Indicates Matter Stricken

Indicates New Matter

 

Committee Report

February 21, 2024

 

S. 995

 

Introduced by Senators Hutto, Shealy, Reichenbach, Devine, Senn and McLeod

 

S. Printed 02/21/24--S.                                                                          [SEC 2/23/2024 2:12 PM]

Read the first time January 25, 2024

 

________

 

The committee on Senate Judiciary

To whom was referred a Bill (S. 995) to amend the South Carolina Code of Laws by amending Section 16-15-375, relating to definitions applicable to Sections 16-15-385 through 16-15-425, so as 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, SECTION 2, by adding:

Section 16-15-395 of the S.C. Code is amended by adding:

 

(E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A)(4) is a minor and the offense is the minor's first offense related to a morphed image of an identifiable minor. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

Amend the bill further, SECTION 3, by adding:

Section 16-15-405 of the S.C. Code is amended by adding:

 

(E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor, and the offense is the minor's first charge related to a morphed image of an identifiable minor. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

Amend the bill further, SECTION 4, by adding:

Section 16-15-410(D) of the S.C. Code is amended to read:

 

    (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 when a reasonable person would infer the purpose is sexual stimulation. The employee's official capacity in the course of such investigation or criminal proceeding includes making materials available for inspection to the defendant's counsel in response to discovery requests.

 

Section 16-15-410 of the S.C. Code is amended by adding:

 

(E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor and the offense is the minor's first offense related to a morphed image of an identifiable minor. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

Amend the bill further, SECTION 5, by striking Section 23-3-430(C)(2)(i), (j), and (k) and inserting:

           (i) criminal sexual exploitation of a minor, first degree (Section 16-15-395), provided the offender is under eighteen years of age and the offense is related to a morphed image of an identifiable minor, the adjudicated minor is not an offender and is not required to register pursuant to the provisions of this article;

           (j) criminal sexual exploitation of a minor, second degree (Section 16-15-405), provided the offender is under eighteen years of age and the offense is related to a morphed image of an identifiable minor, the adjudicated minor is not an offender and is not required to register pursuant to the provisions of this article; or

           (k) criminal sexual exploitation of a minor, third degree (Section 16-15-410), provided the offender is under eighteen years of age and the offense is related to a morphed image of an identifiable minor, the adjudicated minor is not an offender and is not required to register pursuant to the provisions of this article.

 

Renumber sections to conform.

Amend title to conform.

 

LUKE RANKIN for Committee.

 

 

statement of estimated fiscal impact

Explanation of Fiscal Impact

State Expenditure

This bill amends provisions related to offenses against morality and decency by:

 

Expanding the definition of material that may be harmful to minors to include computer generated pictures or images;

 

Creating the definition of identifiable minor to mean a person who (1) was a minor at the time an image was created, adapted, or modified or (2) whose image as a minor was created, adapted, or modified such that the person is identifiable by face, likeness, or other distinguishing characteristic; and

 

Creating the definition of morphed image to mean a visual depiction or representation (including any photograph, film, video, picture, or computer or computer-generated image or picture) of sexually explicit conduct where such depiction or representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct or sexually explicit activity or appearing in a state of sexually explicit nudity.

 

The bill also expands the offenses of first degree, second degree, and third degree sexual exploitation of a minor to include unlawful actions involving a morphed image of an identifiable minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.  In addition, the bill provides that Tier II sex offenders include persons who have been convicted of, or pled guilty or nolo contendere to first degree, second degree, or third degree criminal sexual exploitation of a minor.

 

Judicial.  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.

 

Commission on Prosecution Coordination.  The Commission reports this bill will have no expenditure impact because the agency will administer policies resulting from the bill with the use of existing staff and resources.

 

Commission on Indigent Defense.  The implementation of this bill will have no expenditure impact, as the Commission expects to manage any increase in caseloads within current resources.

 

State Law Enforcement Agency.  The expenditure impact of this bill on SLED is pending, contingent upon a response.

 

Office of the Attorney General.  The Attorney General currently investigates and prosecutes internet crimes against children.  The implementation of this bill will have no expenditure impact, as the agency expects to manage any increase in caseloads within current resources.

Department of Corrections.  The South Carolina Department of Corrections (SCDC) reports that while implementation of the bill may affect the terms of imprisonment for certain inmates, the resulting expenditure impact cannot be determined.  According to SCDC, in FY 2022-23, the annual total cost per inmate was $37,758 of which $34,570 was state funded.  SCDC expects to manage any expenditure impact due to this bill with existing General Fund appropriations.  If this bill results in a substantial increase in incarcerations, Corrections will request an increase in General Fund Appropriations.

 

State Revenue

This bill may increase General Fund revenue from fines, as well as Other Funds revenue, due to the increase in fines and fees for the new offenses brought in general sessions courts.  However, as the number of such offenses that might occur in a given year is unknown, the revenue impact is undetermined.

