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S. 190
STATUS INFORMATION
General Bill
Sponsors: Senators Ritchie, Campsen, Richardson, Mescher, Knotts and Fair
Document Path: l:\s-res\jhr\014sexo.dag.doc
Introduced in the Senate on January 9, 2007
Currently residing in the Senate Committee on Judiciary
Summary: Sex offender treatment
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/13/2006 Senate Prefiled
12/13/2006 Senate Referred to Committee on Judiciary
1/9/2007 Senate Introduced and read first time SJ-111
1/9/2007 Senate Referred to Committee on Judiciary SJ-111
1/17/2007 Senate Referred to Subcommittee: Hawkins (ch), Sheheen, Lourie,
Vaughn
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 16-3-655, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL SEXUAL CONDUCT WITH MINORS, TO PROVIDE THAT CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE OCCURS WHEN COMMITTED AGAINST A CHILD LESS THAN TWELVE, RATHER THAN ELEVEN, YEARS OF AGE, TO ADJUST THE AGE RELATED TO CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE ACCORDINGLY, TO PROVIDE THAT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE WITH A MINOR PERPETRATED BY A PERSON IN A FAMILIAL POSITION OR POSITION OF AUTHORITY OCCURS WHEN THE VICTIM IS EIGHTEEN, RATHER THAN SIXTEEN YEARS OF AGE, TO REQUIRE WHEN IMPOSING THESE SENTENCES, THE COURT ALSO SHALL REQUIRE THE DEFENDANT, WHEN RELEASED FROM PRISON FOR CONVICTION OF FIRST OR SECOND DEGREE CRIMINAL SEXUAL CONDUCT WITH A MINOR, TO BE PLACED ON PROBATION AND ON AN ACTIVE ELECTRONIC MONITORING DEVICE FOR THE DURATION OF TIME HE IS REQUIRED TO BE ON THE SEXUAL ABUSE REGISTRY, AND TO PROVIDE THAT A PERSON WHO VIOLATES THIS PROBATION MUST BE IMPRISONED FOR UP TO TWENTY-FIVE PERCENT OF HIS ORIGINAL SENTENCE; TO AMEND SECTIONS 16-15-395, 16-15-405, AND 16-15-410, ALL AS AMENDED, ALL RELATING TO SEXUAL EXPLOITATION OF A MINOR, TO INCLUDE SEXUALLY EXPLICIT NUDITY AS A PROHIBITED ACT, TO PROVIDE THAT MISREPRESENTATION OF AGE IS NOT A DEFENSE TO SEXUAL EXPLOITATION OF A MINOR, TO CLARIFY THAT THE MINIMUM SENTENCE FOR FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR IS MANDATORY AND MAY NOT BE SUSPENDED OR PROBATION GRANTED, TO ESTABLISH A FELONY FOR COMMITTING SEXUAL EXPLOITATION OF A CHILD UNDER TWELVE YEARS OF AGE AND TO PROVIDE A MANDATORY MINIMUM SENTENCE OF TEN YEARS, AND TO REQUIRE WHEN IMPOSING THESE SENTENCES, THE COURT ALSO SHALL REQUIRE THE DEFENDANT, WHEN RELEASED FROM PRISON FOR CONVICTION OF FIRST OR SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, TO BE PLACED ON PROBATION AND ON AN ACTIVE ELECTRONIC MONITORING DEVICE FOR THE DURATION OF TIME HE IS REQUIRED TO BE ON THE SEXUAL ABUSE REGISTRY, AND TO PROVIDE THAT A PERSON WHO VIOLATES THIS PROBATION MUST BE IMPRISONED FOR UP TO TWENTY-FIVE PERCENT OF HIS ORIGINAL SENTENCE; TO ADD SECTION 24-13-180, TO REQUIRE THAT SEX OFFENDER TREATMENT PROVIDED TO A PRISONER INCARCERATED AT THE DEPARTMENT OF CORRECTIONS MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 24-21-445, TO REQUIRE THE COURT TO ORDER THE MAXIMUM PERIOD OF PROBATION IF A SEX OFFENDER IS PLACED ON PROBATION AND TO PROVIDE THAT ANY SEX OFFENDER TREATMENT ORDERED FOR SUCH AN OFFENDER MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 24-21-655, TO REQUIRE THAT IF, AS A CONDITION OF PAROLE, A