(A221, R249, H4075)
AN ACT TO AMEND SECTION 23-3-430, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SEX OFFENDER REGISTRY, SO AS TO DELETE THE TERM "ADJUDICATED DELINQUENT", TO MAKE TECHNICAL CHANGES, TO PROVIDE PERSONS CONVICTED OF CERTAIN OFFENSES WOULD BE REFERRED TO AS EITHER TIER I, TIER II, OR TIER III OFFENDERS; BY ADDING SECTION 23-23-436 SO AS TO REQUIRE CERTAIN PERSONS ADJUDICATED DELINQUENT FOR A TIER III OFFENSE TO REGISTER AS SEX OFFENDERS; TO AMEND SECTION 23-3-460, RELATING TO BIANNUAL LIFETIME REGISTRATION FOR SEX OFFENDERS, SO AS TO PROVIDE OFFENDERS CAN BE REMOVED FROM THE SEX OFFENDER REGISTRY UNDER CERTAIN CIRCUMSTANCES, AND TO REQUIRE SEX OFFENDERS REGISTER WITHIN THREE DAYS OF BEGINNING EMPLOYMENT AT A SCHOOL; BY ADDING SECTIONS 23-3-462 AND 23-3-463 SO AS TO PROVIDE FOR THE TERMINATION OF THE REGISTRATION REQUIREMENTS FOR SEX OFFENDERS WHO HAVE SUCCESSFULLY COMPLETED CERTAIN REQUIREMENTS OR UPON COURT ORDER; TO AMEND SECTION 23-3-490, RELATING TO PUBLIC INSPECTION OF THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE INFORMATION CONTAINED IN THE REGISTRY MAY BE MADE AVAILABLE BY ELECTRONIC MEANS AND TO ELIMINATE CERTAIN RESTRICTIONS PLACED ON THE RELEASE OF THIS INFORMATION, AND TO PROVIDE FOR THE RELEASE OF INFORMATION FOR PERSONS ADJUDICATED DELINQUENT FOR COMMITTING TIER III OFFENSES; BY ADDING SECTION 23-3-538 SO AS TO PROVIDE CERTAIN TERMS AND THEIR DEFINITIONS, TO PROVIDE LAW ENFORCEMENT AGENCIES THAT DETERMINE SEX OFFENDERS ARE IN VIOLATION OF THIS SECTION MUST NOTIFY THE SEX OFFENDERS OF THE VIOLATION, AND TO PROVIDE PENALTIES FOR CERTAIN SEX OFFENDERS WHO CONTINUE TO ENGAGE IN CERTAIN ACTIVITIES AFTER RECEIVING NOTICE; TO PROVIDE THAT THIS ACT IS RETROACTIVE AND APPLIES TO CERTAIN RESIDENTS WHO CURRENTLY ARE REQUIRED TO REGISTER AS SEX OFFENDERS; AND BY ADDING SECTION 23-3-437 SO AS TO PROVIDE FOR REMOVAL FROM THE SEX OFFENDER REGISTRY FOR CERTAIN JUVENILES UNDER CERTAIN CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
Sex offender registry
SECTION 1. Section 23-3-430 of the 1976 Code is amended to read:
"Section 23-3-430. (A) Any person, regardless of age, residing in the State of South Carolina who in this State has been convicted of, pled guilty or nolo contendere to an offense described below, or who has been convicted, pled guilty or nolo contendere, or found not guilty by reason of insanity in any comparable court in the United States, or a foreign country, or who has been convicted, pled guilty or nolo contendere, or found not guilty by reason of insanity in the United States federal courts of a similar offense, or who has been convicted of, pled guilty or nolo contendere, or found not guilty by reason of insanity to an offense for which the person was required to register in the state where the conviction or plea occurred, shall be required to register pursuant to the provisions of this article. A person who has been found not guilty by reason of insanity shall not be required to register pursuant to the provisions of this article unless and until the person is declared to no longer be insane or is ordered to register by the trial judge. A person who has been convicted, pled guilty or nolo contendere, or found not guilty by reason of insanity in any court in a foreign country may raise as a defense to a prosecution for failure to register that the offense in the foreign country was not equivalent to any offense in this State for which he would be required to register and may raise as a defense that the conviction, plea, or finding in the foreign country was based on a proceeding or trial in which the person was not afforded the due process of law as guaranteed by the Constitution of the United States and this State.
(B) For purposes of this article, a person who remains in this State for a total of thirty days during a twelve-month period is a resident of this State.
(C)(1) 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 I offender:
(a) criminal sexual conduct in the third degree (Section 16-3-654);
(b) kidnapping (Section 16-3-910) of a person eighteen years of age or older 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;
(c) incest (Section 16-15-20);
(d) buggery (Section 16-15-120);
(e) peeping, voyeurism, or aggravated voyeurism (Section 16-17-470);
(f) a person, regardless of age, who has been convicted or pled guilty or nolo contendere in this State, or who has been convicted or pled guilty or nolo contendere in a comparable court in the United States, or who has been convicted or pled guilty or nolo contendere in the United States federal courts of indecent exposure or of a similar offense in other jurisdictions is required to register pursuant to the provisions of this article if the court makes a specific finding on the record that, based on the circumstances of the case, the convicted person should register as a sex offender;
(g) sexual intercourse with a patient or trainee (Section 44-23-1150);
(h) administering, distributing, dispensing, delivering, or aiding, abetting, attempting, or conspiring to administer, distribute, dispense, or deliver a controlled substance or gamma hydroxy butyrate to an individual with the intent to commit a crime listed in Section 44-53-370(f), except petit larceny or grand larceny;
(i) any other offense as described in Section 23-3-430(D); or
(j) any other offense required by Title I of the federal Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), the Sex Offender Registration and Notification Act (SORNA).
