Committee Report

April 19, 2023

H. 3583

Introduced by Reps. Guffey, Lawson, Pace, Haddon, O'Neal, Pope, Ligon, B. Newton, Sessions, Anderson, Taylor, Carter, Brewer, Murphy, White, Guest, Mitchell, Pedalino, Oremus, Wooten, Caskey, Leber, Landing, Chapman, Vaughan, Hiott, Gilliam, Cromer, B. L. Cox, Moss, T. Moore, Beach, J. L. Johnson, Hartnett, Bauer, Schuessler, Bailey, Neese, W. Newton, Jordan, Hewitt, King, Gilliard, Williams, Jefferson, Weeks, Trantham, Nutt, McCravy, Robbins, Ballentine, Calhoon, M. M. Smith, Davis, Cobb-Hunter, Henegan, G. M. Smith, Atkinson, Erickson, W. Jones and Felder

 

S. Printed 04/19/23--H.

Read the first time January 10, 2023

 

________

 

The committee on House Judiciary

To who was referred a Bill (H. 3583) to amend the South Carolina Code of Laws by adding Section 16-15-430 so as to create the offenses of "sexual extortion" and "aggravated sexual extortion", to define, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

 

    Amend the bill, as and if amended, by striking all after the enacting words and inserting:

SECTION 1.  Article 3, Chapter 15, Title 16 of the S.C. Code is amended by adding:

 

    Section 16-15-430. (A) As used in this section:

       (1) "Adult" means a person eighteen years or older.

       (2) "Minor" means any person under eighteen years of age at the time of the alleged offense.

       (3) "Great bodily injury" means bodily injury which causes a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.

       (4) "Private image" means an image depicting sexually explicit nudity or sexual activity, as defined in Section 16-15-375, or sexual conduct, as defined in Section 16-15-305.

       (5) "Image" means a photograph, film, videotape, recording, live transmission, digital or computer-generated visual depiction, or any other reproduction made by electronic, mechanical, or other means.

       (6) "Disclose" means exhibit, transfer, publicize, distribute, or reproduce.

       (7) "Vulnerable adult" has the same meaning as in Section 43-35-10.

    (B) A person commits the offense of felony sexual extortion if the actor intentionally and maliciously threatens to release private images of another in order to compel or attempt to compel the victim to do any act or refrain from doing any act against his will with the intent to obtain additional private images or anything else of value. Except as provided in subsection (C), a person convicted of felony sexual extortion must be imprisoned:

       1) not more than five years for a first offense;

       2) not more than ten years for a second offense; or

       3) not more than twenty years for a third or subsequent offense.

    (C)(1) If the victim is a minor or vulnerable adult and the person convicted of felony sexual extortion is an adult, then the person must be imprisoned not more than twenty years. In addition to any order of restitution, the court may include the costs of behavioral health counseling from an appropriate agency or provider.

       (2) If the person convicted is a minor, then the person is guilty of misdemeanor sexual extortion and must be imprisoned not more than one year. The court may order as a condition of sentencing behavioral health counseling from an appropriate agency or provider.

    (D) If a victim suffers great bodily injury or death and the finder of fact finds beyond a reasonable doubt that the sexual extortion of the victim was the proximate cause of the great bodily injury or death, then the person is guilty of felony sexual extortion and must be imprisoned not more than twenty years.

 

SECTION 2.  Local school districts shall collaborate with the State Department of Education, the South Carolina Law Enforcement Division, and the Attorney General's office, as appropriate, to implement a policy to educate and notify students of the provisions of this act which includes adequate notice to students, parents or guardians, the public, and school personnel of the change in law.

 

SECTION 3.  This act takes effect upon approval by the Governor.

Renumber sections to conform.

Amend title to conform.

 

WESTON NEWTON for Committee.

 

statement of estimated fiscal impact

Explanation of Fiscal Impact

 

State Expenditure

This bill creates new offenses for sexual extortion and aggravated sexual extortion. 