PRISONER MUST RECEIVE SEX OFFENDER TREATMENT, THE TREATMENT MUST BE PROVIDED BY A CERTIFIED SEX OFFENDER TREATMENT PROVIDER; TO ADD SECTION 44-9-170, TO REQUIRE THE DEPARTMENT OF MENTAL HEALTH TO ESTABLISH A CERTIFICATION PROCESS FOR SEX OFFENDER TREATMENT PROVIDERS AND TO PROVIDE THAT SEX OFFENDER TREATMENT ORDERED BY THE COURT OR PROVIDED BY THE STATE MUST BE PROVIDED BY A CERTIFIED TREATMENT PROVIDER; TO AMEND SECTION 44-48-30, AS AMENDED, RELATING TO DEFINITIONS IN THE SEXUALLY VIOLENT PREDATOR ACT, TO ADD ASSAULT AND BATTERY OF A HIGH AND AGGRAVATED NATURE TO THE DEFINITION OF A SEXUALLY VIOLENT PREDATOR IF THE ASSAULT WAS A SEXUAL OFFENCE AND TO DEFINE "PROBABLE CAUSE"; TO AMEND SECTION 44-48-80, AS AMENDED, RELATING TO HEARINGS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE THAT THE NAMED PERSON IS A SEXUALLY VIOLENT PREDATOR, TO PROVIDE THAT IN MAKING THIS DETERMINATION, THE COURT MAY NOT CONSIDER THE FACT THAT A MENTAL HEALTH EVALUATION HAS NOT BEEN CONDUCTED, TO PROVIDE THAT THE NAMED PERSON MAY NOT CHALLENGE THE VALIDITY OF HIS PRIOR CRIMINAL OR INSTITUTIONAL CONVICTIONS, TO PROVIDE THAT IF THE NAMED PERSON REFUSES TO COOPERATE WITH EVALUATION AND TREATMENT, EVIDENCE OF THIS REFUSAL IS ADMISSIBLE, AND TO PROVIDE THAT THE COURT MAY BAR THE NAMED PERSON FROM INTRODUCING EXPERT PSYCHIATRIC EVIDENCE, AND TO PROVIDE THAT THE DEPARTMENT OF MENTAL HEALTH SHALL CONVENE A COMMITTEE TO STUDY THE SEXUALLY VIOLENT PREDATOR ACT, TO REVIEW AND EVALUATE THE OPERATION AND EFFECTIVENESS OF THE ACT, TO PROVIDE FOR ITS MEMBERS, AND TO PROVIDE THAT THE COMMITTEE SHALL SUBMIT A REPORT AND RECOMMENDATIONS TO THE GENERAL ASSEMBLY BEFORE JANUARY 1, 2009.
Whereas, the South Carolina General Assembly finds that sex offenders whose victims are minors have an extremely high rate of recidivism; and
Whereas, the General Assembly further finds that such offenders do not respond well to treatment or rehabilitation; and
Whereas, such offenders pose a substantial threat to society, and to children in particular; and
Whereas, such offenses are heinous crimes and devastating to victims, resulting in long term, and often lifetime, problems for these victims; and
Whereas, providing significant periods of incarceration and ongoing electronic monitoring upon release from incarceration would ensure the greatest protection for society and would help to prevent the incalculable toll that such crimes take on their victims. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-3-655 of the 1976 Code, as last amended by Act 346 of 2006, is further 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 person engages in sexual battery with a victim who is less than eleven twelve years of age; or
(2) the actor person engages in sexual battery with a victim who is less than sixteen years of age and the actor person 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).
(B) A person is guilty of criminal sexual conduct with a minor in the second degree if:
(1) the actor person engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven twelve years of age; or
(2) the actor person engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen eighteen years of age and the actor person is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age. In addition, mistake of age may be used as a defense.
