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TO AMEND SECTION 16-15-375, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS FOR THE PURPOSES OF CRIMES INVOLVING OBSCENITY AND CHILD SEXUAL EXPLOITATION, SO AS TO PROVIDE THAT THE DEFINITION OF THE TERM "SEXUALLY EXPLICIT NUDITY" DOES NOT INCLUDE MATERIAL OF A PRIVATE, FAMILY NATURE NOT HARMFUL TO MINORS; TO AMEND SECTION 16-15-395, AS AMENDED, RELATING TO FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE THE APPEARANCE OF A MINOR IN A STATE OF SEXUALLY EXPLICIT NUDITY IN THE PURVIEW OF THE OFFENSE; TO AMEND SECTION 16-15-405, AS AMENDED, RELATING TO SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE THE APPEARANCE OF A MINOR IN A STATE OF SEXUALLY EXPLICIT NUDITY IN THE PURVIEW OF THE OFFENSE AND INCREASE THE MAXIMUM PENALTY FROM TEN TO FIFTEEN YEARS; AND TO AMEND SECTION 16-15-410, AS AMENDED, RELATING TO THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE THE APPEARANCE OF A MINOR IN A STATE OF SEXUALLY EXPLICIT NUDITY IN THE PURVIEW OF THE OFFENSE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-15-375(6) of the 1976 Code is amended to read:
"(6) 'Sexually explicit nudity' means the showing of:
(a) uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or
(b) covered human male genitals in a discernibly turgid state.
'Sexually explicit nudity' does not include material of a private, family nature that does not meet the definition of material that is 'harmful to minors' as defined in this section."
SECTION 2. Section 16-15-395 of the 1976 Code, as last amended by Act 208 of 2004, is further 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 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;
(2) permits a minor under his custody or control to engage in sexual activity or appear in a state of sexually explicit nudity 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;
(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 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; 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 engaged in sexual activity or a state of sexually explicit nudity.
(B) In a prosecution under 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 under 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 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."
SECTION 3. Section 16-15-405 of the 1976 Code, as last amended by Act 208 of 2004, is further 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 engaged in sexual activity or appearing in a state of sexually explicit nudity; or
(2) distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity or appearing in a state of sexually explicit nudity.
(B) In a prosecution underpursuant 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 under 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 two years nor more than ten fifteen 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."
SECTION 4. Section 16-15-410 of the 1976 Code, as last amended by Act 226 of 2008, is further 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 engaging in sexual activity or appearing in a state of sexually explicit nudity.
(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) 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.
(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."
SECTION 5. 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 6. This act takes effect upon approval by the Governor.
This web page was last updated on November 29, 2011 at 4:57 PM