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Current Status Bill Number:View additional legislative information at the LPITS web site.3134 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990112 Primary Sponsor:Haskins All Sponsors:Haskins, Meacham-Richardson, Simrill, Leach Drafted Document Number:l:\council\bills\psd\7034ac99.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Exploitation of Women's and Children's Act of 1999, Crimes and Offenses, Obscenity, Sex offenses, Minors History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990112 Introduced, read first time, 25 HJ referred to Committee House 19981216 Prefiled, referred to Committee 25 HJ Versions of This Bill
TO ENACT THE "WOMEN'S AND CHILDREN'S EXPLOITATION ACT OF 1999"; INCLUDING PROVISIONS 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 SECTIONS 16-15-305, 16-15-375, 16-15-385, AND 16-15-405, ALL AS AMENDED, SECTIONS 16-15-315, 16-15-325, 16-15-335, 16-15-345, 16-15-355, 16-15-387, 16-15-395, 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 "Women's and Children's Exploitation Act of 1999."
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, as added by Act 168 of 1987, 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 generated 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, as added by Act 168 of 1987, 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, as last amended by Act 421 of 1994, is further 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, as added by Act 168 of 1987, 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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