kidnapping (Section 16-3-910) except when the court
makes a finding on the record that the offense did not include a
criminal sexual offense.
(D) Upon conviction, adjudication of delinquency, guilty
plea, or plea of nolo contendere of a person of an offense not
listed in this article, the presiding judge may order as a condition of
sentencing that the person be included in the sex offender registry if
good cause is shown by the solicitor.
(E) SLED shall remove a person's name and any other
information concerning that person from the sex offender registry
immediately upon notification by the Attorney General that the
person's adjudication, conviction, guilty plea, or plea of nolo
contendere for an offense listed in Section 23-3-430(C) was reversed,
overturned, or vacated on appeal and a final judgement has been
rendered.
Section 23-3-440. (1) Prior to an offender's release from the
Department of Corrections after completion of the term of
imprisonment, or being placed on parole, the Department of
Corrections or the Department of Probation, Parole, and
Pardon Services, as applicable, shall notify the sheriff of the county
where the offender intends to reside and SLED that the offender is
being released and has provided an address within the jurisdiction of
the sheriff for that county. The Department of Corrections shall
provide verbal and written notification to the offender that he must
register with the sheriff of the county in which he intends to reside
within twenty-four hours of his release. Further, the Department of
Corrections shall obtain descriptive information of the offender,
including a current photograph prior to release.
(2) The Department of Probation, Parole, and Pardon
Services shall notify SLED and the sheriff of the county where an
offender is residing when the offender is sentenced to probation or is
a new resident of the State who must be supervised by the
department. The Department of Probation, Parole, and
Pardon Services also shall provide verbal and written notification to
the offender that he must register with the sheriff of the county in
which he intends to reside. An offender who is sentenced to
probation must register within ten days of sentencing. Further, the
Department of Probation, Parole, and Pardon Services shall
obtain descriptive information of the offender, including a current
photograph that is to be updated annually prior to expiration of the
probation sentence.
(3) The Department of Juvenile Justice shall notify SLED and the
sheriff of the county where an offender is residing when the offender
is released from a Department of Juvenile Justice facility or when the
Department of Juvenile Justice is required to supervise the actions of
the juvenile. The Department of Juvenile Justice must provide verbal
and written notification to the juvenile and his parent, legal guardian,
or custodian that the juvenile must register with the sheriff of the
county in which the juvenile resides. The juvenile must register
within twenty-four hours of his release or within ten days if he was
not confined to a Department of Juvenile Justice's facility. The
parents or legal guardian of a person under seventeen years of age
who is required to register under this chapter must ensure that the
person has registered.
(4) The Department of Corrections, the Department of Probation,
Parole, and Pardon Services, and the Department of Juvenile
Justice shall provide to SLED the initial registry information
regarding the offender prior to his release from imprisonment or
relief of supervision. This information shall be collected in the event
the offender fails to register with his county sheriff.
Section 23-3-450. The offender shall register with the sheriff of the
county in which he resides. To register, the offender must provide
information as prescribed by SLED. The county sheriff shall then
forward to SLED the registry information and any updated
information regarding the offender. The sheriff in the county
in which the offender resides shall forward all required registration
information to SLED within five business days. A copy of this
information must be kept by the sheriff's department. The county
sheriff shall ensure that all information required by SLED is secured
and shall establish specific times of the day during which an offender
may register. An offender shall not be considered to have registered
until all information prescribed by SLED has been obtained
provided to the sheriff.
Section 23-3-460. Any person required to register under this article
shall be required to register annually for a period of life. The
offender shall register at the sheriff's department in the county where
he resides. A person determined by a court to be a sexually
violent predator pursuant to state law is required to verify registration
and be photographed every ninety days by the sheriff's department in
the county in which he resides unless the person is committed to the
custody of the State, whereby verification shall be held in abeyance
until his release.
If any person required to register under this article changes his
address within the same county, that person must send written notice
of the change of address to the county sheriff within ten days of
establishing the new residence.
If any person required to register under this article changes his
address into another county in South Carolina, the person must
register with the county sheriff in the new county within ten days of
establishing the new residence. The person must also provide written
notice within ten days of the change of address in the previous county
to the county sheriff with whom the person last registered.
If any person required to register under this article moves outside
of South Carolina, the person must provide written notice within ten
days of the change of address to a new state to the county sheriff with
whom the person last registered.
Any person required to register under this article who moves to
South Carolina from another state and is not under the jurisdiction of
the Department of Corrections, the Department of Probation,
Parole, and Pardon Services, or the Department of Juvenile
Justice at the time of moving to South Carolina, must register
within sixty ten days of establishing residence in this
State.
The sheriff of the county in which the person resides must
forward all changes to any information provided by a person required
to register under this article to SLED within five business days.