 

Acts of sexual extortion consist of the following:

 

Acts involving willful and malicious intent to coerce a victim to engage in sexual conduct, in sexually explicit conduct, or in simulated sexually explicit conduct, or to communicate by any means a threat to either the victim's person, property, or reputation or distribution of an intimate image or video of the victim; or

Acts knowingly causing a victim to engage in sexual conduct, in sexually explicit conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute any image, video, or other recording of any person naked or engaged in sexually explicit conduct by means of a threat.

 

In conjunction with the acts described above, acts of aggravated sexual extortion include the following:

Acts where the victim is a child or vulnerable adult;

Acts where the offense was committed by the use of a dangerous weapon or by violence, intimidation, menace, fraud, or threat of physical harm, or was committed during the course of a kidnapping;

Acts where the person caused bodily injury or severe psychological injury to the victim during or as a result of the offense;

Acts where the person was a stranger to the victim or became a friend of the victim for the purpose of committing the offense;

Acts where the person, before sentencing for the offense, was previously convicted of any sexual offense;

Acts where the person occupied a position of special trust in relation to the victim;

Acts where the person encouraged, aided, allowed, or benefitted from acts of prostitution or sexual acts by the victim with any other person, or sexual performance by the victim before any other person, human trafficking, or human smuggling; or

Acts where the person caused the penetration, however slight, of the genital or anal opening of the victim by any part or part of the human body, or by any other object.

 

The bill establishes the following penalty schedule for these offenses:

 

Offender     Violation                       Offense Type    Punishment

Adult          Sexual extortion            Felony               Imprisonment for not more than 5 years

Adult          Aggravated sexual        Felony               Imprisonment for not more than 30 years if victim is a child or

                   extortion                                                  vulnerable adult; registration as a sex offender at discretion of

                                                                                   presiding judge

Adult          Aggravated sexual        Felony               Imprisonment for not more than 15 years if victim is an adult

                   extortion

Child           Sexual extortion or       Misdemeanor    Imprisonment for not more than 3 years 

                   aggravated sexual extortion

 

Adult or      Sexual extortion or       Felony               Imprisonment for not less than 15 years

child            aggravated sexual                                  

                   extortion resulting in

                   death of victim

 

The bill provides that a person commits a separate offense for each victim he subjects to acts of sexual extortion.  In addition, it provides that an interactive computer service is not subject to liability for content provided by a user of the service.

 

Judicial reports that implementation of the bill may result in an increase in general sessions court caseloads, which can be managed using existing staff and appropriations.  Therefore, the bill will result in no expenditure impact for Judicial.  Also, the Commission on Prosecution Coordination and the Commission on Indigent Defense report that the bill will have no expenditure impact since these agencies will manage any additional responsibilities resulting from the bill with existing staff and resources.  Further, SCDC anticipates this bill may modify how long an inmate may be incarcerated.  According to SCDC, in FY 2021-22, the annual total cost per inmate was $32,247, of which $30,044 was state funded, and the marginal cost per inmate was $4,836, of which $4,830 was state funded.  However, SCDC anticipates being able to manage any additional expenses within existing appropriations.

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

________

 

 

 

 

 

 

 

 

A bill

 

to amend the South Carolina Code of Laws by adding Section 16-15-430 so as to create the offenses of "sexual extortion" and "aggravated sexual extortion", to define necessary terms, and to provide penalties for violations.

 

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

 

SECTION 1.  Article 3, Chapter 15, Title 16 of the S.C. Code is amended by adding:

 

    Section 16-15-430. (A) As used in this section:

       (1) "Adult" means a person eighteen years or older.

       (2) "Child" means any person under eighteen years of age.

       (4) "Intimate image" means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:

           (a) exposed human male or female genitals or pubic area, with less than an opaque covering;

           (b) a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or

           (c) a person engaged in any sexually explicit conduct.

