Legislative Updates

This new law is a combination of three bills (S. 1267- (Hawkins/Knotts/Bryant) Signed by the Governor June 8, 2006 / S.1138 & H.4456) and makes comprehensive revisions relating to Sex Offenders & Crime Victim Notification. S.1138 is the controlling bill for the bulk of the new law, as it was signed by the Governor, second to S.1267, on June 9, 2006.Relating to punishment for murder this law adds to the list of aggravating circumstances to the death penalty that a murder was committed by a person deemed a sexually violent predator. With regards to criminal sexual conduct with a minor in the first degree Section 16-3-655(A) when the actor engages in sexual battery with a victim who is less than eleven years of age, the law provides for a mandatory minimum sentence of twenty-five years , no part of which may be suspended or probation granted, or imprisonment for life. Imprisonment for life means imprisonment until death.

With regards to criminal sexual conduct with a minor in the first degree Section 16-3-655(A)(2) (less than 16 years of age) for the second or subsequent offense, the law provides that, upon conviction, a person must be imprisoned for not less than 10 years nor more than thirty years according to the discretion of the court. A person convicted of Section 16-3-655 (B) (victim is 14 or less but at least 11) criminal sexual conduct in the second degree, must be imprisoned for not more than twenty years in the discretion of the court.Persons convicted or adjudicated delinquent to either criminal sexual conduct with a minor or lewd act on a minor must be placed on active electronic monitoring under the authority of Probation, Parole and Pardon Services."Active Electronic Monitoring Device” is defined as Inclusionary and Exclusionary . Persons convicted or adjudicated delinquent for the other enumerated offenses may be placed on an active electronic monitoring system under the authority of Probation, Parole and Pardon Services.When an inmate is released on electronic monitoring, both the Sheriff and victim(s) must be notified. Such monitoring is for the duration of the time the person is required to remain on the sex offender registry. Such monitoring is to be paid by the offender. Tampering, etc. is punishable by a fine not more than $5,000 or imprisoned for not more than 5 years.

The law allows prosecutors to seek the death penalty in cases where a person has a prior conviction for criminal sexual conduct with a minor in the first degree or for a similar federal or out-of-state offense. The law outlines statutory aggravating circumstances and mitigating circumstances for the imposition of the death penalty under this section.

The new law requires sex offenders to register bi-annually for life. Current law requires the State Law Enforcement Division to develop and maintain a protocol manual used in the administration of the sex-offender registry. The new law outlines certain factors that must be included in the manual. The law requires active electronic monitoring of certain sex offenders. The law also outlines provisions whereby certain offenders, after ten years, may petition to be removed from electronic monitoring. Victims must be notified of and allowed input at the hearings.The law creates a felony offense of 5 years / $5,000 for assisting or harboring an unregistered sex offender. The law creates a new statute: Section 23-3-545. The willful violation of electronic monitoring may result in other terms and conditions to such monitoring or may result in revoking the electronic monitoring and imposing a new sentence of incarceration of up to ten years. Such a sentence would deem the offender ineligible for parole. The offender would be placed back on electronic monitoring upon release.The law, Section 17-23-175, provides for the admission of out-of-court statements made to a third party by a child victim or child witness in general sessions court under certain circumstances. Statements visually and auditorily recorded will always be given preference. Special thanks to Senator Brad Hutto of Orangeburg for attaching this important piece of legislation which he has faithfully introduced for 4 years, to this Bill on the Senate Floor. SC Children of Sexual Abuse owe the senator a debt of gratitude. The new law contains language called the “Romeo” clause that prohibits a person eighteen years of age or less from being convicted of criminal sexual conduct with a minor in the second degree if he engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age. Such a person may not be placed on electronic monitoring.Language was added in Section 17-25-45 (F) that clarifies State V. Gordon, 356 S.C. 143 (2003) in determining strikes before life without parole can be imposed.

STATUS: S. 1138 (Senate Judiciary Bill)The Governor signed the Bill into law and becomes effective June 9, 2006

Special thanks to Senator Jake Knotts of Lexington for both introducing and “ramrodding” these pieces into comprehensive protections for child victims of sexual abuse!

