South Carolina General Assembly
116th Session, 2005-2006

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Bill 1138

Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken

Indicates New Matter

INTRODUCED

February 9, 2006

S. 1138

Introduced by Judiciary Committee

S. Printed 2/9/06--S.    [SEC 2/10/06 12:56 PM]

Read the first time February 9, 2006.

            

A BILL

TO ENACT THE "SEX OFFENDER ACCOUNTABILITY AND PROTECTION OF MINORS ACT OF 2006" BY AMENDING SECTION 16-3-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PUNISHMENT FOR MURDER, SO AS TO ADD TO THE LIST OF AGGRAVATING CIRCUMSTANCES THAT THE MURDER WAS COMMITTED BY A PERSON DEEMED A SEXUALLY VIOLENT PREDATOR; TO AMEND SECTION 16-3-655, RELATING TO CRIMINAL SEXUAL CONDUCT WITH A MINOR, SO AS TO REVISE THE PENALTIES; TO AMEND SECTION 23-3-460, RELATING TO ANNUAL REGISTRATION FOR LIFE FOR PURPOSES OF THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE FOR REGISTRATION EVERY SIX MONTHS RATHER THAN ANNUALLY; TO AMEND SECTION 23-3-530, RELATING TO THE PROTOCOL MANUAL DEVELOPED BY THE STATE LAW ENFORCEMENT DIVISION FOR THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE CERTAIN NONEXCLUSIVE REQUIREMENTS THAT MUST BE INCLUDED IN THE PROTOCOL MANUAL; TO AMEND SECTION 23-3-540, RELATING TO THE ELECTRONIC MONITORING OF SEX OFFENDERS, SO AS TO ESTABLISH THE PERSONS WHO SHALL OR MAY BE ELECTRONICALLY MONITORED AND TO ESTABLISH THE PROCEDURES FOR MONITORING SUCH PERSONS; AND TO AMEND SECTION 23-3-550, RELATING TO HARBORING OR CONCEALING SEX OFFENDERS, SO AS TO REVISE THE OFFENSE OF ASSISTING OR HARBORING UNREGISTERED SEX OFFENDERS.

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

SECTION    1.    This act may be cited as the "Sex Offender Accountability and Protection of Minors Act of 2006".

SECTION    2.    Section 16-3-20(C)(a) of the 1976 Code is amended by adding an appropriately numbered item at the end to read:

"( )    The murder was committed by a person deemed a sexually violent predator pursuant to the provisions of Chapter 48, Title 44, or a person deemed a sexually violent predator who is released pursuant to Section 44-48-120."

SECTION    3.    Section 16-3-655 of the 1976 Code is amended to read:

"Section 16-3-655.    (A)    A person is guilty of criminal sexual conduct with a minor in the first degree if:

(1)    the actor engages in sexual battery with the a victim who is less than eleven years of age; or

(2)    the actor engages in sexual battery with a victim who is less than sixteen years of age and the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for an offense listed in Section 23-3-430(C) or has been ordered to be included in the sex offender registry pursuant to Section 23-3-430(D).

Upon conviction, the actor must be punished by imprisonment for not less than ten years nor more than thirty years, no part of which may be suspended or probation granted.

(B)    A person is guilty of criminal sexual conduct with a minor in the second degree if:

(1)    the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age.; or

(C)    A person is guilty of criminal sexual conduct in the second degree if

(2)    the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.

(C)    A person convicted of a violation of subsection (A)(1) is guilty of a felony and, upon conviction, must be imprisoned for a mandatory minimum of twenty-five years, no part of which may be suspended or probation granted, or must be imprisoned for life. For purposes of this subsection, life means until death. A person convicted of a violation of subsection (A)(2) is guilty of a felony and, upon conviction, must be imprisoned for not less than ten years nor more than thirty years, no part of which may be suspended or probation granted. A person convicted of a violation of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned for not more than twenty years according to the discretion of the court."

