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Current Status Bill Number:View additional legislative information at the LPITS web site.708 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19990408 Primary Sponsor:Judiciary Committee SJ 11 All Sponsors:Judiciary Committee Drafted Document Number:l:\s-jud\bills\\jud0051.11.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Date of Last Amendment:19990602 Subject:Sexual conduct, battery, fondling; definitions and penalties; Crimes, Sex offenses, Domestic abuse, violence History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990602 Committed to Committee 25 HJ Senate 19990602 House amendments amended, returned to House with amendment House 19990602 Read third time, returned to Senate with amendment House 19990601 Amended, read second time House 19990527 Committee report: Favorable with 25 HJ amendment House 19990420 Introduced, read first time, 25 HJ referred to Committee Senate 19990415 Read third time, sent to House Senate 19990414 Read second time Senate 19990408 Introduced, read first time, placed on Calendar without reference Versions of This Bill Revised on April 8, 1999 - Word format Revised on May 27, 1999 - Word format Revised on June 1, 1999 - Word format Revised on June 2, 1999 - Word format
Indicates Matter Stricken
Indicates New Matter
HOUSE AMENDMENTS AMENDED
June 2, 1999
S. 708
S. Printed 6/2/99--S.
Read the first time April 8, 1999.
TO AMEND CHAPTER 3, TITLE 16 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES AGAINST THE PERSON, BY AMENDING SECTION 16-3-800, SO AS TO PROVIDE THAT THE DEFINITION OF SEXUAL CONDUCT INCLUDES LEWD EXHIBITION OF THE FEMALE BREASTS; BY ADDING SECTION 16-3-1600, SO AS TO PROVIDE DEFINITIONS FOR "SEXUAL BATTERY", "SEXUAL FONDLING", "INTIMATE PARTS", AND "ACTOR"; BY ADDING SECTION 16-3-1610, SO AS TO PROHIBIT A PERSON FROM ENTICING A MINOR UNDER SIXTEEN YEARS OF AGE TO ENGAGE IN "SEXUAL BATTERY" OR "SEXUAL FONDLING"; BY ADDING SECTION 16-3-1620, SO AS TO PROVIDE A PENALTY OF NOT MORE THAN TEN YEARS' IMPRISONMENT FOR A VIOLATION OF SECTION 16-3-1610; AND TO AMEND SECTION 16-3-1700, RELATING TO HARASSMENT AND STALKING, SO AS TO EXPAND THE DEFINITION OF HARASSMENT TO INCLUDE ELECTRONIC CONTACT; TO AMEND SECTION 16-15-375, RELATING TO OFFENSES AGAINST MORALITY AND DECENCY, SO AS TO PROVIDE THAT THE DEFINITION OF SEXUAL ACTIVITY INCLUDES TOUCHING ONE'S SELF OR ANOTHER PERSON IN AN ACT OF APPARENT SEXUAL STIMULATION OR SEXUAL ABUSE; TO AMEND SECTION 20-4-40, RELATING TO PROTECTION FROM DOMESTIC ABUSE, SO AS TO PROVIDE THAT A MAGISTRATE MAY NOT CHARGE A FEE FOR FILING A PETITION FOR AN ORDER FOR PROTECTION FROM DOMESTIC ABUSE; TO AMEND SECTION 23-3-430, RELATING TO THE SEX OFFENDER REGISTRY, SO AS TO ADD CERTAIN OFFENSES TO THE LIST OF OFFENSES FOR WHICH A PERSON MUST REGISTER.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-3-800(2) of the 1976 Code is further amended to read:
"(2) 'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals or female breasts."
SECTION 2. Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-1600. As used in this article:
(1) 'Sexual battery' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.
(2) 'Sexual fondling' means the intentional touching or caressing of another person's intimate parts.
(3) 'Intimate parts' includes the primary genital area, anus, groin, inner thighs, or buttocks of a male or female human being and the breasts of a female human being.
(4) 'Actor' means a person accused of sexual enticement of a minor."
SECTION 3. Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-1610. A person is guilty of sexual enticement of a minor if that person entices, solicits, induces, coerces, encourages, persuades, seduces, or lures a person under sixteen years of age, or any person the actor believes to be under sixteen years of age, to engage in sexual battery or sexual fondling with the actor or any other person when the actor is at least three years older than the victim.
Sexual enticement of a minor includes, but is not limited to, oral or written communications including, but not limited to, communications by telephone, computer, or other electronic means."