(C)(1) 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. In the case of a person pleading guilty or nolo contendere to a violation of subsection (A)(1), the judge must make a specific finding on the record regarding whether the type of conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. In the case of a person convicted at trial for a violation of subsection (A)(1), the judge or jury, whichever is applicable, must designate as part of the verdict whether the conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. If the person has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for first degree criminal sexual conduct with a minor who is less than eleven twelve years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven twelve years of age, he must be punished by death or by imprisonment for life, as provided by this section. For the purpose of determining a prior conviction under this subsection, the person must have been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent on a separate occasion, prior to the instant adjudication, for first degree criminal sexual conduct with a minor who is less than eleven twelve years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven twelve years of age. In order to be eligible for the death penalty pursuant to this section, the sexual battery constituting the current offense and any prior offense must have involved sexual or anal intercourse by a person or intrusion by an object. If any prior offense that would make a person eligible for the death penalty pursuant to this section occurred prior to the effective date of this act and no specific finding was made regarding the nature of the conduct or is an out-of-state or federal conviction, the determination of whether the sexual battery constituting the prior offense involved sexual or anal intercourse by a person or intrusion by an object must be made in the separate sentencing proceeding provided by this section and proven beyond a reasonable doubt and designated in writing by the judge or jury, whichever is applicable. If the judge or jury, whichever is applicable, does not find that the prior offense involved sexual or anal intercourse by a person or intrusion by an object, then the person must be sentenced to imprisonment for life. For purposes of this subsection, imprisonment for life means imprisonment until death.
(2) 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.
(3) 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.
(D) If the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (D)(1) and (D)(2), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender without the possibility of parole, and when requested by the State or the defendant, the judge must charge the jury in his instructions that life imprisonment means until the death of the defendant without the possibility of parole. No person sentenced to life imprisonment, pursuant to this subsection, is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section. Under no circumstances may a female who is pregnant be executed, so long as she is pregnant or for a period of at least nine months after she is no longer pregnant. When the Governor commutes a sentence of death imposed pursuant to this section to life imprisonment under the provisions of Section 14 of Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the mandatory imprisonment required by this subsection.
(1) When the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, the court shall conduct a separate sentencing proceeding. In the proceeding, if a statutory aggravating circumstance is found, the defendant must be sentenced to either death or life imprisonment. The proceeding must be conducted by the trial judge before the trial jury as soon as practicable after the lapse of twenty-four hours unless waived by the defendant. If trial by jury has been waived by the defendant and the State, or if the defendant pled guilty, the sentencing proceeding must be conducted before the judge. In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment. Only such evidence in aggravation as the State has informed the defendant in writing before the trial is admissible. This section must not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States, or the State of South Carolina, or the applicable laws of either. The State, the defendant, and his counsel are permitted to present arguments for or against the sentence to be imposed. The defendant and his counsel shall have the closing argument regarding the sentence to be imposed.
(2) In sentencing a person, upon conviction or adjudication of guilt of a defendant pursuant to this section, 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:
(i) The victim's resistance was overcome by force.
(ii) The victim was prevented from resisting the act because the actor person was armed with a dangerous weapon.
(iii) The victim was prevented from resisting the act by threats of great and immediate bodily harm, accompanied by an apparent power to inflict bodily harm.
(iv) The victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing his resistance.
(v) The crime was committed by a person with a prior conviction for murder.
(vi) The offender committed the crime for himself or another for the purpose of receiving money or a thing of monetary value.
(vii) The offender caused or directed another to commit the crime or committed the crime as an agent or employee of another person.
(viii)The crime was committed against two or more persons by the defendant by one act, or pursuant to one scheme, or course of conduct.
(ix) The crime was committed during the commission of burglary in any degree or kidnapping.
(b) Mitigating circumstances:
(i) The defendant has no significant history of prior criminal convictions involving the use of violence against another person.
(ii) The crime was committed while the defendant was under the influence of mental or emotional disturbance.
(iii) The defendant was an accomplice in the crime committed by another person and his participation was relatively minor.
(iv) The defendant acted under duress or under the domination of another person.
(v) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(vi) The age or mentality of the defendant at the time of the crime.
(vii) The defendant was below the age of eighteen at the time of the crime.