       (5) "Position of special trust" means:

           (a) an adoptive parent;

           (b) an athletic manager who is an adult;

           (c) an aunt;

           (d) a babysitter;

           (e) a coach;

           (f) a cohabitant of a parent if the cohabitant is an adult;

           (g) a counselor;

           (h) a doctor or physician;

           (i) an employer;

           (j) a foster parent;

           (k) a grandparent;

           (l) a legal guardian;

           (m) a natural parent;

           (n) a recreational leader who is an adult;

           (o) a religious leader;

           (p) a sibling or a stepsibling who is adult;

           (q) a scout leader who is an adult;

           (r) a stepparent;

           (s) a teacher or any other person employed by or volunteering at a public or private elementary school or secondary school, and who is an adult;

           (t) an instructor, professor, or teaching assistant at a public or private institution of higher education;

           (u) an uncle

           (v) a youth leader who is an adult; or

           (w) any other person in a position of authority which enables the person to exercise undue influence over the child.

       (6) "Sexually explicit conduct" means actual or simulated:

           (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

           (b) masturbation;

           (c) bestiality;

           (d) sadistic or masochistic activities;

           (e) exhibition of the genitals, pubic region, buttocks, or female breast of any person;

           (f) visual depiction of nudity or partial nudity;

           (g) fondling or touching of the genitals, pubic region, buttocks, or female breast; or

           (h) explicit representation of the defecation or urination functions.

       (7) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.

       (8) "Vulnerable adult" means as defined in Section 43-35-10.

    (B) A person commits the offense of sexual extortion if the person:

       (1) with the wilful and malicious intent to coerce a victim to engage in sexual contact, in sexually explicit conduct, or in simulated sexually explicit conduct, communicates by any means a threat:

           (a) to the victim's person, property, or reputation; or

           (b) to distribute an intimate image or video of the victim;

       (2) knowingly causes a victim to engage in sexual contact, in sexually explicit conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute any image, video, or other recording of any person naked or engaged in sexually explicit conduct by means of a threat:

           (a) to the victim's person, property, or reputation; or

           (b) to distribute an intimate image or video of the victim.

    (C) A person commits aggravated sexual extortion when, in conjunction with the offense described in subsection (B), any of the following circumstances have been charged and admitted or found true in the action for the offense:

       (1) the victim is a child or vulnerable adult;

       (2) the offense was committed by the use of a dangerous weapon or by violence, intimidation, menace, fraud, or threat of physical harm, or was committed during the course of a kidnapping;

       (3) the person caused bodily injury or severe psychological injury to the victim during or as a result of the offense;

       (4) the person was a stranger to the victim or became a friend of the victim for the purpose of committing the offense;

       (5) the person, before sentencing for the offense, was previously convicted of any sexual offense;

       (6) the person occupied a position of special trust in relation to the victim;

       (7) the person encouraged, aided, allowed, or benefitted from acts of prostitution or sexual acts by the victim with any other person, or sexual performance by the victim before any other person, human trafficking, or human smuggling; or

       (8) the person caused the penetration, however slight, of the genital or anal opening of the victim by any part or parts of the human body, or by any other object.

    (D) An adult who violates the provisions of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned not more than five years.

    (E)(1) An adult who violates the provisions of subsection (C) is guilty of a felony and, upon conviction, must be imprisoned not more than thirty years if the victim is a child or a vulnerable adult, and may be ordered to be included in the sex offender registry as a condition of sentencing in the discretion of the presiding judge pursuant to Section 23-3-430.

       (2) If the victim is an adult, an adult who violates the provisions of subsection (C) is guilty of a felony and, upon conviction, must be imprisoned not more than fifteen years.

    (F) A child who violates the provisions of subsections (B) or (C) is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years.

    (G) Notwithstanding subsections (D), (E), and (F), a person who violates the provisions of subsections (B) or (C), and such violation results in the death of the victim, is guilty of a felony and, upon conviction, must be imprisoned not less than fifteen years.

    (H) A person commits a separate offense under this section:

       (1) for each victim the person subjects to the offense outlined in subsection (B); and

       (2) for each separate time the actor subjects a victim to the offense outlined in subsection (B).

    (I) An interactive computer service, as defined in 47 U.S.C. Section 230, is not subject to liability under this section related to content provided by a user of the interactive computer service.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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