SECTION 4. Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-1620. A person who violates Section 16-3-1610 is guilty of a felony and, upon conviction, must be imprisoned for not more than ten years."
SECTION 5. Section 16-3-1700(A) of the 1976 Code is amended to read:
"(A) 'Harassment' means a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that causes the person and would cause a reasonable person in his position to suffer mental distress. Harassment may include, but is not limited to:
(1) following the targeted person as he moves from location to location;
(2) visual, physical, electronic, or verbal contact that is initiated, maintained, or repeated after a person has been provided notice that the contact is unwanted;
(3) surveillance of or the maintenance of a presence near the targeted person's:
(a) residence;
(b) place of work;
(c) school; or
(d) another place regularly occupied by the targeted person; and
(4) vandalism and property damage.
Harassment does not include words or conduct that is protected by the Constitution of this State or the United States, and does not apply to law enforcement officers or process servers performing their official duties."
SECTION 6. Section 16-15-375(5)(C) of the 1976 Code is amended to read:
"(C) '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, of one's self or another person, 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."
SECTION 7. Section 20-4-40(f) of the 1976 Code is amended to read:
"(f) The clerk of court or magistrate may not charge a fee for filing a petition for an order for protection from domestic abuse."
SECTION 8. Section 23-3-430(C) of the 1976 Code, as last amended by Act No. 384 of 1998, is further amended to read:
"(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 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 sixteen (Section 16-15-140);
(12) 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) of a person eighteen years of age or older except when the court makes a finding on the record that the offense did not include a criminal sexual offense or an attempted criminal sexual offense;
(16) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(17) criminal sexual conduct when the victim is a spouse (Section 16-3-658);
(18) sexual battery of a spouse (Section 16-3-615);
(19) sexual intercourse with a patient or trainee (Section 44-23-1150);
(20) sexual enticement of a person under sixteen years of age (Section 16-3-1610)."
SECTION 9. Sections 10, 11, 12 and 13 of this act shall be cited as the "Hate Crime Penalty Enhancement Act".
SECTION 10. Chapter 1, Title 16 of the 1976 Code is amended by adding:
"Section 16-1-130. (A) Following a conviction for a crime classified or exempted under Section 16-1-10 or a common law crime, the court may consider as an aggravating circumstance subject to increased penalties as provided in subsection (B), evidence that the defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime in whole or in part because of the offender's belief or perception regarding the race, color, ethnicity, national origin, ancestry, religion, gender, sexual orientation, or disability of that person or the owner or occupant of that property, whether or not the offender's belief or perception was correct.
(B)(1) If the crime committed under subsection (A)(1) is ordinarily a felony, the maximum period of imprisonment provided for the offense may be increased by not more than five years.
(2) If the crime committed under subsection (A)(1) is ordinarily a Class A misdemeanor, the maximum period of imprisonment provided for the offense may be increased to not more than four years.
(3) If the crime committed under subsection (A)(1) is ordinarily a misdemeanor other than a Class A misdemeanor, the maximum period of imprisonment provided for the offense may be increased to not more than three years.
(C) This section provides for the enhancement of the penalties applicable for the underlying crime if the court finds that the aggravating circumstances specified in subsection (A) exist. The defendant may present evidence of mitigating circumstances in order to avoid the enhancement of penalties under this section.
(D) The decision to seek sentencing under this section is in the discretion of the solicitor. When the solicitor determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant's counsel not less than ten days before trial.
(E) This section does not apply to any crime if proof of race, color, national origin or ancestry or proof of any person's belief or perception regarding another person's race, color, ethnicity, national origin, ancestry, religion, gender, sexual orientation, or disability is required for a conviction for that crime."
SECTION 11. Section 16-3-20(C)(a) of the 1976 Code, as last amended by Act 317 of 1996, is further amended to read:
"(C) The judge shall consider, or he shall include in his instructions to the jury for it to consider, mitigating circumstances otherwise authorized or allowed by law and the following statutory aggravating and mitigating circumstances which may be supported by the evidence:
(a) Statutory aggravating circumstances:
(1) The murder was committed while in the commission of the following crimes or acts:
(a) criminal sexual conduct in any degree;
(b) kidnapping;
(c) burglary in any degree;
(d) robbery while armed with a deadly weapon;
(e) larceny with use of a deadly weapon;
(f) killing by poison;
(g) drug trafficking as defined in Sections 44-53-370(e), 44-53-375(B), 44-53-440, or 44-53-445;
(h) physical torture; or
(i) dismemberment of a person.