The statutory instructions as to statutory aggravating and mitigating circumstances must be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances, which it found beyond a reasonable doubt. The jury, if it does not recommend death, after finding a statutory aggravating circumstance or circumstances beyond a reasonable doubt, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances it found beyond a reasonable doubt. In nonjury cases, the judge shall make the designation of the statutory aggravating circumstance or circumstances. Unless at least one of the statutory aggravating circumstances enumerated in this section is found, the death penalty must not be imposed.
Where a statutory aggravating circumstance is found and a recommendation of death is made, the trial judge shall sentence the defendant to death. The trial judge, before imposing the death penalty, shall find as an affirmative fact that the death penalty was warranted under the evidence of the case and was not a result of prejudice, passion, or any other arbitrary factor. Where a statutory aggravating circumstance is found and a sentence of death is not recommended by the jury, the trial judge shall sentence the defendant to life imprisonment as provided in subsection (D)(4). Before dismissing the jury, the trial judge shall question the jury as to whether or not it found a statutory aggravating circumstance or circumstances beyond a reasonable doubt. If the jury does not unanimously find any statutory aggravating circumstances or circumstances beyond a reasonable doubt, it shall not make a sentencing recommendation. Where a statutory aggravating circumstance is not found, the trial judge shall sentence the defendant to life imprisonment. No person sentenced to life imprisonment under this section is eligible for parole or to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the sentence required by this section. If the jury has found a statutory aggravating circumstance or circumstances beyond a reasonable doubt, the jury shall designate this finding, in writing, signed by all the members of the jury. The jury shall not recommend the death penalty if the vote for such penalty is not unanimous as provided. If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant upon conviction or adjudication of guilt of a defendant pursuant to this section, the trial judge shall dismiss such jury and shall sentence the defendant to life imprisonment, as provided in subsection (D)(4).
(3) Notwithstanding the provisions of Section 14-7-1020, in cases involving capital punishment a person called as a juror must be examined by the attorney for the defense.
(4) In a criminal action pursuant to this section, which may be punishable by death, a person may not be disqualified, excused, or excluded from service as a juror by reason of his beliefs or attitudes against capital punishment unless such beliefs or attitudes would render him unable to return a verdict according to law.
(E)(1) In all cases in which an individual is sentenced to death pursuant to this section, the trial judge shall, before the dismissal of the jury, verbally instruct the jury concerning the discussion of its verdict. A standard written instruction shall be promulgated by the Supreme Court for use in capital cases brought pursuant to this section.
(2) The verbal instruction shall include:
(a) the right of the juror to refuse to discuss the verdict;
(b) the right of the juror to discuss the verdict to the extent that the juror so chooses;
(c) the right of the juror to terminate any discussion pertaining to the verdict at any time the juror so chooses;
(d) the right of the juror to report any person who continues to pursue a discussion of the verdict or who continues to harass the juror after the juror has refused to discuss the verdict or communicated a desire to terminate discussion of the verdict; and
(e) the name, address, and phone number of the person or persons to whom the juror should report any harassment concerning the refusal to discuss the verdict or the juror's decision to terminate discussion of the verdict.
(3) In addition to the verbal instruction of the trial judge, each juror, upon dismissal from jury service, shall receive a copy of the written jury instruction set forth in subsection (1).
(F)(1) Whenever the death penalty is imposed pursuant to this section, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of South Carolina. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of South Carolina together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of South Carolina.
(2) The Supreme Court of South Carolina shall consider the punishment as well as any errors by way of appeal.
(3) With regard to the sentence, the court shall determine:
(a) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(b) whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (D)(2)(a); and
(c) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(4) Both the defendant and the State shall have the right to submit briefs within the time provided by the court and to present oral arguments to the court.
(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(a) affirm the sentence of death; or
(b) set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of South Carolina in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration. If the court finds error prejudicial to the defendant in the sentencing proceeding conducted by the trial judge before the trial jury as outlined under subsection (D)(1), the court may set the sentence aside and remand the case for a resentencing proceeding to be conducted by the same or a different trial judge and by a new jury impaneled for such purpose. In the resentencing proceeding, the new jury, if the defendant does not waive the right of a trial jury for the resentencing proceeding, shall hear evidence in extenuation, mitigation, or aggravation of the punishment in addition to any evidence admitted in the defendant's first trial relating to guilt for the particular crime for which the defendant has been found guilty.
