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H. 4309
STATUS INFORMATION
General Bill
Sponsors: Reps. White, Clark, Bailey, Altman, G.R. Smith, Loftis, Moody-Lawrence, Toole and Mahaffey
Document Path: l:\council\bills\ms\7022ahb06.doc
Introduced in the House on January 10, 2006
Currently residing in the House Committee on Judiciary
Summary: Sex Offender Electronic Monitoring Act of 2006
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 11/16/2005 House Prefiled 11/16/2005 House Referred to Committee on Judiciary 1/10/2006 House Introduced and read first time HJ-24 1/10/2006 House Referred to Committee on Judiciary HJ-26
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ENACTING THE "SEX OFFENDER ELECTRONIC MONITORING ACT OF 2006"; BY ADDING SECTION 16-3-760 SO AS TO PROVIDE ADDITIONAL FACTORS FOR THE COURT TO CONSIDER WHEN CONSIDERING RELEASE OF A PERSON ON BOND WHO IS CHARGED WITH CERTAIN OFFENSES WHICH WOULD REQUIRE THE PERSON TO REGISTER ON THE SEX OFFENDER REGISTRY; TO AMEND SECTION 16-3-20, AS AMENDED, 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 16-3-652, RELATING TO CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE, SO AS TO REVISE THE PENALTY FOR A PERSON CONVICTED OF CRIMINAL SEXUAL CONDUCT WITH A MINOR IN THE FIRST DEGREE SO AS TO PROVIDE FOR A MANDATORY MINIMUM PENALTY OF TWENTY-FIVE YEARS OR IMPRISONMENT FOR LIFE; TO AMEND SECTION 16-3-655, RELATING TO CRIMINAL SEXUAL CONDUCT WITH A MINOR, SO AS TO INCREASE THE PENALTY FOR CRIMINAL SEXUAL CONDUCT WITH A MINOR IN THE FIRST DEGREE, TO INCREASE THE AGE OF THE VICTIM FROM NOT LESS THAN ELEVEN TO NOT LESS THAN THIRTEEN YEARS OF AGE FOR CRIMINAL SEXUAL CONDUCT WITH A MINOR IN THE FIRST DEGREE, AND TO ADJUST THE AGE OF THE VICTIM ACCORDINGLY FOR CRIMINAL SEXUAL CONDUCT WITH A MINOR IN THE SECOND DEGREE; TO AMEND SECTION 16-3-910, RELATING TO KIDNAPPING, SO AS TO CREATE THE OFFENSE OF KIDNAPPING A PERSON LESS THAN EIGHTEEN YEARS OF AGE AND TO PROVIDE A PENALTY; TO AMEND SECTION 23-3-460, AS AMENDED, 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 ACTIVE ELECTRONIC MONITORING REQUIREMENTS FOR CERTAIN SEX OFFENDERS, SO AS TO EXPAND THE REQUIREMENTS TO ALL OFFENDERS REQUIRED TO BE REGISTERED ON THE SEX OFFENDER REGISTRY, TO PROVIDE A DEFINITION FOR THE TERM "ACTIVE ELECTRONIC MONITORING DEVICE", AND TO DIRECT THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES TO EMPLOY A COMPETITIVE BIDDING PROCESS WHEN OBTAINING ACTIVE ELECTRONIC MONITORING DEVICES; AND TO AMEND SECTION 23-3-550, RELATING TO THE OFFENSE OF WILFULLY PROTECTING, HARBORING, OR CONCEALING A PERSON WHO IS REQUIRED TO BE REGISTERED ON THE SEX OFFENDER REGISTRY, SO AS TO EXPAND THE DEFINITION OF THE OFFENSE AND INCLUDE PROVIDING FALSE INFORMATION TO A LAW ENFORCEMENT AGENCY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Sex Offender Electronic Monitoring Act of 2006".
SECTION 2. Article 7, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-760. (A) In addition to the provisions of Section 17-15-30 or another provision of law, the court shall consider the factors provided in subsection (B) when considering release of a person on bond who is charged with a violation of a law which, if convicted, would require the person to register on the sex offender registry pursuant to Article 7, Chapter 3, Title 23.
(B) The court shall consider the following factors before release of a person on bond who is subject to the provisions of subsection (A), if the person:
(1) is on the sex offender registry pursuant to a previous conviction in this State or another state;
(2) is currently on probation, parole, or community supervision for one of the offenses provided in subsection (A) in this State or another state;
(3) is deemed a sexually violent predator pursuant to the provisions of Chapter 48, Title 44; and
(4) poses a danger to the public if released with or without bail.
