South Carolina General Assembly
113th Session, 1999-2000

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Bill 45


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COMMITTEE AMENDMENT ADOPTED AND AMENDED

March 16, 1999

S. 45

Introduced by Senators Jackson, Elliott, Glover and Washington

S. Printed 3/16/99--S.

Read the first time January 12, 1999.

A BILL

TO AMEND CHAPTER 1, TITLE 16 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO FELONIES AND MISDEMEANORS, BY ADDING SECTION 16-1-130 SO AS TO PROVIDE FOR AN INCREASE IN THE PENALTY FOR AN UNDERLYING OFFENSE IF THE OFFENDER INTENTIONALLY SELECTS THE PERSON AGAINST WHOM THE CRIME IS COMMITTED OR SELECTS THE PROPERTY THAT IS 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, 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 ACTOR'S BELIEF OR PERCEPTION WAS CORRECT; TO AMEND SECTION 16-3-20, AS AMENDED, RELATING TO THE PUNISHMENT FOR MURDER, SO AS TO ADD AS A STATUTORY AGGRAVATING CIRCUMSTANCE A MURDER IN WHICH 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; TO AMEND SECTION 20-7-7805, RELATING TO DISPOSITIONAL POWERS OF THE FAMILY COURT REGARDING CHILDREN ADJUDICATED DELINQUENT, SO AS TO AUTHORIZE THE COURT TO 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, AS A CONDITION OF PROBATION, COMMITMENT OR OTHERWISE, TO PARTICIPATE IN AN EDUCATIONAL PROGRAM REGARDING CULTURAL DIVERSITY; AND TO AMEND ARTICLE 1, CHAPTER 3, TITLE 23, RELATING TO THE STATE LAW ENFORCEMENT DIVISION, BY ADDING SECTION 23-3-125 SO AS TO ESTABLISH A HATE CRIME RECORDS REPOSITORY.

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

SECTION 1. This act shall be cited as the "Hate Crime Penalty Enhancement Act".

SECTION 2. 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 3. 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 4. 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 5. 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 6. 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 7. This act takes effect upon approval by the Governor.

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