(2) The murder was committed by a person with a prior conviction for murder.
(3) The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which normally would be hazardous to the lives of more than one person.
(4) The offender committed the murder for himself or another for the purpose of receiving money or a thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, solicitor, former solicitor, or other officer of the court during or because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
(7) The murder of a federal, state, or local law enforcement officer, peace officer or former peace officer, corrections employee or former corrections employee, or fireman or former fireman during or because of the performance of his official duties.
(8) The murder of a family member of an official listed in subitems (5) and (7) above with the intent to impede or retaliate against the official. `Family member' means a spouse, parent, brother, sister, child, or person to whom the official stands in the place of a parent or a person living in the official's household and related to him by blood or marriage.
(9) Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.
(10) The murder of a child eleven years of age or under.
(11) The murder of a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime.
(12) The offender intentionally selected the murdered person in whole or in part because of the offender's belief or perception regarding the race, color, ethnicity, national origin, cultural or social identity, ancestry, religion, gender, political affiliation, sexual orientation, or disability of the murdered person, whether or not the offender's belief or perception was correct."
SECTION 12. Section 20-7-7805(A) of the 1976 Code, as added by Act 383 of 1996, is amended by adding an appropriately numbered item to read:
"( ) make findings that a child intentionally selected the person against whom an offense is committed or selected the property that is damaged or otherwise affected by the offense in whole or in part because of the child's belief or perception regarding the race, color, ethnicity, national origin, cultural or social identity, ancestry, religion, gender, political affiliation, sexual orientation, or disability of that person or the owner or occupant of that property, whether or not the child's belief or perception was correct and order a child for whom such findings are made to participate in an educational program regarding cultural diversity."
SECTION 13. Article 1, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-125. (A) The State Law Enforcement Division (SLED) shall establish and maintain a central repository for the collection and analysis of information regarding crimes where the victims are intentionally selected by reason of their actual or perceived race, color, ethnicity, national origin, cultural or social identity, ancestry, religion, gender, political affiliation, sexual orientation, or disability.
Upon establishing such a repository, SLED shall promulgate regulations providing a procedure to monitor, record, classify, and analyze information relating to crimes apparently directed against individuals or groups, or their property, by reason of their actual or perceived race, color, ethnicity, national origin, cultural or social identity, ancestry, religion, gender, political affiliation, sexual orientation, or disability.
(B) All local law enforcement agencies shall report monthly to SLED concerning such offenses in such form and in such manner as prescribed by rules and regulations adopted by SLED. SLED must summarize and analyze the information received and file an annual report with the Governor, the House and Senate Judiciary committees, and with the Federal Bureau of Investigation, as detailed in the federal Hate Crime Statistics Act.
(C) Any information, records, and statistics collected in accordance with this subsection shall be available for use by any local law enforcement agency, unit of local government, or state agency, to the extent that such information is reasonably necessary or useful to such agency in carrying out the duties imposed upon it by law. Dissemination of such information shall be subject to all confidentiality requirements otherwise imposed by law.
(D) The Criminal Justice Academy Division of the Department of Public Safety shall provide training for police officers in identifying, responding to, and reporting all criminal offenses motivated by race, color, ethnicity, national origin, cultural or social identity, ancestry, religion, gender, political affiliation, sexual orientation, or disability."
SECTION 14. Section 44-48-30(6), (8), and (10) of the 1976 Code, as added by Act 321 of 1998, is further amended to read:
"(6) 'Convicted of a sexually violent offense' means a person has:
(a) pled guilty to, pled nolo contendere to, or been convicted of a sexually violent offense;
(b) been adjudicated delinquent as a result of the commission of;
(c) been charged but determined to be incompetent to stand trial for a sexually violent offense;
(d)(c) been found not guilty by reason of insanity of a sexually violent offense; or
(e)(d) been found guilty but mentally ill of a sexually violent offense.; or
(e) been adjudicated delinquent as a result of the commission of a sexually violent offense and a family court judge orders, at the time of sentencing or at any time prior to the person's release from the confinement, that the person be subject to proceedings under this act. A family court judge must make this determination for a person adjudicated delinquent of a sexually violent offense prior to the person's release from confinement.
