S 1227 Session 114 (2001-2002)
S 1227 General Bill, By Thomas
Similar(H 4807)
A BILL TO AMEND SECTION 16-3-1700, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO THE DEFINITIONS OF HARASSMENT AND STALKING, SO AS TO PROVIDE
THAT HARASSMENT INCLUDES UNLAWFULLY DIRECTING OR FOCUSING A DIGITAL,
ELECTRONIC, LASER, HEAT-SEEKING, NOISE-MAKING, LISTENING, OR OTHER ELECTRONIC
OR MECHANICAL DEVICE ON ANOTHER PERSON, HIS DWELLING, OR ANY OTHER PLACE WHERE
THE TARGETED PERSON SEEKS SECLUSION FROM PUBLIC VIEW OR HAS A REASONABLE
EXPECTATION OF PRIVACY , AND SENDING AN OBSCENE, THREATENING, OR HARASSING
COMMUNICATION TO ANOTHER PERSON WHO IS AN UNWILLING RECIPIENT WITH THE INTENT
AND PURPOSE OF CONVEYING AN UNSOLICITED OBSCENE, IMMINENTLY THREATENING, OR
HARASSING MESSAGE TO AN UNWILLING RECIPIENT; TO PROVIDE THAT, IN AN EGREGIOUS
CASE, HARASSMENT INCLUDES A SINGLE ACT OF INTENTIONAL, SUBSTANTIAL, AND
UNREASONABLE INTRUSION INTO THE PRIVACY , PRIVATE LIFE, OR PERSONAL SPACE OF A
TARGETED PERSON THAT IS CONSPICUOUSLY BAD OR OFFENSIVE AND CAUSES THE PERSON
AND WOULD CAUSE A REASONABLE PERSON IN HIS POSITION TO SUFFER FEAR, OUTRAGE,
OR MENTAL DISTRESS, TO PROVIDE "STALKING" ALSO MEANS A SINGLE INSTANCE OF
CERTAIN CONDUCT IN AN EGREGIOUS CASE OR SITUATION; TO DEFINE "VIDEO
VOYEURISM", AND "ROUTINE IMAGING OR VIDEO MONITORING FOR SECURITY PURPOSES",
"SURVEILLANCE", " PRIVACY ", "PERSONAL SPACE", "INVADE" AND "EGREGIOUS CASE OR
SITUATION"; AND TO AMEND CHAPTER 17, TITLE 16, RELATING TO OFFENSES AGAINST
THE PERSON, BY ADDING SECTION 16-3-1735 SO AS TO PROVIDE THAT IT IS UNLAWFUL
FOR A PERSON TO ENGAGE IN VIDEO VOYEURISM, TO PROVIDE FOR CERTAIN EXCEPTIONS
TO THE APPLICATION OF THIS SECTION, TO PROVIDE THAT THE PROVISIONS OF SECTIONS
16-3-1740 THROUGH 16-3-1840 ARE APPLICABLE IN SITUATIONS AND CASES INVOLVING
VIDEO VOYEURISM IN LIKE MANNER AND TO THE SAME EXTENT THEY ARE APPLICABLE IN
SITUATION
04/17/02 Senate Introduced and read first time SJ-8
04/17/02 Senate Referred to Committee on Judiciary SJ-8
A BILL
TO AMEND SECTION 16-3-1700, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITIONS OF HARASSMENT AND STALKING, SO AS TO PROVIDE THAT HARASSMENT INCLUDES UNLAWFULLY DIRECTING OR FOCUSING A DIGITAL, ELECTRONIC, LASER, HEAT-SEEKING, NOISE-MAKING, LISTENING, OR OTHER ELECTRONIC OR MECHANICAL DEVICE ON ANOTHER PERSON, HIS DWELLING, OR ANY OTHER PLACE WHERE THE TARGETED PERSON SEEKS SECLUSION FROM PUBLIC VIEW OR HAS A REASONABLE EXPECTATION OF PRIVACY , AND SENDING AN OBSCENE, THREATENING, OR HARASSING COMMUNICATION TO ANOTHER PERSON WHO IS AN UNWILLING RECIPIENT WITH THE INTENT AND PURPOSE OF CONVEYING AN UNSOLICITED OBSCENE, IMMINENTLY THREATENING, OR HARASSING MESSAGE TO AN UNWILLING RECIPIENT; TO PROVIDE THAT, IN AN EGREGIOUS CASE, HARASSMENT INCLUDES A SINGLE ACT OF INTENTIONAL, SUBSTANTIAL, AND UNREASONABLE INTRUSION INTO THE PRIVACY , PRIVATE LIFE, OR PERSONAL SPACE OF A TARGETED PERSON THAT IS CONSPICUOUSLY BAD OR OFFENSIVE AND CAUSES THE PERSON AND WOULD CAUSE A REASONABLE PERSON IN HIS POSITION TO SUFFER FEAR, OUTRAGE, OR MENTAL DISTRESS, TO PROVIDE "STALKING" ALSO MEANS A SINGLE INSTANCE OF CERTAIN CONDUCT IN AN EGREGIOUS CASE OR SITUATION; TO DEFINE "VIDEO VOYEURISM", AND "ROUTINE IMAGING OR VIDEO MONITORING