The South Carolina Department of Public Safety, Division of Motor
Vehicles, shall inform, in writing, any new resident who applies for
a driver's license, a chauffeur's license, vehicle tag, or
a state identification card of the obligation of those
sex offenders to register. The department also shall
inform, in writing, a person renewing a driver's license, chauffeur's
license, vehicle tag, or state identification card of the requirement for
sex offenders to register.
Section 23-3-470. (A) It is the duty of the offender to contact the
sheriff in order to register. If an offender fails to register as required
by this article, he must be punished as provided in subsection (B).
(B)(1) A person convicted for a first offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of
ninety days, no part of which shall be suspended nor probation
granted.
(2) A person convicted for a second offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of one
year, no part of which shall be suspended nor probation granted.
(3) A person convicted for a third or subsequent offense is guilty
of a felony and must be imprisoned for a mandatory period of five
years, three years of which shall not be suspended nor probation
granted.
Section 23-3-475. (A) Anyone who knowingly and wilfully gives
false information when registering as an offender pursuant to this
article must be punished as provided in subsection (B).
(B)(1) A person convicted for a first offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of
ninety days, no part of which shall be suspended nor probation
granted.
(2) A person convicted for a second offense is guilty of a
misdemeanor and must be imprisoned for a mandatory period of one
year, no part of which shall be suspended nor probation granted.
(3) A person convicted for a third or subsequent offense is
guilty of a felony and must be imprisoned for a mandatory period of
five years, three years of which shall not be suspended nor probation
granted.
Section 23-3-480. (A) An arrest on charges of failure to register,
service of an information or complaint for failure to register, or
arraignment on charges of failure to register, constitutes
actual notice of the duty to register. A person charged with the crime
of failure to register who asserts as a defense the lack of notice of the
duty to register shall register immediately following actual notice
through arrest, service, or arraignment. Failure to register after notice
as required by this article constitutes grounds for filing another
charge of failure to register. Registering following arrest, service, or
arraignment on charges does not relieve the offender from the
criminal penalty for failure to register before the filing of the original
charge.
(B) Section 23-3-470 shall not apply to a person convicted of an
offense provided in Section 23-3-420 23-3-430 prior
to July 1, 1994, and who was released from custody prior to July 1,
1994, unless the person has been served notice of the duty to register
by the sheriff of the county in which the person resides. This person
shall register within ten days of the notification of the duty to
register.
Section 23-3-490. (A) Information collected for the offender
registry is open to public inspection, upon request to the county
sheriff. A sheriff must release information regarding a specific
person who is or persons required to register under
this article to a member of the public if the request is made in writing,
on a form prescribed by SLED, stating the name of the
person requesting the information, and the name or address of the
person or persons about whom the information is sought.
The information must be disclosed only to the person making the
request. The sheriff must provide the person making the request with
the full name names of the requested registered
sex offender offenders, any aliases, any
other identifying physical characteristics, the each
offender's date of birth, a current the home
address on file, the offense for which the offender was
required to register pursuant to Section 23-3-430, and the date, city,
and state of conviction. A photocopy of a current photograph must
also be provided. The provisions of this article do not authorize
SLED to release information to the public unless a request is made in
writing stating the name of the person making the request and the
name of the person about whom information is sought. SLED is only
authorized to release to the public the name of the county in which
the offender is registered. Otherwise, SLED is not authorized to
release any information contained in the registry to anyone other than
law enforcement agencies, investigative agencies, and those agencies
authorized by the court.
(B) A person may request on a form prescribed by SLED
a list of registered sex offenders residing in a city, county, or zip
code zone or a list of all registered sex offenders within the State
from SLED. A person may request information regarding a specific
person who is required to register under this article from SLED if the
person requesting the information provides the name or address of the
person about whom the information is sought. SLED shall provide
the person making the request with the full names of the requested
registered sex offenders, any aliases, any other identifying physical
characteristics, each offender's date of birth, the home address on file,
the offense for which the offender was required to register pursuant
to Section 23-3-430, and the date, city, and state of conviction. The
State Law Enforcement Division may charge a reasonable fee to
cover the cost of copying and distributing sex offender registry lists
as provided for in this section. These funds must be used for the sole
purpose of offsetting the cost of providing sex offender registry
lists.
(B)(C) Nothing in subsection (A) prohibits a
sheriff from disseminating information contained in that subsection
regarding a specific person who is required to register under this
article if the sheriff or another law enforcement officer is
presented with facts giving rise to a reasonable suspicion of criminal
activity and has reason to believe the release of this information
will deter the criminal activity.
