S 0189  General Bill, By Shealy, Hutto and Jackson

Similar(H 3277)
 A BILL TO AMEND SECTION 63-7-1640(C)(1)(d) OF THE 1976 CODE, RELATING TO
 FAMILY PRESERVATION AND REUNIFICATION, TO ALLOW THE DEPARTMENT OF SOCIAL
 SERVICES TO FOREGO REASONABLE EFFORTS TO REUNIFY A FAMILY IN THE CASE OF
 TORTURE; TO AMEND SECTION 63-7-2570 OF THE 1976 CODE, RELATING TO GROUNDS FOR
 TERMINATION OF PARENTAL RIGHTS, TO ADD TORTURE, OR CONSPIRING TO COMMIT
 TORTURE, AS A GROUND FOR TERMINATING A PARENT'S RIGHTS; TO AMEND SECTION
 16-3-85 (A) AND (C) OF THE 1976 CODE, RELATING TO HOMICIDE BY CHILD ABUSE, TO
 ADD DEATH OF A CHILD BY TORTURE, OR BY CONSPIRING TO TORTURE, AS ACTIONS
 CONSTITUTING THE OFFENSE, AND TO ESTABLISH CRIMINAL PENALTIES; TO AMEND
 ARTICLE 1, CHAPTER 3, TITLE 16 OF THE 1976 CODE, RELATING TO HOMICIDE, BY
 ADDING SECTION 16-3-100, TO PROVIDE THAT TORTURING A CHILD, OR ALLOWING
 ANOTHER TO TORTURE A CHILD, IS A CRIMINAL OFFENSE, AND TO ESTABLISH PENALTIES;
 AND TO DEFINE NECESSARY TERMS.
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   12/12/18  Senate Prefiled
   12/12/18  Senate Referred to Committee on General
   01/08/19  Senate Introduced and read first time
                     (Senate Journal-page 128)
   01/08/19  Senate Referred to Committee on Family and Veterans'
                     Services (Senate Journal-page 128)
   03/13/19  Senate Committee report: Favorable with amendment Family
                     and Veterans' Services (Senate Journal-page 7)
   03/14/19         Scrivener's error corrected
   03/26/19  Senate Committee Amendment Adopted (Senate Journal-page 19)
   03/27/19         Scrivener's error corrected
   04/03/19  Senate Read second time (Senate Journal-page 21)
   04/09/19  Senate Amended (Senate Journal-page 24)
   04/09/19  Senate Read third time and sent to House
                     (Senate Journal-page 24)
   04/09/19  Senate Roll call Ayes-42  Nays-0 (Senate Journal-page 24)
   04/11/19  House  Introduced and read first time (House Journal-page 58)
   04/11/19  House  Referred to Committee on Judiciary
                     (House Journal-page 58)

Indicates Matter Stricken

Indicates New Matter

AS PASSED BY THE SENATE

April 9, 2019

S. 189

Introduced by Senators Shealy, Hutto and Jackson

S. Printed 4/9/19--S.

Read the first time January 8, 2019.

TO AMEND SECTION 63-7-1640(C)(1)(d) OF THE 1976 CODE, RELATING TO FAMILY PRESERVATION AND REUNIFICATION, TO ALLOW THE DEPARTMENT OF SOCIAL SERVICES TO FOREGO REASONABLE EFFORTS TO REUNIFY A FAMILY IN THE CASE OF TORTURE; TO AMEND SECTION 63-7-2570 OF THE 1976 CODE, RELATING TO GROUNDS FOR TERMINATION OF PARENTAL RIGHTS, TO ADD TORTURE, OR CONSPIRING TO COMMIT TORTURE, AS A GROUND FOR TERMINATING A PARENT'S RIGHTS; TO AMEND SECTION 16-3-85 (A) AND (C) OF THE 1976 CODE, RELATING TO HOMICIDE BY CHILD ABUSE, TO ADD DEATH OF A CHILD BY TORTURE, OR BY CONSPIRING TO TORTURE, AS ACTIONS CONSTITUTING THE OFFENSE, AND TO ESTABLISH CRIMINAL PENALTIES; TO AMEND ARTICLE 1, CHAPTER 3, TITLE 16 OF THE 1976 CODE, RELATING TO HOMICIDE, BY ADDING SECTION 16-3-100, TO PROVIDE THAT TORTURING A CHILD, OR ALLOWING ANOTHER TO TORTURE A CHILD, IS A CRIMINAL OFFENSE, AND TO ESTABLISH PENALTIES; AND TO DEFINE NECESSARY TERMS.

Amend Title To Conform

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

SECTION    1.    Section 63-7-20(6)(a)(vi) of the 1976 Code is amended to read:

"(vi)        commits torture or allows torture to be committed against the child; or

(vii)        has committed abuse or neglect as described in subsubitems (i) through (v)(vi) such that a child who subsequently becomes part of the person's household is at substantial risk of one of those forms of abuse or neglect; or"

SECTION    2.    Section 63-7-20 of the 1976 Code is amended by adding an appropriately numbered new item to read:

"( )    The definition of 'torture' is as defined by Section 16-3-100."