FOR SECURITY PURPOSES", "SURVEILLANCE", " PRIVACY ", "PERSONAL SPACE", "INVADE" AND "EGREGIOUS CASE OR SITUATION"; AND TO AMEND CHAPTER 17, TITLE 16, RELATING TO OFFENSES AGAINST THE PERSON, BY ADDING SECTION 16-3-1735 SO AS TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO ENGAGE IN VIDEO VOYEURISM, TO PROVIDE FOR CERTAIN EXCEPTIONS TO THE APPLICATION OF THIS SECTION, TO PROVIDE THAT THE PROVISIONS OF SECTIONS 16-3-1740 THROUGH 16-3-1840 ARE APPLICABLE IN SITUATIONS AND CASES INVOLVING VIDEO VOYEURISM IN LIKE MANNER AND TO THE SAME EXTENT THEY ARE APPLICABLE IN SITUATIONS AND CASES OF HARASSMENT, STALKING, OR AGGRAVATED STALKING, AND TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS SECTION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-3-1700 of the 1976 Code, as last amended by Act 81 of 2001, is further amended to read:
"Section 16-3-1700. As used in this article:
(A) 'Harass' or 'harassment' means to knowingly or intentionally irritate, trouble, torment, or besiege another person persistently, systematically, or incessantly, with repeated annoyances, threats, or demands. 'Harass' or 'harassment' also means a pattern of intentional, substantial, and unreasonable intrusion into the privacy , private life, or personal space of a targeted person that causes the person and would cause a reasonable person in his position to suffer fear or mental distress. In an egregious case, 'harass' or 'harassment' includes a single act of intentional, substantial, and unreasonable intrusion into the privacy , private life, or personal space of a targeted person that is conspicuously bad or offensive and causes the person and would cause a reasonable person in his position to suffer fear, outrage, or mental distress.
Harassment may also include, but is not limited to:
(1) following the targeted person as he moves from location to location;
(2) visual, physical, verbal, written, or electronic contact or communication by email, digital, laser, or another electron means that is initiated, maintained, or repeated after a person has been provided notice that the contact is unwanted;
(3) surveillance of or the maintenance of a presence near the targeted person's:
(a) residence;
(b) place of work;
(c) school; or
(d) another place regularly occupied by the targeted person; and
(4) vandalism and property damage;
(5) unlawfully directing or focusing a digital, electronic, laser, heat-seeking, noise-making, listening, or another device of whatsoever kind or nature on another person, his dwelling, or any other place where a targeted person seeks refuge and seclusion from public view or has a reasonable expectation of privacy ; and
(6) sending an obscene, threatening, or harassing communication to another person who is an unwilling recipient with the intent and purpose of conveying an unsolicited obscene, imminently threatening, or harassing message to an unwilling recipient.
In a prosecution for a violation of this section, it may be inferred that sending an obscene, threatening, or harassing communication to another person anonymously, with the intent and purpose of conveying an unsolicited obscene, threatening, or harassing message to an unwilling recipient, is an egregious case or situation of harassment.