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

________

 

 

 

 

 

 

 

 

 

A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 16-15-375, RELATING TO DEFINITIONS APPLICABLE TO SECTIONS 16-15-385 THROUGH 16-15-425, SO AS TO DEFINE IDENTIFIABLE MINOR AND MORPHED IMAGE; BY AMENDING SECTION 16-15-395, RELATING TO FIRST DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE MORPHED IMAGES OF IDENTIFIABLE CHILDREN AS AN OFFENSE; BY AMENDING SECTION 16-15-405, RELATING TO SECOND DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE MORPHED IMAGES OF IDENTIFIABLE CHILDREN AS AN OFFENSE; BY AMENDING SECTION 16-15-410, RELATING TO THIRD DEGREE SEXUAL EXPLOITATION OF A MINOR, SO AS TO INCLUDE MORPHED IMAGES OF IDENTIFIABLE CHILDREN AS AN OFFENSE; AND BY AMENDING SECTION 23-3-430, RELATING TO THE SEX OFFENDER REGISTRY, SO AS TO INCLUDE THOSE GUILTY OF CRIMINAL SEXUAL EXPLOITATION OF A MINOR IN THE FIRST, SECOND, OR THIRD DEGREE AS A TIER II OFFENDER.

 

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

 

SECTION 1.  Section 16-15-375 of the S.C. Code is amended to read:

 

    Section 16-15-375. The following definitions apply to Section 16-15-385, disseminating or exhibiting to minors harmful material or performances;  Section 16-15-387, employing a person under the age of eighteen years to appear in a state of sexually explicit nudity in a public place;  Section 16-15-395, first degree sexual exploitation of a minor;  Section 16-15-405, second degree sexual exploitation of a minor;  Section 16-15-410, third degree sexual exploitation of a minor;  Section 16-15-415, promoting prostitution of a minor;  and Section 16-15-425, participating in prostitution of a minor.

    (1) "Harmful to minors" means that quality of any material or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics:

       (a) the average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest of minors in sex;  and

       (b) the average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors;  and

       (c) to a reasonable person, the material or performance taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

    (2) "Material" means pictures, drawings, video recordings, films, digital electronic files, computer generated images or pictures, or other visual depictions or representations but not material consisting entirely of written words.

    (3) "Minor" means an individual who is less than eighteen years old.

    (4) "Prostitution" means engaging or offering to engage in sexual activity with or for another in exchange for anything of value.

    (5) "Sexual activity" includes any of the following acts or simulations thereof:

       (a) masturbation, whether done alone or with another human or animal;

       (b) vaginal, anal, or oral intercourse, whether done with another human or an animal;

       (c) touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female;

       (d) an act or condition that depicts bestiality, sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or the condition of being fettered, bound, or otherwise physically restrained on the part of the one so clothed;

       (e) excretory functions;

       (f) the insertion of any part of a person's body, other than the male sexual organ, or of any object into another person's anus or vagina, except when done as part of a recognized medical procedure.

    (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.

    (7) "Identifiable minor"

       (a) means a person who:

           (1) was a minor at the time the image was created, adapted, or modified, or whose image as a minor was used in the creating, adapting, or modifying of the image; and

           (2) is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

       (b) shall not be construed to require proof of the actual identity of the identifiable minor.

    (8) "Morphed image" means any visual depiction or representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where such visual depiction or representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct or sexually explicit activity or appearing in a state of sexually explicit nudity.

 

SECTION 2.  Section 16-15-395(A)(4) of the S.C. Code is amended to read:

 

    (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:

 

       (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 or a morphed image of an identifiable minor engaged in sexual activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

 

SECTION 3.  Section 16-15-405(A) of the S.C. Code is amended to read:

 

    (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 or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;  or

       (2) distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

 

SECTION 4.  Section 16-15-410(A) of the S.C. Code is amended to read:

 

    (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 or a morphed image of an identifiable minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.

 

SECTION 5.  Section 23-3-430(C)(2) of the S.C. Code is amended to read:

 

    (C)(2) For purposes of this article, a person who has been convicted of, or pled guilty or nolo contendere to any of the following offenses shall be referred to as a Tier II offender:

           (a) criminal sexual conduct in the second degree (Section 16-3-653);

           (b) engaging a child for sexual performance (Section 16-3-810);

           (c) producing, directing, or promoting sexual performance by a child (Section 16-3-820);

           (d) trafficking in persons (Section 16-3-2020) except when the court makes a finding on the record that the offense did not include a criminal sexual offense or an attempted criminal sexual offense;

           (e) criminal sexual conduct with minors, second degree (Section 16-3-655(B)).  If evidence is presented at the criminal proceeding, or in any court of competent jurisdiction, 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(B)(2), 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;

           (f) criminal sexual conduct with minors, third degree (Section 16-3-655(C)).  If evidence is presented at the criminal proceeding, or in any court of competent jurisdiction, 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(B)(2), 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;

           (g) 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);  or

           (h) violations of Article 3, Chapter 15, Title 16 involving a minor.;

           (i) criminal sexual exploitation of a minor, first degree (Section 16-15-395);

           (j) criminal sexual exploitation of a minor, second degree (Section 16-15-405); or

           (k) criminal sexual exploitation of a minor, third degree (Section 16-15-410).

 

SECTION 6.  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 7.  This act takes effect upon approval by the Governor.

----XX----