(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.
(3) 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 III offender:
(a) criminal sexual conduct in the first degree (Section 16-3-652);
(b) criminal sexual conduct with minors, first degree (Section 16-3-655(A));
(c) criminal sexual conduct: assaults with intent to commit (Section 16-3-656);
(d) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(e) criminal sexual conduct when the victim is a spouse (Section 16-3-658);
(f) sexual battery of a spouse (Section 16-3-615); or
(g) any offense listed or described in this section committed after the offender becomes a Tier I or Tier II offender.
(D) Upon conviction, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the prosecution.
(E) SLED shall remove a person's name and any other information concerning that person from the sex offender registry immediately upon notification by the Attorney General that the person's adjudication, conviction, guilty plea, or plea of nolo contendere for an offense listed in subsection (C) was reversed, overturned, or vacated on appeal and a final judgment has been rendered.
(F) If an offender receives a pardon for the offense for which he was required to register, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:
(1) as provided by the provisions of subsection (E); or
(2) if the pardon is based on a finding of not guilty specifically stated in the pardon.
(G) If an offender files a petition for a writ of habeas corpus or a motion for a new trial pursuant to Rule 29(b), South Carolina Rules of Criminal Procedure, based on newly discovered evidence, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:
(1) as provided by the provisions of subsection (E); or
(2)(a) if the circuit court grants the offender's petition or motion and orders a new trial; and
(b) a verdict of acquittal is returned at the new trial or entered with the state's consent."
Registration
SECTION 2. Article 7, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-436. (A) A child who is fourteen years of age or older and who has been adjudicated delinquent by a family court in this State for any Tier III offense is required to register in accordance with this article.
(B) A child who is fourteen years of age or older and has been adjudicated delinquent of any other offense listed in Section 23-3-430(C) may be required, in the discretion of the family court, to register in accordance with this article. In making this determination, the court shall consider:
(1) the likelihood the juvenile will reoffend, based on a psychosexual risk assessment and evaluation by a licensed clinical psychologist or licensed psychiatrist employed by the Department of Juvenile Justice. The Circuit Solicitor's Office, Attorney General's Office, or the juvenile also may have an independent psychosexual risk assessment evaluation by a licensed psychologist or psychiatrist;
(2) the age of the juvenile at the time of the offense and adjudication;
(3) mitigating factors;
(4) aggravating factors including, but not limited to, age of victim, use of force, or use of weapons;
(5) prior adjudications; and
(6) other factors the court considers relevant.
(C) A child twelve years of age but less than fourteen years of age who has been adjudicated delinquent by a family court in this State for any Tier III offense may be required to register in the discretion of the Family Court.
(1) In making the determination, the court must consider:
(a) the likelihood the person will reoffend, based on a psychosexual risk assessment and evaluation by a licensed clinical psychologist or licensed psychiatrist as ordered by the court. The Circuit Solicitor's Office, Attorney General's Office, or the juvenile also may have an independent psychosexual risk assessment evaluation by a licensed psychologist or psychiatrist;
(b) the age of the juvenile at the time of the offense and adjudication;
(c) mitigating factors;
(d) aggravating factors including, but not limited to, age of victim, use of force, or use of weapons;
(e) prior adjudications; and
(f) other factors the court considers relevant.
(D) A resident child who is adjudicated delinquent in any other state is required to register in this State subject to the requirements of the sentencing jurisdiction including duration of registration."
Biannual registration
SECTION 3. Section 23-3-460(A) and (C) of the 1976 Code are amended to read:
"(A) A person required to register pursuant to this article is required to register biannually for life subject to the provisions of Section 23-3-462 and Section 23-3-463. For purposes of this article, 'biannually' means each year during the month of his birthday and again during the sixth month following his birth month. The person required to register shall register and must reregister at the sheriff's department in each county where he resides, owns real property, is employed, or attends any public or private school including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school. A person determined by a court to be a sexually violent predator pursuant to state law is required to verify registration and be photographed every ninety days by the sheriff's department in the county in which he resides unless the person is committed to the custody of the State, and verification will be held in abeyance until his release.
(C) If a person required to register pursuant to this article changes his address within the same county, that person must send written notice of the change of address to the sheriff within three business days of establishing the new residence. If a person required to register under this article owns or acquires real property or is employed within a county in this State, or attends, is enrolled, volunteers, interns, or carries on a vocation at any public or private school including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school, he must register with the sheriff in each county where the real property, employment, or the public or private school is located within three business days of acquiring the real property, beginning employment at any school, or attending the public or private school."
Termination of registration requirements
SECTION 4. Article 7, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-462. (A) After successful completion of the requirements of this section, an offender may apply to the South Carolina Law Enforcement Division for the termination of the requirements of registration pursuant to this article. If it is determined that the offender has met the requirements of this section, SLED shall remove the offender's name and identifying information from the sex offender registry and shall notify the offender within one hundred twenty days that the offender has been relieved of the registration requirements of this article.
(1) An offender may file a request for termination of the requirement of registration with SLED, in a form and process established by the agency:
(a) after having been registered for at least fifteen years if the offender was required to register based on an adjudication of delinquency or the offender was required to register as a Tier I offender;
(b) after having been registered for at least twenty-five years, if the offender was convicted as an adult, and was required to register as a Tier II offender;
(c) an offender who was required to register as an offender because of a conviction in another state or because of a federal conviction may apply to be removed from the requirements of the registry if he is eligible to be removed under the laws of the jurisd