Current StatusView additional legislative information at the LPITS web site.Bill Number: 2072 Ratification Number: 238 Act Number 168 Introducing Body: House Subject: Crimes relating to obscenity, material harmful to minors, child exploitation, and child prostitution
(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.