SECTION    3.    Section 63-7-1640(C)(1)(d) of the 1976 Code is amended to read:

"(d)    acts the judge finds that constitute torture; or"

SECTION    4.    Section 63-7-2570 of the 1976 Code is amended by adding an appropriately numbered new item at the end to read:

"(    )    A parent has committed torture, has aided or abetted in committing torture, or has conspired to or knowingly allowed another to commit torture against the child."

SECTION    5.    Section 16-3-85 of the 1976 Code is amended to read:

"Section 16-3-85.    (A)    A person is guilty of homicide by child abuse if the person:

(1)    causes the death of a child under the age of eleven while committing child abuse or neglect, and the death occurs under circumstances manifesting an extreme indifference to human life; or

(2)    knowingly aids and abets another person to commit child abuse or neglect, and the child abuse or neglect results in the death of a child under the age of eleven;

(3)    causes the death of a child while committing torture, as defined in Section 16-3-100; or

(4)    knowingly aids and abets another person to commit torture, as defined in Section 16-3-100, and the torture results in the death of a child.

(B)    For purposes of this section, the following definitions apply:

(1)    'child abuse or neglect' means an act or omission by any person which causes harm to the child's physical health or welfare;

(2)    'harm' to a child's health or welfare occurs when a person:

(a)    inflicts or allows to be inflicted upon the child physical injury, including injuries sustained as a result of excessive corporal punishment;

(b)    fails to supply the child with adequate food, clothing, shelter, or health care, and the failure to do so causes a physical injury or condition resulting in death; or

(c)    abandons the child resulting in the child's death.

(C)    Homicide by child abuse is a felony and a person who is convicted of or pleads guilty to homicide by child abuse:

(1)    under subsection (A)(1) may be imprisoned for life but not less than a term of twenty years; or

(2)    under subsection (A)(2) must be imprisoned for a term not exceeding twenty years nor less than ten years;

(3)    under subsection (A)(3) must be imprisoned for life; or

(4)    under subsection (A)(4) must be imprisoned for a term of not less than twenty years.

(D)    In sentencing a person under this section, the judge must consider any aggravating circumstances including, but not limited to, a defendant's past pattern of child abuse or neglect of a child under the age of eleven, and any mitigating circumstances; however, a child's crying does not constitute provocation so as to be considered a mitigating circumstance.

(E)    Prosecution or conviction under this section shall not preclude a prosecution for any other applicable offense, including, but not limited to, murder."

SECTION    6.    Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:

"Section 16-3-100.    (A)    For purposes of this section:

(1)    'Torture' means acts or omissions that:

(a)(i)    include one or more of the following:

(A)    a pattern of assaults;

(B)    psychological maltreatment; or

(C)    omissions of care;

(ii)    are committed upon a child for the purpose of causing severe physical, mental, or emotional pain, which occurs over a period of time, resulting in serious physical or psychological injury or impairment, prolonged suffering, or the risk of permanent disfigurement, dysfunction, or death; and

(iii)    are done with malice or an extreme indifference to the well-being of the child.

(b)    Torture includes, but is not limited to:

(i)        the infliction of severe physical or emotional pain upon a child repeatedly for the purpose of terrorizing the child;

(ii)    the unreasonable or extended binding, restraint, or confinement of a child that results in prolonged suffering or serious physical or psychological injury; or

(iii)    the intentional refusal to provide for the health, safety, medical, or nutritional needs of a child for an extended period of time such that the child suffers or risks serious physical, mental, or emotional harm.

(2)    'Over a period of time' includes a single lengthy tortuous action that occurs for an extended time within a single day or longer, or a pattern of more than one torturous action over the course of a single day, multiple days, or longer.

(B)    It is unlawful for a person to torture a child within his custody or physical control, or knowingly assist, aid, or abet the torture of a child. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, may be imprisoned for life but otherwise must be imprisoned for a term not less than twenty years.

(C)    It is unlawful for a child's parent or guardian, an adult with whom the child's parent or guardian is cohabitating, or any other person responsible for a child's welfare as defined in Section 63-7-20 knowingly to allow another person to torture a child. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be imprisoned for a term of not more than thirty but not less than ten years."

SECTION    7.    Section 16-1-60 of the 1976 Code is amended to read:

"Section 16-1-60.    For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first, second, and third degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-2020); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); torture of a child (16-3-100(B)); domestic violence of a high and aggravated nature (Section 16-25-65); domestic violence in the first degree (Section 16-25-20(B)); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator's failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses."

SECTION    8.    This act takes effect upon approval by the Governor.