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COMMITTEE REPORT
May 22, 2002
H. 5048
S. Printed 5/22/02--S.
Read the first time May 1, 2002.
To whom was referred a Bill (H. 5048) to amend Section 20-7-510, as amended, Code of Laws of South Carolina, 1976, relating to persons required to report child abuse and neglect, etc., respectfully
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 adding appropriately numbered SECTIONS to read:
/ SECTION . Section 16-17-490 of the 1976 Code is amended to read:
"It shall be is unlawful for any person over eighteen seventeen years of age to knowingly and wilfully encourage, aid, or cause or to do any act which shall cause or influence causes or influences a minor:
(1) To to violate any law or any municipal ordinance;
(2) To to become and be incorrigible or ungovernable or habitually disobedient and beyond the control of his or her parent, guardian, custodian, or other lawful authority;
(3) To to become and be habitually truant;
(4) To to without just cause and without the consent of his or her parent, guardian, or other custodian, repeatedly desert his or her home or place of abode;
(5) To to engage in any occupation which is in violation of law;
(6) To to associate with immoral or vicious persons;
(7) To to frequent any place the existence of which is in violation of law;
(8) To to habitually use obscene or profane language;
(9) To to beg or solicit alms in any public places under any pretense; and
(10) To to so deport himself or herself as to wilfully injure or endanger his or her morals or health or the morals or health of others.
Any person violating who violates the provisions of this section shall must, upon conviction, be fined not more than three thousand dollars or imprisoned for not more than three years, or both, in the discretion of the court.
This section is intended to be cumulative and shall must not be construed so as to defeat prosecutions under any other law which is applicable to unlawful acts embraced herein.
The provisions of this section shall do not apply to any school board of trustees promulgating rules and regulations as authorized by Section 59-19-90(3) which prescribe standards of conduct and behavior in the public schools of the district. Provided, however However, that any such rule or regulation which contravenes any portion of the provisions of this section shall must first require the consent of the parent or legal guardian of the minor or minors concerned."
SECTION ___. The 1976 Code is amended by adding:
"Section 17-23-175. (A) Unless otherwise admissible, an out-of-court statement made by a child victim to a third party is admissible in a general sessions court proceeding or a delinquency proceeding in a family court if the requirements of subsections (B), (C), and (D) are met.
(B) The out-of court statement must have been made by a child victim who was:
(1) under twelve years of age at the time the statement was made or who functioned cognitively, adaptively, or developmentally under the age of twelve at the time the statement was made; and
(2) the victim of:
(a) criminal sexual conduct in the first degree as defined in Sections 16-3-652 and 16-3-655;
(b) criminal sexual conduct in the second degree as defined in Sections 16-3-653 and 16-3-655;
(c) criminal sexual conduct in the third degree as defined in Section 16-3-654;
(d) assault with intent to commit criminal sexual conduct as defined in Section 16-3-656;
(e) committing or attempting a lewd act upon a child as defined in Section 16-15-140;
(f) knowingly disseminating obscene material to a minor twelve years of age or younger as defined in Section 16-15-355;
(g) first degree sexual exploitation of a minor as defined in Section 16-15-395;
(h) second degree sexual exploitation of a minor as defined in Section 16-15-405;
(i) third degree sexual exploitation of a minor as defined in Section 16-15-410;
(j) promoting prostitution of a minor as defined in Section 16-15-415;
(k) participating in the prostitution of a minor as defined in Section 16-15-425; or
(l) the common law offense of assault and battery of a high and aggravated nature.
(C) The out-of-court statement is admissible if the child testifies at the proceeding and the court finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness. In determining whether an out-of-court statement provides sufficient guarantees of trustworthiness, the court may consider, but is not limited to, the following factors:
(1) the child's personal knowledge of the event;
(2) the age and maturity of the child;
(3) certainty that the statement was made, including the credibility of the person testifying about the statement;
(4) any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;
(5) whether more than one person heard the statement;
(6) whether the child was suffering pain or distress when making the statement;
(7) the nature and duration of any alleged abuse;
(8) whether the child's young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;
(9) whether the statement has a ring of verity, has internal consistency or coherence, and uses terminology appropriate to the child's age;
(10) whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement; and
(11) any inculpatory statement of the defendant that corroborates the child's statement.
(D) The proponent of the statement must inform the adverse party of the proponent's intention to offer the statement at least thirty days prior to the proceeding at which it is to be offered. If a statement is made or discovered within thirty days of the proceeding, the proponent must inform the adverse party of the proponent's intention to offer the statement within forty-eight hours of when the proponent knows of the existence of the statement.
(E) The contents of a statement offered under this section are subject to discovery pursuant to Rule 5 of the Rules of Criminal Procedure.
(F) If the declarant is twelve years of age or older, the adverse party may challenge the determination that the child functions cognitively, adaptively, or developmentally under the age of twelve." /
Renumber sections to conform.
Amend title to conform.
ROBERT L. WALDREP, JR. for Committee.
TO AMEND SECTION 20-7-510, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PERSONS REQUIRED TO REPORT CHILD ABUSE AND NEGLECT, SO AS TO INCLUDE A MEMBER OF THE CLERGY; AND TO AMEND SECTION 20-7-550, AS AMENDED, RELATING TO PRIVILEGED COMMUNICATIONS WHICH APPLY AND DO NOT APPLY WITH REGARD TO REPORTING CHILD ABUSE OR NEGLECT, SO AS TO PROVIDE THAT THE PRIEST AND PENITENT PRIVILEGE ONLY APPLIES WHEN THE COMMUNICATION IS MADE IN THE COURSE OF A SACRAMENTAL COMMUNICATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 20-7-510(A) of the 1976 Code, as amended by Act 81 of 2001, is further amended to read:
"(A) A physician, nurse, dentist, optometrist, medical examiner or coroner or an employee of a county medical examiner's or coroner's office or any other medical, emergency medical services, mental health, or allied health professional or Christian science practitioner, religious healer, member of the clergy, school teacher, counselor, principal, assistant principal, social or public assistance worker, substance abuse treatment staff, or childcare worker in any daycare center or foster care facility, police or law enforcement officer, undertaker, funeral home director or employee of a funeral home, persons responsible for processing of films, computer technician, or any judge shall report in accordance with this section when in the person's professional capacity the person has received information which gives the person reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect child has been or may be abused or neglected as defined in Section 20-7-490."
SECTION 2. Section 20-7-550 of the 1976 Code, as amended by Act 450 of 1996, is further amended to read:
"Section 20-7-550. The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client or priest clergy member and penitent, is abrogated and does not constitute grounds for failure to report or the exclusion of evidence in a civil protective proceeding resulting from a report pursuant to this article. However, a clergy member must report in accordance with this subarticle except when information is received during a communication that is protected by the clergy and penitent privilege as defined in Section 19-11-90."
SECTION 3. This act takes effect upon approval by the Governor.
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