Harassment does not include words or conduct that is protected by the Constitution or laws of this State or the United States and does not apply to or include the words or conduct of law enforcement officers, public officers and employees, or process servers when performing their official duties in a lawful manner.
(B) "Stalking" 'Stalk' or 'stalking' means to knowingly or intentionally pursue, follow, or track another person openly in a threatening or intimidating way, or by stealth, or in a manner that intentionally harasses, threatens, or invades the privacy or personal space of another. 'Stalk' or 'stalking' also means a single instance in an egregious case or situation or a pattern of words, or conduct, spoken, written, or conveyed by electronic, or another means, that is intended to cause and does cause a targeted person and would cause a reasonable person in the targeted person's position to fear:
(1) death of the person or a member of his family;
(2) assault upon the person or a member of his family;
(3) bodily injury to the person or a member of his family;
(4) criminal sexual contact on the person or a member of his family;
(5) kidnapping of the person or a member of his family; or
(6) damage to the property of the person or a member of his family.; or
(7) in an egregious case or situation, a single instance of intentional, substantial, and unreasonable intrusion into the privacy , private life, or personal space of a targeted person that causes the person and would cause a reasonable person in his position to suffer fear, outrage, or mental distress.
Stalking does not include words or conduct that is protected by the Constitution or laws of this State or the United States and does not apply to or include the words or conduct of law enforcement officers, public officers, or employees, or process servers when performing their official duties in a lawful manner.
(C) 'Aggravated stalking' means harassment, stalking, or the invasion of privacy or of personal space of another that is accompanied or followed by an a violent act of violence perpetrated against the person or property of another.
(D) 'Pattern' means two or more acts whether or not consistent in characteristic form, style, or method that are committed by a person engaged in harassing or stalking another person within a ninety-day period.
(E) 'Family' means a spouse, child, parent, sibling, or a person who regularly resides in the same household as the targeted person.
(F) 'Video voyeurism' is:
(1) the use of a camera, videotape, photo-optical, photo-electric, or another image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping and it is for a lewd or lascivious purpose; or
(2) the transfer of an image obtained by activity described in item (1) of this subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service.
(G) 'Routine imaging or video monitoring for security purposes' means imaging or videotaping by a video or electronic imaging system or another image recording device designed to monitor or record the arrival, presence, activities, or departure of a person on public or private property, in a public or private building or facility, including a private home or dwelling, or in a public or private motor vehicle, or another means of public or private transportation or conveyance, for the protection of persons, animals, or property, or for another bona fide government, business, transportation, farm, or home security purpose. 'Routine imaging or video monitoring for security purposes' does not include: intentionally imaging or videotaping a person in an area designed or intended to provide the seclusion necessary for a person to dress or undress, or to attend to personal needs or bodily functions, with the degree of privacy reasonably expected under the circumstances; or the imaging or video monitoring of a person for a lewd or lascivious purpose where that person has not consented to the imaging or video monitoring.
(H) 'Surveillance' means a sustained, frequent, or close observation of a person, a group of persons, a place, or a thing, or the act of observing, photographing, recording, or transmitting the image of a person, group of persons, place, or thing, by means of a telescope, binoculars, or another magnification device, or a camera, video recorder, imaging device, or by another means, or the condition of being observed, as the context may require. 'Surveillance' includes placing a person, microphone, transmitter, recorder, or another device in a position to secretly or surreptitiously eavesdrop, overhear, listen to, transmit, or record the voice, sound, or private conversation of another person.
(I) 'Invade' or 'invasion' means to knowingly and intentionally enter the land, building, or premises of another, whether public or private, including a house, home, or dwelling of another, a vehicle or conveyance of another, or another place or thing owned or occupied by another, by force, stealth, or trespass, or for the purpose of knowingly and intentionally encroaching, trespassing, intruding upon, or violating the privacy of another person, without authority, justification, or excuse that is reasonable under the circumstances.
