Indicates Matter Stricken

Indicates New Matter

Amended

February 29, 2024

S. 996

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

S. Printed 02/29/24--S.

Read the first time January 25, 2024

________

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.

    Amend Title To Conform

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. (A) 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) 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 section or for any offense for which a person may be included in the sex offender registry. The family court may order behavioral 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.

SECTION 2.  Section 23-3-430(C)(1) and (2) of the S.C. Code is amended to read:

    (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).; or

           (k) obscene visual representation of a child sexual abuse (Section 16-15-390). If the person is under eighteen years of age and was adjudicated in the family court, the adjudicated minor is not an offender and is not required to register pursuant to the provisions of this article.

       (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);