“I told my daughter that there is a man by the name of Senator Jake Knotts who put children first on the agenda and won. He basically shut the session down to stand up for you (children). He stood up for you….. You, the most precious gift on earth…. You do matter…. You are valuable…. You did not deserve what happened to you… You did not cause it… You are not to blame…… ACTIONS SPEAK LOUDER THAN WORDS! Senator Knotts you acted for the most defenseless of us, our children. You are putting the blame where it belongs, on the offender. Finally someone wants to make them pay. When the state does not punish the offender the state punishes the children, the victims.” Words from the mother of a child victim

As passed by the House, the bill establishes the South Carolina Crimestoppers Council as a nonprofit organization and outlines the duties of the council, which among other things, includes encouraging, advising and assisting in the creation of Crimestoppers organizations. A court may order a defendant to repay to a Crimestoppers organization or to the Crimestoppers council a reward issued by either entity. The bill outlines certain factors to be considered when determining whether the defendant must repay the award or part of the reward. The bill provides for the reimbursement of monies paid by a Crimestoppers organization or the Crimestoppers council for information that results in the arrest of an individual where monies are confiscated and forfeited pursuant to an arrest. The bill also provides for the maintenance and disbursement of funds reimbursed. The bill includes provisions for the admissibility of certain evidence, protected information, and protected identities in a court proceeding. The bill provides immunity from civil liability for certain persons who communicate with, act on privileged communication, or are officers or employees of a Crimestoppers organization or the Crimestoppers council. A public body may not disclose a privileged communication, protected information, or a protected identity except under certain conditions. It is a misdemeanor for a person who is a member or employee of the council, a Crimestoppers organization or a law enforcement agency to divulge certain privileged communications. However, if the offense is committed with the intent to obtain monetary gain or some other benefit, then the offense is a felony punishable by not more than five years.

Following is added language (both of these pieces where originally in S. 1138) clarifying crime victim notification:

Section 16-3-1525(N) of the 1976 Code, as added by ACT 106 of 2005, is amended to read:

"(N)(1) Notification of a victim pursuant to the provisions of this section may ~~not~~ be ~~only~~ by electronic or other automated communication or recording. However, after three unsuccessful attempts to reach the victim ~~by electronic or other automated communication or recording pursuant to the provisions of this section,~~ in cases involving criminal domestic violence, criminal sexual conduct, and stalking and harassment, and those cases when physical injury has occurred as a result of a physical or sexual assault and in cases where a pattern of conduct exists by the offender or suspected offender that would cause a reasonable person to believe he may be at risk of physical assault the appropriate agency or diversion program shall attempt to make personal contact with the victim, or the victim's guardian, upon the judicial or administrative release or the escape of the offender.

(2) For purposes of this section, 'pattern' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose."

"Section 16-3-1230. (1) A claim may be filed by a person eligible to receive an award, as provided in Section 16-3-1210, or, if the person is an incompetent or a minor, by his parent or legal guardian or other individual authorized to administer his affairs.

(2) A claim must be filed by the claimant not later than one hundred eighty days after the latest of the following ~~three~~ events:

(d) the manifestation of a mental or physical injury is diagnosed as a result of a crime committed against a minor.

(3) Upon good cause shown, the time for filing may be extended for a period not to exceed four years after the occurrence, diagnosed manifestation, or death. 'Good cause' for the above purposes includes reliance upon advice of an official victim assistance specialist who either misinformed or neglected to inform a victim of rights and benefits of the Victim's Compensation Fund but does not mean simply ignorance of the law.

~~(3)~~(4) Claims must be filed in the office of the deputy director by mail or in person. The deputy director shall accept for filing all claims submitted by persons eligible ~~under~~ pursuant to subsection (1) ~~of this section~~ and meeting the requirements as to the form of the claim contained in the regulations of the board."