(8) 'Total confinement' means incarceration in a secure state or local correctional facility and does not mean any type of community supervision. A secure correctional facility includes a staff secure residential facility or program operated by the State or a facility or program providing services pursuant to a contract with the State. Staff secure residential facilities and programs include those within the Department of Juvenile Justice and facilities and programs within agencies to which a juvenile may be transferred pursuant to Section 20-7-7815. The inclusion of staff secure residential facilities is applicable only when the Board of Juvenile Parole is the releasing authority of the juvenile.
(10) 'Person' means an individual who is a potential or actual subject of proceedings under this act. Person includes an individual who was under seventeen years of age at the time of the offense only when the individual was convicted of or pled guilty or nolo contendere to a sexually violent offense in the court of general sessions or the individual was adjudicated delinquent for a sexually violent offense and a family court judge ordered, at the time of sentencing or at any time prior to the individual's release from confinement, that the individual be subject to proceedings under this act."
SECTION 15. Section 44-48-40 of the 1976 Code is amended to read:
"Section 44-48-40. (A) When a person has been convicted of a sexually violent offense, the agency with jurisdiction shall give written notice to the multidisciplinary team established in Section 44-48-50 and the Attorney General at least ninety days one hundred eighty days before:
(1) the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to prison for no more than ninety days as a result of a revocation of any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;
(2) the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;
(3) the anticipated hearing pursuant to Section 17-24-40(C) of a person who has been found not guilty by reason of insanity of a sexually violent offense; or
(4) release of a person who has been found guilty of a sexually violent offense but mentally ill pursuant to Section 17-24-20.
(B) The written notice to the Attorney General and the multidisciplinary team, provided for in subsection (A), is not required when the Department of Juvenile Justice transfers a juvenile pursuant to Section 20-7-7815 to the custody of another state agency to treat the juvenile for a mental illness or developmental disability, and the Board of Juvenile Parole is the releasing authority of the juvenile.
(C) When a person has been convicted of a sexually violent offense and the Board of Probation, Parole, and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release, the parole or the conditional release shall be granted to be effective ninety days after the date of the order of parole or conditional release. The Board of Probation, Parole, and Pardon Services, the Juvenile Parole Board, or the South Carolina Department of Corrections shall immediately send notice of the parole or conditional release of the person to the multidisciplinary team and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, the person shall be subject to the provisions of this chapter even though the person has been released on parole or conditional release.
(D) The agency with jurisdiction shall inform the multidisciplinary team and the Attorney General of:
(1) the person's name, identifying factors, anticipated future residence, and offense history; and
(2) documentation of institutional adjustment and any treatment received.
(E) The provisions of this section are not jurisdictional, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act.
(F) The agency with jurisdiction, its employees, its officials, individuals contracting, appointed, or volunteering to perform services under this chapter, the multidisciplinary team, and the prosecutor's review committee established in Section 44-48-60 are immune from civil or criminal liability for any good faith conduct under this act."
SECTION 16. Section 44-48-50 of the 1976 Code is amended to read:
"Section 44-48-50. (A) The Director of the Department of Corrections shall appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. A person's records must be provided to the multidisciplinary team when the agency with jurisdiction gives notice to the team and to the Attorney General as provided for in Section 44-48-40. These records must include the person's criminal history including records of convictions and sentencing, victim impact statements, medical records, psychiatric or psychological reports, evaluations, treatment records, discipline records, and any other relevant information. These records shall be used to assist the multidisciplinary team in making its assessment. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 44-48-40, shall assess whether or not the person satisfies the definition of a sexually violent predator. If it is determined that the person satisfies the definition of a sexually violent predator, the multidisciplinary team must forward a report of the assessment and all records provided to the team by the agency with jurisdiction to the prosecutor's review committee. The assessment must be accompanied by all records relevant to the assessment. Membership of the team to review a person convicted of a sexually violent offense shall be composed of:
(1) a representative from the Department of Corrections;
(2) a representative from the Department of Probation, Parole, and Pardon Services;
(3) a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent offenders;
(4) a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and
the Chief Attorney of the Office of Appellate Defense or his designee.
Membership of the team to review a person adjudicated delinquent for a sexually violent offense shall include, in addition to the members listed above, a representative from the Department of Juvenile Justice and a trained, qualified mental health clinician with expertise in treating sexually violent juvenile offenders.
The Director of the Department of Corrections or his designee shall be the chairman of the team.