(J) ' Privacy ' means the right of a person to be let alone, or to speak in a private or confidential manner with another, at certain times and places, or to be secluded from the sight, presence, view, or unsanctioned intrusion of others. ' Privacy ' includes, but is not limited to, the quality or condition of being secluded from the sight, presence, hearing, or view of others, and the state of being free from the unsanctioned intrusion of others, at times and places where a person is reasonably entitled to an expectation of privacy .
(K) 'Personal space' means the immediate area surrounding a person sufficient to allow the person freedom from the unlawful and unwanted external pressure of others, or an area designed or intended to provide the seclusion necessary for a person to dress or undress, or to attend to personal needs or bodily functions, with the degree of privacy reasonably expected under the circumstances.
(L) 'Egregious case or situation' means an act or instance of a person initiating an unsolicited and unwanted contact or communication with another, without justification or excuse, that is intended to offend or cause displeasure, anger, resentment, or wounded feelings in a manner that is conspicuously bad or offensive."
SECTION 2. Article 17, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-1735. (A) It is unlawful for a person to:
(1) use a camera, videotape, photo-optical, photo-electric, or another image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping for a lewd or lascivious purpose;
(2) transfer of an image obtained by activity described in item (1) of this subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service; or
(3) engage in video voyeurism or like conduct in any manner or form whatsoever.
(B)(1) Except as provided in items (3) and (4) of this subsection, a person who commits the crime of video voyeurism must, upon a first conviction, be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than two years, or both.
(2) On a second or subsequent conviction, a person who commits the crime of video voyeurism must be fined not more than two thousand dollars and imprisoned at hard labor for not less than six months nor more than three years without benefit of parole, probation, or suspension of sentence.
(3) A person who commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any vaginal, oral, or anal sexual intercourse, actual or simulated oral sex or sexual intercourse, masturbation, any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals must be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.
(4) A person who commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying his sexual desires or the sexual desires of another person must be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.
(C) The provisions of this section do not apply to words or conduct protected by the Constitution and laws of this State or of the United States, to law enforcement officers when engaged in the performance of their official duties, to lawful surveillance or routine imaging or video monitoring for security purposes, or to the transference of images by a telephone company, cable television company, or any of its affiliates, an Internet provider, or commercial online service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial online services.
(D) Unless objected to by a victim or victims, or needed as evidence in another civil or criminal proceeding, or for another good cause shown by a person having an interest in their disposition, the court, on its own motion, or on the motion of a solicitor, prosecuting attorney, victim, or of another person having an interest in their disposition, shall:
(1) order all photographs, film, videotapes, or other images introduced into evidence in a criminal prosecution or civil case to be sealed and retained with the record of the case or destroyed, as the interests of justice may require;
(2) order all photographs, film, videotapes, or other images coming into possession or held by a solicitor or prosecuting attorney in connection with a prosecution which results in a plea agreement, acquittal, nolle prosequi, or dismissal be sealed and retained in a secure manner by a designated law enforcement agency for future use as evidence, or destroyed, as the interests of justice may require;
(3) order that all photographs, film, videotapes, or other images of a victim or victims in the possession of a defendant, his attorney, or any other person be produced, delivered to a designated law enforcement agency, sealed, and retained securely for future use as evidence, or for destruction, as the interests of justice may require.
(E) Notwithstanding the provisions of subsection (D), ninety days after a person convicted of violating this section has completed his sentence, a victim may petition the court for an order requiring the destruction of all photographs, film, videotapes, or other images of the victim, including those introduced into evidence and sealed with the record of a case and those sealed and retained by a designated law enforcement agency for future use as evidence, be destroyed. After not less than five days notice to the circuit solicitor and the designated law enforcement agency having custody, and in the absence of a showing by a solicitor, prosecuting attorney, or law enforcement agency that there is some cause or necessity for retaining them, the court must order all photographs, film, videotapes, or other images of the victim destroyed. A solicitor in his discretion, and a designated law enforcement agency may waive the notice required by this subsection and may consent to an order providing for or requiring the destruction of all photographs, film, videotapes, or other images of the victim."
SECTION 3. This act takes effect upon approval by the Governor.
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