STATUS: H.4456 (Harrison/Haley) passed the House on April 26. The bill was amended and received second reading in the Senate on May 25. The Senate amended the bill as it relates to the admission of privileged communications, protected information and protected identities in civil and criminal proceedings. The House concurred with Senate amendments & added language concerning the notification of crime victims and exceptions to the time limitations for victims to seek compensation under SOVA law(see above). Special thanks to both Rep. Murrell Smith and Senator Glenn McConnell for the last minute save!

The Bill was ratified (R.419) on June 7. Became law withour the signature of the Governor on June 14, 2006.

The legislation provides that a person who knowingly subjects another person to forced labor or services, or recruits, entices, harbors, transports, provides, or obtains by any means another person knowing that the person will be subjected to forced labor or services, or aids, abets, attempts, or conspires to do any of the above acts is guilty of a felony known as trafficking in persons for forced labor or services and, upon conviction, must be imprisoned for not more than fifteen years. The term 'forced labor or services' means any type of labor or services performed or provided by a person rendered through another person's exertion of physical, financial, or other means of control over the person providing the labor or services. These provisions do not apply to labor or services performed or provided by a person in the custody of the Department of Corrections or a local jail, detention center, or correctional facility.

STATUS: Having been approved by the General Assembly, H.3060 (Ceips) (Act 266) was signed by the Governor on May 2. Special Thanks to Representative Catherine Ceips of Beaufort who almost single-handedly pushed this necessary legislation through both Houses!

This bill provides that a person who commits a violent crime that causes the death of, or injury to, an unborn child is guilty of a separate offense and that the person must be punished as if the death or injury occurred to the unborn child's mother. The term 'unborn child' means a child in utero, and the term 'child in utero' or 'child who is in utero' means a member of the species homo sapiens, at any state of development, who is carried in the womb. Prosecution of an offense under this section does not require proof that: (1) the person committing the violent offense had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or (2) the defendant intended to cause the death of, or bodily injury to, the unborn child. The bill further provides that the person must be punished for murder or attempted murder if the person intentionally killed or attempted to kill the unborn child. The bill prohibits imposing the death penalty for an offense prosecuted pursuant to this section. The bill also prohibits the prosecution of a person for conduct related to an abortion if proper consent was obtained and to medical treatment of a pregnant woman and of a woman with respect to her unborn child.

STATUS: S.1084 (McConnell/Ritchie/Bryant) passed the Senate on March 2. The bill passed the House… Signed by the Governor and effective June 2, 2006.

This bill establishes a Vulnerable Adults Investigation Unit (VAIU) within the State Law Enforcement Division (SLED), which must receive and coordinate the referral of all reports of alleged abuse, neglect, or exploitation of vulnerable adults in Department of Mental Health or Disabilities and Department of Disabilities and Special Needs facilities. VAIU must refer non-criminal reports of abuse and neglect occurring in facilities to the Long Term Care Ombudsman Program (LTCOP), which is administered by the Lieutenant Governor’s Office, and of abuse and neglect in all settings other than those covered by LTCOP to the Adult Protective Services Program within the Department of Social Services. Neither SLED nor LTCOP may delegate their investigative responsibility to the facilities or to the entities charged with operating the facilities.

The bill requires medical, educational, or law enforcement officials to report if they have reason to believe that a vulnerable adult has been or is likely to be abused, neglected, or exploited. Any person may report if they have reason to believe a vulnerable adult has been or is likely to be abused, neglected, or exploited. Persons required to report must do so within twenty-four hours or on the next working day. The report must be made to the VAIU for Department of Mental Health or Department of Disabilities and Special Needs facilities; the LTCOP for other facilities; and the Adult Protective Services Program within the Department of Social Services for incidents in other settings.

If a person is required to report and they have reasonable suspicion that a vulnerable adult died as a result of abuse or neglect must report the death to the coroner or medical examiner, who in turn must report their findings to the VAIU for investigation. However, all vulnerable adult deaths in Department of Mental Health or Department of Disabilities and Special Needs facilities must be referred to the VAIU. Once a report is received by an entity, it must review the report within two days and report cases indicating reasonable suspicion of criminal conduct to the VAIU within one day of completing the review.