SECTION    4.    Section 23-3-460 of the 1976 Code is amended to read:

"Section 23-3-460.    (A)    A person required to register under pursuant to this article is required to register bi-annually for life. For purposes of this article, 'bi-annually' means each year within thirty days after the anniversary date of the offender's last registration during the month of his birthday and again during the sixth month following his birth month. The offender person required to register shall register and must re-register at the sheriff's department in each county where he resides, owns real property, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school. A person determined by a court to be a sexually violent predator pursuant to state law is required to verify registration and be photographed every ninety days by the sheriff's department in the county in which he resides unless the person is committed to the custody of the State, whereby and verification shall will be held in abeyance until his release.

(B)    If a person required to register under pursuant to this article changes his address within the same county, that person must send written notice of the change of address to the sheriff within ten days of establishing the new residence. If a person required to register under this article owns or acquires real property within a county in this State, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school, he must register with the sheriff in each county where the real property or the public or private school is located within ten days of acquiring the real property or attending the public or private school.

(C)    If a person required to register under pursuant to this article changes his address into another county in South Carolina, the person must register with the county sheriff in the new county within ten days of establishing the new residence. The person must also provide written notice within ten days of the change of address in the previous county to the sheriff with whom the person last registered.

(D)    A person required to register under pursuant to this article and who is employed by, attends, is enrolled at, or carries on a vocation at any public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any vocational, technical, or occupational school, must provide written notice within ten days of each change in attendance, enrollment, employment, or vocation status at any public or private school in this State. For purposes of this section: subsection, 'employed and carries on a vocation' means employment that is full-time or part-time for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any a calendar year, whether financially compensated, volunteered, or for the purpose of government or educational benefit; and 'student' means a person who is enrolled on a full-time or part-time basis, in any a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any a vocational, technical, or occupational school.

(E)    If a person required to register under pursuant to this article moves outside of South Carolina, the person must provide written notice within ten days of the change of address to a new state to the county sheriff with whom the person last registered.

(F)    A person required to register under pursuant to this article who moves to South Carolina from another state, establishes residence, acquires real property, attends or is enrolled at, or is employed by or carries on a vocation at any a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any a vocational, technical, or occupational school in South Carolina, and is not under the jurisdiction of the Department of Corrections, the Department of Probation, Parole and Pardon Services, the Department of Juvenile Justice, or the Juvenile Parole Board at the time of moving to South Carolina must register within ten days of establishing residence, acquiring real property, attending or enrolling at, or being employed by or carrying on a vocation at any a public or private school in this State.

(G)    The sheriff of the county in which the person resides must forward all changes to any information provided by a person required to register under pursuant to this article to SLED within five business days.

(H)    A sheriff who receives registration information, notification of change of address, or notification of change in attendance, enrollment, employment, or vocation status at any a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any a vocational, technical, or occupational school, must notify all local law enforcement agencies, including college or university law enforcement agencies, within five business days of an offender whose address, real property, or public or private school is within the local law enforcement agency's jurisdiction.

(I)    The South Carolina Department of Motor Vehicles, shall inform, in writing, any new resident who applies for a driver's license, chauffeur's license, vehicle tag, or state identification card of the obligation of sex offenders to register. The department also shall inform, in writing, a person renewing a driver's license, chauffeur's license, vehicle tag, or state identification card of the requirement for sex offenders to register."

SECTION    5.    Section 23-3-530 of the 1976 Code is amended to read:

"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. The protocol manual must include, but is not limited to, the following:

(1)    procedures for the verification of addresses by the sheriff's department in the county where the person resides; and

(2)    specific requirements for registration and re-registration including, but not limited to, the following:

(a)    the name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of permanent residence, address of current temporary residence, within the State or out of state, including rural route address and post office box, which may not be provided instead of a physical residential address, date and place of employment, vehicle make, model, color, and license tag number, fingerprints, and photograph;

(b)    the name, address, and county of each institution of higher learning, including the specific campus location, if the person is enrolled, employed, or carries on a vocation there;

(c)    the vehicle identification number, license tag number, registration number, and a description, including the color scheme, if the person lives in a motor vehicle, trailer, mobile home, or manufactured home; and

(d)    the hull identification number, the manufacturer's serial number, the name of the vessel, live-aboard vessel, or houseboat, the registration number, and a description of the color scheme, if the person lives in a vessel, live-aboard vessel, or houseboat."