(C) In determining if the person poses a danger to the public pursuant to subsection (B)(4), the court may consider:
(1) the nature and circumstances of the violation and the new offense charged;
(2) the person's past and present conduct, including past criminal convictions;
(3) the person's record of arrests without conviction for violent crimes as defined in Section 16-1-60 or sex offenses;
(4) other evidence of allegations of unlawful sexual conduct or the use of violence by the person;
(5) the person's family ties, length of residence in the community, and employment history;
(6) the person's mental condition;
(7) the person's history and conduct while on probation, parole, or community supervision, including disciplinary records of previous incarcerations;
(8) the likelihood that the person will again engage in criminal conduct;
(9) the weight of the evidence against the person; and
(10) other factors the court considers relevant."
SECTION 3. Section 16-3-20(C)(a) of the 1976 Code, as last amended by Act 224 of 2002, is further amended by adding an appropriately numbered item 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 4. Section 16-3-652 of the 1976 Code is amended to read:
"Section 16-3-652. (1)(A) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven, the:
(a)(1) The actor uses aggravated force to accomplish sexual battery.;
(b)(2) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other another similar offense or act.; or
(c)(3) The actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any an intoxicating substance.
(2)(B) Criminal sexual conduct in the first degree is a felony punishable by imprisonment for not more than thirty years, according to in the discretion of the court, except as provided in subsection (C).
(C) A person convicted of a violation of Section 16-3-655(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."
SECTION 5. Section 16-3-655 of the 1976 Code, as last amended by Act 94 of 2005, is further amended to read:
"Section 16-3-655. (A) A person is guilty of criminal sexual conduct in the first degree if:
(1) the actor engages in sexual battery with the victim who is less than eleven thirteen 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 a mandatory minimum of twenty-five years, no part of which may be suspended or probation granted; or for life in the discretion of the court.
(B) A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven thirteen years of age.
(C) A person is guilty of criminal sexual conduct in the second degree if 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."
SECTION 6. Section 16-3-910 of the 1976 Code is amended to read:
"Section 16-3-910. (A) Whoever shall Except as provided in subsection B, a person who unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away any other another person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent, is guilty of a felony and, upon conviction, must be imprisoned for a period not to exceed more than thirty years unless sentenced for murder as provided in Section 16-3-20.
(B) A person who unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away another person who is less than eighteen years of age without authority of law, except when a minor is seized or taken by his parent, 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 may be imprisoned for life in the discretion of the court."
SECTION 7. Section 23-3-460 of the 1976 Code, as last amended by Act 141 of 2005, is further amended to read:
"Section 23-3-460. (A) A person required to register under pursuant to this article is required to register annually for life in person each year during the month of his birthday and again during the sixth month following his birth month. For purposes of this article, 'annually' means each year within thirty days after the anniversary date of the offender's last registration. The offender person required to register shall register and must reregister 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 8. Section 23-3-530 of the 1976 Code, as added by Act 110 of 1999, 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 required to register pursuant to this article resides; and
(2) specific requirements for registration and reregistration including, but not limited to, the following:
(a) 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 who is required to register pursuant to this article 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 who is required to register pursuant to this article lives in a vessel, live-aboard vessel, or houseboat."
SECTION 9. Section 23-3-540 of the 1976 Code, as added by Act 141 of 2005, is amended to read:
"Section 23-3-540. (A) For the purposes of this article, 'active electronic monitoring device' includes, but is not limited to, a global positioning system satellite surveillance method.
(B) 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 Notwithstanding another provision of law, a person incarcerated or on probation, parole, or community supervision, upon release from incarceration or when placed under the supervision of the Department of Probation, Parole and Pardon Services must be monitored by an active electronic monitoring device for the duration of time he is required to remain on the sex offender registry pursuant to the provisions of Article 7, Chapter 3, Title 23 and 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.
(B)(C) An offender who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court to be placed monitored by the Department of Probation, Parole and Pardon Services under a system of on an active electronic monitoring device for the duration of the time he is required to remain on the sex offender registry pursuant to the provisions of Article 7, Chapter 3, Title 23 and 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.
(C)(D) This section applies to an offender 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, first degree (Section 16-3-655(1));
(b) criminal sexual conduct with minors, second degree. 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, the convicted person is not an offender and is not required to register pursuant to the provisions of this article;
(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);
(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 The provisions of this section apply to all persons required to be registered on the sex offender registry pursuant to Article 7, Chapter 3, Title 23.
(D)(E) The offender shall remain under on the system of active electronic monitoring device for the duration of the time the offender is required to remain on the sex offender registry pursuant to the provisions of this article, unless the offender is committed to the custody of the State.
(E)(F) The offender 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 electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. An offender 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)(G) The offender shall abide by any other conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the electronic monitoring.
(G)(H) The offender must be charged a fee in accordance with Section 24-21-85.
(H)(I) A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an 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 electronic monitoring devices."
SECTION 10. Section 23-3-550 of the 1976 Code, as added by Act 141 of 2005, 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 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 he:
(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 11. 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 12. If any section, subsection, 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, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 13. This act takes effect upon approval by the Governor.
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