(6) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on all legal errors, the factual substantiation of the verdict, and the validity of the sentence.
(G)(1) Whenever the solicitor seeks the death penalty pursuant to this section, he shall notify the defense attorney of his intention to seek such penalty at least thirty days prior to the trial of the case. At the request of the defense attorney, the defense attorney shall be excused from all other trial duties ten days prior to the term of court in which the trial is to be held.
(2)(a) Whenever any person is charged with first degree criminal sexual conduct with a minor who is less than eleven twelve years and the death penalty is sought, the court, upon determining that such person is unable financially to retain adequate legal counsel, shall appoint two attorneys to defend such person in the trial of the action. One of the attorneys so appointed shall have at least five years' experience as a licensed attorney and at least three years' experience in the actual trial of felony cases, and only one of the attorneys so appointed shall be the public defender or a member of his staff. In all cases where no conflict exists, the public defender or member of his staff shall be appointed if qualified. If a conflict exists, the court shall then turn first to the contract public defender attorneys, if qualified, before turning to the Office of Indigent Defense.
(b) Notwithstanding any other provision of law, the court shall order payment of all fees and costs from funds available to the Office of Indigent Defense for the defense of the indigent. Any attorney appointed shall be compensated at a rate not to exceed fifty dollars per hour for time expended out of court and seventy-five dollars per hour for time expended in court. Compensation shall not exceed twenty-five thousand dollars and shall be paid from funds available to the Office of Indigent Defense for the defense of indigent represented by court-appointed, private counsel.
(3)(a) Upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment, from funds available to the Office of Indigent Defense, of fees and expenses not to exceed twenty thousand dollars as the court shall deem appropriate. Payment of such fees and expenses may be ordered in cases where the defendant is an indigent represented by either court-appointed, private counsel or the public defender.
(b) Court-appointed counsel seeking payment for fees and expenses shall request these payments from the Office of Indigent Defense within thirty days after the completion of the case. For the purposes of this statute, exhaustion of the funds shall occur if the funds administered by the Office of Indigent Defense and reserved for death penalty fees and expenses have been reduced to zero. If either the Death Penalty Trial Fund or the Conflict Fund has been exhausted in a month and the other fund contains money not scheduled to be disbursed in that month, then the Indigent Defense Commission must transfer a sufficient amount from the fund with the positive fund balance to the fund with no balance and pay the obligation to the extent possible.
(4) Payment in excess of the hourly rates and limit in subsection (2) or (3) is authorized only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred. Upon a finding that timely procurement of such services cannot await prior authorization, the court may authorize the provision of and payment for such services nunc pro tunc.
(5) After completion of the trial, the court shall conduct a hearing to review and validate the fees, costs, and other expenditures on behalf of the defendant.
(6) The Supreme Court shall promulgate guidelines on the expertise and qualifications necessary for attorneys to be certified as competent to handle death penalty cases brought pursuant to this section.
(7) The Office of Indigent Defense shall maintain a list of death penalty qualified attorneys who have applied for and received certification by the Supreme Court as provided for herein. In the event the court-appointed counsel notifies the chief administrative judge in writing that he or she does not wish to provide representation in a death penalty case, the chief administrative judge shall advise the Office of Indigent Defense which shall forward a name or names to the chief administrative judge for consideration. The appointment power is vested in the chief administrative judge. The Office of Indigent Defense shall establish guidelines as are necessary to ensure that attorneys' names are presented to the judges on a fair and equitable basis, taking into account geography and previous assignments from the list. Efforts shall be made to present an attorney from the area or region where the action is initiated.
(8) The payment schedule set forth herein, as amended by Act 164 of 1993, shall apply to any case for which trial occurs on or after July 1, 1993.
(9) Notwithstanding another provision of law, only attorneys who are licensed to practice in this State and residents of this State may be appointed by the court and compensated with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense. This proviso shall not pertain to any case in which counsel has been appointed on the effective date of this act.
(10) The judicial department biennially shall develop and make available to the public a list of standard fees and expenses associated with the defense of an indigent person in a death penalty case.
(H) Notwithstanding any other provision of law, in any trial pursuant to this section where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument.
(I)(1) The court, in sentencing a person convicted of a violation of subsection (A) or (B) who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry, the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services.