SECTION    6.    Section 23-3-540 of the 1976 Code is amended to read:

"Section 23-3-540.    (A)    Prior to an offender's release after completion of a term of imprisonment, being placed on parole, being placed under community supervision, being placed under a community supervision program, or when an offender is sentenced to probation, the Department of Probation, Parole and Pardon Services shall place the offender under a system of active electronic monitoring that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, the court must order that the person, upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(B)    Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for any other offense listed in subsection (G), the court may order that the person upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(B)(C)    An offender A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be placed monitored by the Department of Probation, Parole and Pardon Services under a system of with an active electronic monitoring device that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location.

(D)    A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a term of probation, parole, community supervision, or a community supervision program, may be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(E)    A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(F)    A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a provision of this article, may be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(C)(G)    This section applies to an offender a person who has been:

(1)    convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses:

(a)    criminal sexual conduct with minors, a minor in the first degree (Section 16-3-655(1)(A));

(b)    criminal sexual conduct with minors, a minor in the second degree (Section 16-3-655(B)). 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), provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, then the convicted person is not an offender and is not required to register be electronically monitored pursuant to the provisions of this article section;

(c)    engaging a child for sexual performance (Section 16-3-810);

(d)    producing, directing, or promoting sexual performance by a child (Section 16-3-820);

(e)    criminal sexual conduct: assaults with intent to commit (Section 16-3-656) involving a minor;

(f)    committing or attempting lewd act upon child under sixteen (Section 16-15-140);

(g)    violations of Article 3, Chapter 15 of Title 16 involving a minor;

(h)    kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;

(i)        criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:

(i)        persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);

(ii)    perform a sexual activity in the presence of the person solicited (Section 16-15-342); or

(2)    ordered as a condition of sentencing to be included in the sex offender registry pursuant to Section 23-3-430(D) for an offense involving a minor.

(D)(H)    The offender person shall remain under the system of be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the offender person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the offender person is committed to the custody of the State. Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. The person shall serve a copy of the petition upon the solicitor of the circuit and the Department of Probation, Parole and Pardon Services. The court must hold a hearing before ordering the person to be released from the electronic monitoring requirements of this section, unless the court denies the petition because the person is not eligible for release or based on other procedural grounds. The solicitor of the circuit, the Department of Probation, Parole and Pardon Services, and any victims, as defined in Article 15, Chapter 3, Title 16, must be notified of any hearing pursuant to this subsection and must be given an opportunity to testify or submit affidavits in response to the petition. If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section. If the court denies the petition or refuses to grant the order, then the person may re-file a new petition every five years from the date the court denies the petition or refuses to grant the order. A person may not petition the court if the person is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140.

(E)(I)    The offender person shall follow instructions provided by the Department of Probation, Parole and Pardon Services to maintain the active electronic monitoring device in working order. Incidental damage or defacement of the active electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. An offender A person who fails to comply with the reporting requirement of this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.

(F)(J)    The offender person shall abide by any other terms and conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the active electronic monitoring device and electronic monitoring program.

(G)(K)    The offender person must be charged a fee in accordance with Section 24-21-85 for the cost of the active electronic monitoring device and the operation of the active electronic monitoring device for the duration of the time the person is required to be electronically monitored. The Department of Probation, Parole and Pardon Services may exempt a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if the Department of Probation, Parole and Pardon Services determines that exceptional circumstances exist such that these payments cause a severe hardship to the person. The payment of the cost must be a condition of supervision of the person and a delinquency of two months or more in making payments may operate as a violation of a term or condition of the electronic monitoring. All fees generated by this subsection must be retained by the Department of Probation, Parole and Pardon Services, carried forward, and applied to support the active electronic monitoring of sex offenders.