(B) The provisions of this section are not jurisdictional, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 17. Section 44-48-60 of the 1976 Code is amended to read:
"Section 44-48-60. (A) The Attorney General shall appoint a prosecutor's review committee to review the report and records of each person referred to the committee by the multidisciplinary team. The prosecutor's review committee shall determine whether or not probable cause exists to believe the person is a sexually violent predator. The prosecutor's review committee shall make the probable cause determination within thirty days of receiving the report and records from the multidisciplinary team. The prosecutor's review committee shall include, but not be limited to, a member of the staff of the Attorney General, an elected circuit solicitor, and a victim's representative. The Attorney General or his designee shall be the chairman of the committee. In addition to the records and reports considered pursuant to Section 44-48-50, the committee shall also consider information provided by the circuit solicitor who prosecuted the person.
(B) The provisions of this section are not jurisdictional, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 18. Section 44-48-70 of the 1976 Code is amended to read:
"Section 44-48-70. (A) When the prosecutor's review committee has determined that probable cause exists to support the allegation that the person is a sexually violent predator, the Attorney General may file a petition with the court in the jurisdiction where the person committed the offense. The petition, which must be filed within thirty forty-five days of the probable cause determination by the prosecutor's review committee, shall request that the court make a probable cause determination as to whether the person is a sexually violent predator. The petition must allege that the person is a sexually violent predator and must state sufficient facts that would support a probable cause allegation. The State of South Carolina, or a person or entity acting on behalf of the State of South Carolina, is not required to pay filing fees in proceedings brought under Chapter 48 of Title 44.
(B) The provisions of this section are not jurisdictional, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 19. Section 44-48-80 of the 1976 Code is amended to read:
"Section 44-48-80. (A) Upon filing of a petition, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines that probable cause exists to believe that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.
(B) Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. This hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). If the person is already confined in a secure facility, the hearing must be held no later than seventy-two hours after the person's release date. At this hearing the court shall:
(1) verify the detainee's identity;
(2) receive evidence and hear argument from the person and the Attorney General; and
(3) determine whether probable cause exists to believe that the person is a sexually violent predator.
The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony. In making its showing of probable cause, the State may use hearsay evidence.
(C) At the probable cause hearing as provided in subsection (B), the detained person has the following rights in addition to any rights previously specified:
(1) to be represented by counsel;
(2) to present evidence on the person's behalf;
(3) to cross-examine witnesses who testify against the person; and
(4) to view and copy all petitions and reports in the court file.
(D) If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert approved by the court at the probable cause hearing. The person shall not be released from confinement prior to the conclusion of trial."
SECTION 20. Section 44-48-90 of the 1976 Code is amended to read:
"Section 44-48-90. Within sixty days after the completion of a hearing held pursuant to Section 44-48-80, the court shall conduct a trial to determine whether the person is a sexually violent predator. Within thirty days after the determination of probable cause by the court pursuant to Section 44-48-80, the person or the Attorney General may request, in writing, that the trial be before a jury. If such a request is made, the court shall schedule a trial before a jury at the next available date in the court of common pleas in the county where the offense was committed. If no request is made, the trial must be before a judge in the county where the offense was committed. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and only if the respondent will not be substantially prejudiced. Prior to trial, the parties should exchange information and documents promptly and willingly. However, formal depositions or discovery may be conducted by stipulation of the parties or by court order if a written application is presented to the court. The court order may prescribe the manner, time, conditions, and restrictions of the deposition or discovery.
At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel; and, if the person is indigent, the court shall appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain a qualified expert of his own choosing to perform the examination. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who would like an expert of his own choosing, the court shall determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation for the services is reasonable, the court shall assist the person in obtaining the expert to perform an examination or participate in the trial on the person's behalf. The court shall approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the case or for the same services from any other source."
SECTION 21. The 1976 Code is amended by adding:
"Section 44-48-180. A person committed as a sexually violent predator pursuant to this chapter who has not yet been released pursuant to Sections 44-48-110, 44-48-120, or 44-48-130 and who is subsequently convicted of an offense which results in incarceration shall, upon serving such sentence, be returned to the appropriate facility for the treatment of sexually violent predators without additional proceedings being brought pursuant to this chapter."