(2) Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A) or (B).
(3) For purposes of subsection (D)(1), '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 the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."
SECTION 2. Section 16-15-395 of the 1976 Code, as last amended by Act 208 of 2004, is further amended to read:
"Section 16-15-395. (A) An individual commits the offense of first degree sexual exploitation of a minor if, knowing the character or content of the material or performance, he:
(1) uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity;
(2) permits a minor under his custody or control to engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity;
(3) transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity or sexually explicit nudity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
(4) records, photographs, films, develops, duplicates, produces, or creates a digital electronic file for sale or pecuniary gain material that contains a visual representation depicting a minor engaged in sexual activity or sexually explicit nudity.
(B) In a prosecution under this section, the trier of fact may infer that a participant in a sexual activity or sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.
(C) Mistake of age or misrepresentation of age is not a defense to a prosecution under this section.
(D) Except as provided in subsection (E), a person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than a mandatory minimum of three years nor more and not more than twenty years. No part of the minimum sentence of imprisonment may be suspended nor is and the individual convicted is not eligible for parole until he has served the minimum term of imprisonment sentence. Sentences A sentence imposed pursuant to this section subsection must run consecutively with and commence at the expiration of another any other sentence being served by the person sentenced.
(E) A person who violates a provision of subsection (A) with a victim who is less than twelve years of age is guilty of a felony and, upon conviction, must be imprisoned for a mandatory minimum of ten years and not more than thirty years. No part of the minimum sentence may be suspended and the individual convicted is not eligible for parole until he has served the minimum sentence. A sentence imposed pursuant to this subsection must run consecutively with and commence at the expiration of any other sentence being served.
(F)(1) The court, in sentencing a person convicted of a violation of subsection (A) or (E), who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry, the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services.
(2) Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A) or (E).
(3) For purposes of subsection (F)(1), '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 the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."
SECTION 3. Section 16-15-405 of the 1976 Code, as amended by Act 208 of 2004, is further amended to read:
"Section 16-15-405. (A) An individual commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he:
(1) records, photographs, films, develops, duplicates, produces, or creates digital electronic file material that contains a visual representation of a minor engaged in sexual activity or sexually explicit nudity; or
(2) distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity or sexually explicit nudity.
(B) In a prosecution under this section, the trier of fact may infer that a participant in sexual activity or sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.
(C) Mistake of age or misrepresentation of age is not a defense to a prosecution under this section.
(D) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not less than for a mandatory minimum of two years nor and not more than ten years. No part of the minimum sentence may be suspended nor is and the individual convicted is not eligible for parole until he has served the minimum sentence.
(E)(1) The court, in sentencing a person convicted of a violation of subsection (A) who is required to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23, must order that upon release from incarceration and for the duration of time the person is required to remain on the sex offender registry the person be placed on probation and monitored with an active electronic monitoring device and under such other conditions as may be imposed by the Department of Probation, Parole, and Pardon Services .
(2) Upon a finding by the court that a person has violated a condition of probation imposed by this section or by the Department of Probation, Parole, and Pardon Services pursuant to this section or pursuant to any other provision of law, the person must be imprisoned for up to twenty-five percent of the time the person was originally sentenced to serve for a conviction under subsection (A).
(3) For purposes of subsection (F)(1), '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 the offender's location and timely reports or records the offender's presence near or within a crime scene or in a prohibited area or the offender's departure from specified geographic limitations and may include, but is not limited to, a global positioning system satellite surveillance method."
SECTION 4. Section 16-15-410 of the 1976 Code, as amended by Act 208 of 2004, is further amended to read:
"Section 16-15-410. (A) An individual commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity or sexually explicit nudity.
(B) In a prosecution under this section, the trier of fact may infer that a participant in sexual activity or sexually explicit nudity depicted as a minor through its title, text, visual representation, or otherwise is a minor.
(C) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not more than ten years."
SECTION 5. Article 1, Chapter 13, Title 24 of the 1976 Code is amended by adding:
"Section 24-13-180. Sex offender treatment provided to a sex offender, as defined in Section 23-3-340, incarcerated in the Department of Corrections must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."
