A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 16-15-390 SO AS TO CREATE THE OFFENSE OF OBSCENE VISUAL REPRESENTATIONS OF CHILD SEXUAL ABUSE, DEFINE TERMS, AND ESTABLISH PENALTIES; AND BY AMENDING SECTION 23-3-430, RELATING TO THE SEX OFFENDER REGISTRY, SO AS TO ADD THE OFFENSE OF OBSCENE VISUAL REPRESENTATIONS OF CHILD SEXUAL ABUSE TO THE SEX OFFENDER REGISTRY.

 

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 16-15-390. As used in this section:

       (1) "Obscene" has the same meaning as Section 16-15-305.

       (2) "Visual depiction or representation" means and includes undeveloped film and videotape, and data stored on a computer disk or by electronic means that is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means.

    (B) Any person who knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction or representation of any kind, including a drawing, cartoon, sculpture, or painting that depicts a minor engaging in sexually explicit conduct, sexually explicit activity, or sexually explicit nudity, and is obscene, or attempts or conspires to do so, is guilty of a felony and, upon conviction, must be imprisoned not less than two years nor more than ten 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.

    (C) Any person who knowingly possesses a visual depiction or representation of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct, sexually explicit activity, or sexually explicit nudity, and is obscene, or attempts or conspires to do so is guilty of a felony and, upon conviction, must be imprisoned no more than ten years.

    (D) It is not a required element of any offense under this section that the minor depicted actually exists.

 

SECTION 2.  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.; or

           (i) obscene visual representations of child sexual abuse (Section 16-15-390).

 

SECTION 3.  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 4.  This act takes effect upon approval by the Governor.

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