Indicates Matter Stricken

Indicates New Matter

 

Committee Report

February 21, 2024

 

S. 996

 

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

 

S. Printed 02/21/24--S.                                                                          [SEC 2/23/2024 2:17 PM]

Read the first time January 25, 2024

 

________

 

The committee on Senate Judiciary

To whom was referred a Bill (S. 996) 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, 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 1, by striking the first undesignated paragraph in Section 16-15-390 and inserting:

    Section 16-15-390. (A) As used in this section:

Amend the bill further, SECTION 1, by striking Section 16-15-390(D) and inserting:

 

    (D) The offense is a misdemeanor to be heard by the family court if the person charged under this section is a minor, and the minor has no prior adjudication under this statute or for any offense for which a person may be included in the sex offender registry. The family court may order behavior health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.

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

    (F) 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. An 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.

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

           (i) obscene visual representations of child sexual abuse (Section 16-15-390), provided the adjudicated minor is under eighteen years of age, 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 creates within provisions for offenses against morality and decency the definitions of obscene and visual depiction or representation.  It also creates the felony offense of knowingly producing, distributing, receiving, or possessing with intent to distribute-or attempting or conspiring to produce, distribute, receive, or possess with intent to distribute-an obscene visual depiction or representation showing a minor engaging in sexually explicit conduct, activity, or nudity.  This offense is punishable by a term of imprisonment for not less than two years nor more than ten years.  No part of the minimum sentence may be suspended nor parole granted until the minimum sentence has been served.  The bill also creates the felony offense of knowingly possessing-or attempting or conspiring to do so-an obscene visual depiction or representation showing a minor engaging in sexually explicit conduct, activity, or nudity.  This offense is punishable by a term of imprisonment for not more than ten years.  The bill does not require that any minor depicted actually exists.  This bill also provides that persons who have been convicted of, or have pled guilty or nolo contendere to these offenses must be added to the sex offender registry as Tier II offenders.

 

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 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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