SECTION 6. Article 5, Chapter 24, Title 21 of the 1976 Code is amended by adding:
"Section 24-21-445. (A) If the court sentences a sex offender to probation, the court shall, taking the nature and circumstances of the offense into consideration, order the maximum period of probation pursuant to Section 24-21-440 and may order, as a condition of probation, sex offender treatment.
(B) Sex offender treatment ordered pursuant to subsection (A) must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."
SECTION 7. Article 7, Chapter 21, Title 24 of the 1976 Code is amended by adding:
"Section 24-21-655. If, as a condition of parole, a prisoner is ordered to undergo sex offender treatment, the treatment must be provided by a sex offender treatment provider certified pursuant to Section 44-9-170."
SECTION 8. Chapter 9, Title 44 is amended by adding:
"Section 44-9-170. (A) The Department of Mental Health shall promulgate regulations establishing a certification process for sex offender treatment providers. These regulations must include, but are not limited to:
(1) educational qualifications, professional qualifications, and clinical experience and may include prerequisite professional licensure;
(2) sex offender treatment specific training requirements;
(3) standards of treatment;
(4) continuing education requirements;
(5) certification application and renewal procedures and fees.
(B) If treatment is ordered by the court as a condition of sentencing or probation for a sex offender, or if the state provides treatment to a sex offender during incarceration, probation, or parole or to a sexually violent predator pursuant to a civil commitment, as provided for in Chapter 48 of Title 44, the treatment must be provided by a person certified pursuant to subsection (A).
(C) For purposes of this section 'sex offender' has the same meaning provided for in Section 23-3-430."
SECTION 9. Section 44-48-30(n) through (p) of the 1976 Code, as last amended by Act 208 of 2004, are further amended to read:
"(n) assault and battery of a high and aggravated nature, if based on the circumstances of the case, the assault was a sexual offense;
(o) attempt to commit an offense enumerated in this item as provided by Section 16-1-80; or
(op) any offense for which the judge makes a specific finding on the record that based on the circumstances of the case, the person's offense should be considered a sexually violent offense.;
(pq) criminal solicitation of a minor, as provided in Section 16-15-342, 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); or
(ii) perform a sexual activity in the presence of the person solicited."
SECTION 10. Section 44-48-30 of the 1976 Code, as last amended by Act 208 of 2004, is further amended by adding an appropriately numbered item to read:
"( ) 'Probable cause' means a state of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the fact to be proved."
SECTION 11. Section 44-48-80 of the 1976 Code, as amended by Act 176 of 2004, is further amended to read:
"Section 44-48-80. (A) Upon filing of a petition, the court must 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). At this hearing the court must:
(1) verify the detainee's identity;
(2) receive evidence and hear arguments 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. However, in determining if there is probable cause, the court must not consider the fact that a mental health evaluation is not available.
(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.
In no event shall the detained person be permitted, as part of any proceedings under this chapter, to raise challenges to the validity of his prior criminal or institutional convictions or sentences.
(D) If the probable cause determination is made, the court must 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.
If the detained person refuses to cooperate with the evaluation and treatment as ordered by the court, evidence of this refusal is admissible in proceedings under this chapter, and the court may bar the detained person from introducing expert psychiatric or psychological evidence on his behalf."
SECTION 12. (A) The Department of Mental Health shall convene a committee to study the Sexually Violent Predator Act and make a report and recommendations to the General Assembly. the committee must be comprised of: the Governor or his designee, the Director of the Department of Mental Health or his designee, the Director of the Department of Corrections or his designee, the Attorney General or his designee, three members appointed by the Speaker of the House of Representatives and three members appointed by the President Pro Tempore of the Senate. The Committee must be chaired by the Governor, or his designee.
(B) Among those issues the committee shall study include, but are not limited to the following:
(1) reviewing the application of the commitment procedures provided for in this chapter;
(2) evaluating treatment standards and modalities used in the treatment of patients;
(3) reviewing progress of prisoners committed to the department pursuant to this chapter;
(4) reviewing the success and recidivism of patients released from commitment.
(C) The committee shall submit its report and recommendations to the Senate Judiciary Committee and the House Judiciary Committee before January 1, 2009.
SECTION 13. This act takes effect upon approval by the Governor.
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