(H)(L)    A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an active electronic monitoring device is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. This subsection does not apply to a person or agent authorized by the Department of Probation, Parole and Pardon Services to perform maintenance and repairs to the active electronic monitoring devices.

(M)(1)    In addition to other penalties provided in this section, if the Department of Probation, Parole and Pardon Services determines that a person has violated a term or condition of electronic monitoring, a probation agent must initiate a proceeding in circuit court. The proceeding must be initiated pursuant to a warrant or a citation issued by a probation agent setting forth the person's violations. The court shall determine if the:

(a)    the terms and conditions of the electronic monitoring set forth by the Department of Probation, Parole and Pardon Services are fair and reasonable;

(b)    the person has complied with the terms and conditions of electronic monitoring;

(c)    the person should continue under electronic monitoring under the current terms and conditions;

(d)    the person should continue under electronic monitoring under other terms and conditions as the court considers appropriate; and

(e)    person has wilfully violated a term or condition of electronic monitoring.

(2)    If the court determines that a person has wilfully violated a term or condition of electronic monitoring, then the court may impose other terms and conditions considered appropriate and may continue the person on electronic monitoring, or the court may revoke the electronic monitoring and impose a sentence of up to ten years for the violation. A person who is incarcerated for a revocation is eligible to earn work credits, education credits, good conduct credits, and other credits which would reduce the sentence for the violation to the same extent he would have been eligible to earn credits on a sentence of incarceration for the underlying conviction. A person who is incarcerated for a revocation pursuant to the provisions of this subsection is not eligible for parole.

(3)    If a person's electronic monitoring is revoked by the court and the court imposes a period of incarceration for the revocation, then the person must be placed back on electronic monitoring when the person is released from incarceration.

(4)    A person may be sentenced for successive revocations, with each revocation subject to a ten-year sentence. The maximum aggregate amount of time the person may be required to serve when sentenced for successive revocations may not exceed the period of time the person is required to remain on the sex offender registry.

(N)    The Department of Corrections shall notify the Department of Probation, Parole and Pardon Services of the projected release date of an inmate serving a sentence, as described in this section, at least one hundred eighty days in advance of the person's release from incarceration. For a person sentenced to one hundred eighty days or less, the Department of Corrections shall immediately notify the Department of Probation, Parole and Pardon Services.

(O)    Victims, as defined in Article 15, Chapter 3, Title 16, and the sheriff's office in the county where the person is to be released must be notified by the Department of Probation, Parole and Pardon Services when an inmate serving a sentence as described in this section is released on electronic monitoring.

(P)    As used in this section, 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies a person's location and that timely reports or records the person's presence near or within a crime scene or prohibited area or the person's departure from a specified geographic location."

SECTION    7.    Section 23-3-550 of the 1976 Code is amended to read:

"Section 23-3-550.    (A)    A person who has reason to believe that a person required to register pursuant to the provisions of this article is not complying or has not complied with the requirements of this article, with the intent to assist or harbor the person required to register in eluding a law enforcement agency, is guilty of the offense of assisting or harboring an unregistered sex offender, if the person:

(1)    withholds information from or does not notify the law enforcement agency of the noncompliance of the provisions of this article by the person required to register, and, if known, the location of this person;

(2)    harbors, attempts to harbor, or assists another person in harboring or attempting to harbor the person required to register;

(3)    conceals, attempts to conceal, or assists another in concealing or attempting to conceal the person required to register; or

(4)    provides information known to be false to a law enforcement agency regarding the person required to register.

(B)    A person who knowingly and wilfully protects, harbors, or conceals an offender who the person knows is not in compliance with the requirements of this article, violates the provisions of subsection (A) is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years."

SECTION    8.    The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    9.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    10.    This act takes effect upon approval by the Governor.

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