A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 16-15-395, RELATING TO FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR DEFINED;  PRESUMPTIONS;  DEFENSES;  PENALTIES, SO AS TO INCREASE THE MINIMUM PENALTY TO FIVE YEARS' IMPRISONMENT; BY AMENDING SECTION 16-15-405, RELATING TO SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR DEFINED;  PRESUMPTIONS;  DEFENSES;  PENALTIES, SO AS TO INCREASE THE MINIMUM PENALTY TO THREE YEARS' IMPRISONMENT; AND BY AMENDING SECTION 16-15-410, RELATING TO THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR DEFINED;  PENALTIES;  EXCEPTION, SO AS TO ESTABLISH PENALTIES BASED ON THE NUMBER OF IMAGES POSSESSED, INCLUDING A PENALTY OF UP TO TEN YEARS IF THERE ARE ONE TO TWENTY-FIVE IMAGES, ONE TO TEN YEARS IF THERE ARE TWENTY-SIX TO TWO HUNDRED FIFTY IMAGES, AND A PENALTY OF TWO TO TEN YEARS IF THERE ARE MORE THAN TWO HUNDRED FIFTY IMAGES; AND TO ESTABLISH THAT A PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER AND VIOLATES THE PROVISIONS OF THE SECTION, UPON CONVICTION, MUST SERVE A MINIMUM OF FIVE YEARS.

 

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

 

SECTION 1.  Section 16-15-395 of the S.C. Code is 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 appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;

       (2) permits a minor under his custody or control to engage in sexual activity or appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;

       (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 appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;  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 or a morphed image of an identifiable minor engaged in sexual activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

    (B) In a prosecution pursuant to this section, the trier of fact may infer that a participant in a sexual activity or a state of sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.

    (C) Mistake of age is not a defense to a prosecution pursuant to this section.

    (D) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than three five years nor more than twenty years.  No part of the minimum sentence of imprisonment may be suspended nor is the individual convicted eligible for parole until he has served the minimum term of imprisonment.  Sentences imposed pursuant to this section must run consecutively with and commence at the expiration of another sentence being served by the person sentenced.

    (E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A)(4) is a minor and the offense is the minor's first offense related to a morphed image of an identifiable minor.  The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

 

SECTION 2.  Section 16-15-405 of the S.C. Code is 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 or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;  or

       (2) distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

    (B) In a prosecution pursuant to this section, the trier of fact may infer that a participant in sexual activity or a state of sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.

    (C) Mistake of age is not a defense to a prosecution pursuant to 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 twothree years nor more than ten years.  No part of the minimum sentence may be suspended nor is the individual convicted eligible for parole until he has served the minimum sentence.

    (E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor and the offense is the minor's first charge related to a morphed image of an identifiable minor.  The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

 

SECTION 3.  Section 16-15-410 of the S.C. Code is 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 or a morphed image of an identifiable minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

    (B) In a prosecution pursuant to this section, the trier of fact may infer that a participant in sexual activity or a state of sexually explicit nudity depicted as a minor through its title, text, visual representation, or otherwise, is a minor.

    (C)(1) 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.for:

           (a) not more than ten years if the person possesses one to twenty-five or less images;

           (b) one to ten years if the person possesses twenty-six images to two hundred fifty images; and

           (c) two to ten years if the person possesses more than two hundred fifty images.

       (2) A person who violates the provisions of this section and is required to register as a sex offender in accordance with Section 23-3-430, upon conviction, must serve a minimum of five years.

    (D) This section does not apply to an employee of a law enforcement agency, including the State Law Enforcement Division, a prosecuting agency, including the South Carolina Attorney General's Office, or the South Carolina Department of Corrections who, while acting within the employee's official capacity in the course of an investigation or criminal proceeding, is in possession of material that contains a visual representation of a minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.  The employee's official capacity in the course of such investigation or criminal proceeding includes making material available for inspection to the defendant's counsel in response to discovery requests.

    (E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor and the offense is the minor's first charge related to a morphed image of an identifiable minor.  The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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