SECTION 22. Section 20-7-7815 of the 1976 Code, as last amended by Act 135 of 1997, is further amended to read:
"Section 20-7-7815. (A) No juvenile may be committed to an institution under the control of the Department of Juvenile Justice who is seriously handicapped by mental illness or retardation. If, after a juvenile is referred to the Reception and Evaluation Center, it is determined that the juvenile is mentally ill, as defined in Section 44-23-10, or mentally retarded to an extent that the juvenile could not be properly cared for in its custody, the department through the voluntary admission process or by instituting necessary legal action may accomplish the transfer of the juvenile to another state agency which in its judgment is best qualified to care for the juvenile in accordance with the laws of this State. This legal action must be brought in the juvenile's resident county. The department shall establish standards with regard to the physical and mental health of juveniles whom it can accept for commitment.
(B) When the state agency to which a juvenile is transferred determines that it is appropriate to release from commitment that juvenile, the state agency must submit a request for release to the Juvenile Parole Board. If the Juvenile Parole Board does not grant the request to release the juvenile, the juvenile must be placed in an environment consistent with the provisions of this section.
(C) The director or his designee of a state agency to which a juvenile is transferred, pursuant to this section, is authorized to request state or local law enforcement to take a juvenile into custody and return the juvenile to the facility designated by the agency, if the juvenile is absent from placement without proper authorization. A warrant or court order is not required before the juvenile is taken into custody and returned to the appropriate facility."
SECTION 23. Section 20-7-7805 of the 1976 Code, as last amended by Act 384 of 1998, is further amended by adding a subsection to read:
"(D) When a child is adjudicated delinquent of a sexually violent offense as defined in Section 44-48-30 and committed to the Department of Juvenile Justice, the court must determine at the time of sentencing or at any time prior to the child's release from commitment whether or not the child should be subjected to proceedings under the Sexually Violent Predator Act in Chapter 48 of Title 44."
SECTION 24. Section 23-3-490(A) and (C) of the 1976 Code, as last amended by Act 384 of 1998, is further amended to read:
"(A)(1) 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 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 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. A photocopy of a current photograph must also be provided. The sheriff must provide to a newspaper with general circulation within the county a listing of the registry for publication.
(2) A sheriff providing the offender registry for publication or a newspaper publishing the registry, or any portion of it, is not liable and must not be named as a party in an action to recover damages or seek relief for errors or omissions in the publication of the offender registry; provided, however, if the error or omission was done intentionally, with malice, or in bad faith the sheriff or newspaper is not immune from liability.
(C) Nothing in subsection (A) prohibits a sheriff from disseminating information contained in that subsection (A) regarding a specific person persons who is are required to register under this article if the sheriff or another law enforcement officer has reason to believe the release of this information will deter criminal activity or enhance public safety. The sheriff shall notify the principal of public and private schools, and the administrator of child day care centers, and family day care centers of any offender whose address is within one-half mile of the school or business."
SECTION 25. Section 16-3-85 of the 1976 Code, as added by Act 412 of 1992, is amended to read:
"Section 16-3-85. (A) A person is guilty of homicide by child abuse who:
(1) causes the death of a child under the age of eleven while committing child abuse or neglect as defined in Section 20-7-490 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 as defined in Section 20-7-490 and the child abuse or neglect results in the death of a child under the age of eleven.
(B) 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.
(C) In sentencing a person under this section the judge shall 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.
(D) As contained in this section:
(1) 'child abuse or neglect' means an act or omission by a person resulting in a child's death or harm to a child's physical health or welfare; and
(2) 'Harm to a child's physical health or welfare' occurs when a person:
(a) inflicts or allows to be inflicted physical injury upon a child, which includes injuries sustained as a result of excessive corporal punishment;
(b) fails to supply a child with adequate food, clothing, shelter, or health care, and this failure causes a physical injury or condition that results in death; or
(c) abandons a child which results in the child's death."
SECTION 26. Article 7, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-530. The State Law Enforcement Division shall develop and maintain a protocol manual to be used by contributing agencies in the administration of the sex offender registry."
SECTION 27. Section 44-23-1150 of the 1976 Code, as last amended by Act 136 of 1997, is further amended to read:
"Section 44-23-1150. A person having sexual intercourse committing sexual battery, as defined in Section 16-3-651, with a patient or trainee of a state mental health facility, whether the patient or trainee is within the facility or unlawfully away from the facility, or an employee of a state or local correctional facility having sexual intercourse committing sexual battery with an inmate of that facility, is guilty of a felony and, upon conviction, must be imprisoned not more than ten years.
SECTION 28. If any provision of this act or the application thereof to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable.
SECTION 29. This act takes effect upon approval by the Governor.
This web page was last updated on Wednesday, December 9, 2009 at 9:07 A.M.