(C)(D) For purposes of this article, information on
a juvenile person adjudicated delinquent in family
court for an offense listed in Section 23-3-430 must not be
made available to the public in accordance with the following
provisions:
(1) If a person has been adjudicated delinquent for
committing any of the following offenses, information must be made
available to the public pursuant to subsections (A) and (B):
(a) criminal sexual conduct in the first degree (Section
16-3-652);
(b) criminal sexual conduct in the second degree (Section
16-3-653);
(c) criminal sexual conduct with minors, first degree (Section
16-3-655(1));
(d) criminal sexual conduct with minors, second
degree (Section 16-3-655(2) and (3));
(e) engaging a child for sexual performance (Section
16-3-810);
(f) producing, directing, or promoting sexual performance by
a child (Section 16-3-820); or
(g) kidnapping (Section 16-3-910).
(2) Information shall only be made available, upon request, to
victims of or witnesses to the offense, public or private schools, child
day care centers, family day care centers, businesses or organizations
that primarily serve children, women, or vulnerable adults, as defined
in Section 43-35-10(11), for persons adjudicated delinquent for
committing any of the following offenses:
(a) criminal sexual conduct in the third degree (Section
16-3-654);
(b) criminal sexual conduct: assaults with intent to commit
(Section 16-3-656);
(c) criminal sexual conduct with a minor: assaults with intent
to commit (Section 16-3-656);
(d) committing or attempting lewd act upon child under
sixteen (Section 16-15-140);
(e) peeping (Section 16-17-470);
(f) incest (Section 16-15-20);
(g) buggery (Section 16-15-120);
(h) violations of Article 3, Chapter 15 of Title 16 involving
a minor, which violations are felonies; or
(i) indecent exposure.
(3) A person who is under twelve years of age at the time
of his adjudication, conviction, guilty plea, or plea of nolo contendere
for a first offense of any offense listed in Section 23-3-430(C) shall
be required to register pursuant to the provisions of this chapter;
however, the person's name or any other information collected for the
offender registry shall not be made available to the public.
(4) A person who is under twelve years of age at the time of his
adjudication, conviction, guilty plea, or plea of nolo contendere for
a second offense of any offense listed in Section 23-3-430(C) shall
be required to register pursuant to the provisions of this chapter, and
all registry information concerning that person shall be made
available to the public pursuant to items (1) and (2).
(5) Nothing in this section shall prohibit the dissemination
of all registry information to law enforcement.
(E) For purposes of this section, use of computerized or electronic
transmission of data or other electronic or similar means is permitted.
Section 23-3-500. A court must order that a child under twelve
years of age who is convicted of, pleads guilty or nolo contendere to,
or is adjudicated for an offense listed in Section 23-3-430(C) be
given appropriate psychiatric or psychological treatment to address
the circumstances of the offense for which the child was convicted,
pled guilty or nolo contendere, or adjudicated.
Section 23-3-510. A person who commits a criminal
offense using information from the sex offender registry disclosed to
him pursuant to Section 23-3-490, upon conviction, must be punished
as follows:
(1) For a misdemeanor offense, the maximum fine prescribed by
law for the offense may be increased by not more than one thousand
dollars, and the maximum term of imprisonment prescribed by law
for the offense may be increased by not more than six months.
(2) For a felony offense, the maximum term of imprisonment
prescribed by law for the offense may be increased by not more than
five years.
Section 23-3-520. (A) An appointed or elected public official,
public employee, or public agency is immune from civil liability for
damages for any act or omission under this article unless the
official's, employee's, or agency's conduct constitutes gross
negligence.
(B) Nothing in this chapter imposes an affirmative duty
on a person to disclose to a member of the public information from
the sex offender registry other than on those persons responsible for
providing registry information pursuant to their official duties as
provided for in this chapter.
(C) Nothing in this section may be construed to mean that
information regarding persons on the sex offender registry is
confidential except as otherwise provided by law."
SECTION 2. Section 20-7-7805(A)(6), as added by Act 383 of
1996, is amended to read:
"(6) dismiss the petition or otherwise terminate its
jurisdiction at any time, on the motion of either party or on its own
motion. require that a child under twelve years of age who is
adjudicated delinquent for an offense listed in Section 23-3-430(C)
be given appropriate psychiatric or psychological treatment to
address the circumstances of the offense for which the child was
adjudicated; and
(7) dismiss the petition or otherwise terminate its jurisdiction
at any time on the motion of either party or on its own
motion."
SECTION 3. Section 20-7-8510 of the 1976 Code, as added by
Act 383 of 1996, is amended by adding an appropriately numbered
subsection to read:
"( ) The provisions of this section do not prohibit the
distribution of information pursuant to the provisions of Article 7,
Chapter 3 of Title 23."
SECTION 4. If any section, paragraph, provision, or portion of
this act is held to be unconstitutional or invalid by a court of
competent jurisdiction, this holding shall not affect the
constitutionality or validity of the remaining portions of this act. The
General Assembly hereby declares that the provisions of this act are
severable from each other.
SECTION 5. This act takes effect upon approval by the Governor.
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