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COMMITTEE REPORT
May 27, 1999
S. 708
S. Printed 5/27/99--H.
Read the first time April 20, 1999.
To whom was referred a Bill (S. 708), to amend Chapter 3, Title 16 of the Code of Laws of South Carolina, 1976, relating to offenses against the person etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Section 23-3-430(C) of the 1976 Code, as last amended by Act 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 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)."
SECTION 2. 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 3. This act takes effect upon approval by the Governor. /
Amend title to conform.
JAMES H. HARRISON, for Committee.
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.
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 6. 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 7. Section 23-3-430(C) of the 1976 Code, as last amended by Act 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 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;
(16) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(17) unlawful transporting of a person under sixteen years of age outside the State with the intent of violating a custody order (Section 16-17-495) except when the offense is committed by a parent;
(18) criminal sexual conduct when the victim is a spouse (Section 16-3-658);
(19) sexual battery of a spouse (Section 16-3-615);
(20) aggravated stalking within seven years of a conviction of harassment or stalking (Section 16-3-1730);
(21) sexual intercourse with a patient or trainee of a state mental health facility (Section 44-23-1150);
(22) sexual enticement of a person under sixteen years of age (Section 16-3-1610)."
SECTION 8. This act takes effect upon approval by the Governor.
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