Notice of the duty to report and contact information must be displayed in health care facilities or facilities operated by the Department of Mental Health or Department of Disabilities and Special Needs.

The VAIU must investigate vulnerable adult deaths. Medical care providers and other agencies must provide the VAIU with information necessary to its mission, and it has subpoena power through the clerks of court.

The bill also creates the Vulnerable Adults Fatalities Review Committee which consists of certain agency heads plus various other persons appointed by the Governor. The purpose of the review committee is to develop understanding of vulnerable adult deaths and make plans for changes to prevent future deaths. Meetings of the review committee are open under the Freedom of Information Act if the entity is not discussing individual cases or particularized information. Additionally, information obtained by the review committee is confidential under the Freedom of Information Act except for statistical compilations and non-identifying reports.

A coroner or medical examiner must notify the VAIU within twenty-four hours of the death of a vulnerable adult as a result of violence when unattended by a physician and in any suspicious or unusual manner or when the death is unexpected or unexplained. The bill also permits the coroner or medical examiner to obtain an inspection warrant from a magistrate if there is probable cause to believe that events in the home or premises may have contributed to the death of the vulnerable adult.

The Attorney General may bring an action against entities with a pattern or practice of failing to exercise care in hiring, training, or supervising facility personnel or in staffing or operating a facility and the failure results in abuse, neglect, death, or any other crime against a vulnerable adult.

STATUS: Having been approved by the General Assembly, S.1116 (McConnell/Lourie /Ford) (R301) was signed by the Governor and became effective on May 23, 2006.

Special thanks to the Adult Protection Coordinating Council, chaired by William Gambrell of the Attorney General’s Office & the Council’s sub-committee chaired by William Bilton, of the Commission on Prosecution Coordination, that recommended the above legislation! Also, thanks to the House Ways & Means & Senate Finance for funding this much needed law.

A hearty “thank you” to Representative Jim Harrison of Richland County for shepherding this Senate Bill through the House with such success!

This bill started out as a comprehensive piece of legislation to combine the Adult Parole Board with the Juvenile Parole Board, but was whittled down to give the head of the Department of Juvenile Justice releasing authority over those juveniles “adjudicated delinquent and committed for an indeterminate period for a status offense or a misdemeanor and for juveniles who have violated probation for a status offense or a misdemeanor;” The new law also gives duties of compensation for the above defined offenders to DJJ as a releasing entity: “Section 20-7-6910.

There is created a fund within the Department of Juvenile Justice for the compensation of victims of crime. All contributions deducted from a juvenile's wages pursuant to Section 20-7-6890(E)(3) or 20-7-6895(C)(3) must be deposited into this fund. Of the amount contributed to the fund by each juvenile, ninety-five percent must be paid by the department on behalf of the juvenile as restitution to the victim or victims of the juvenile's adjudicated crime as ordered by the family court or the ~~Juvenile Parole Board~~ releasing entity, and five percent must be submitted to the South Carolina Victim's Compensation Fund. If the amount of restitution ordered has been paid in full or if there is no victim of the juvenile's adjudicated crime, the juvenile's contributions must be submitted to the South Carolina Victim's Compensation Fund." (Underlined portions are new law) DJJ, as a new releasing entity follow existing notification guidelines for victims and the department must develop written guidelines for release.

STATUS: Having been approved by the General Assembly, S.601 (Fair/Knotts/Thomas) was Signed by the Governor June 1, 2006…becoming effective April 1, 2007 .Special thanks to Senator Fair from Greenville and Staffer David Jordan for all their hard work on this law!

The House and the Senate approved H.3977, a bill which establishes an eleven-member Law Enforcement Training Council. The bill transfers to this council all functions, duties, responsibilities, accounts, and authority statutorily exercised by the South Carolina Criminal Justice Academy Division of the Department of Public Safety. It is the stated intent of the bill to maximize training opportunities for law enforcement officers and criminal justice personnel, to coordinate training, and to set standards for the law enforcement and criminal justice service.

STATUS: H.3977 (Thompson/Simrill/Sandifer) was approved by the House and Senate. The bill was vetoed by the Governor on May 24, and that veto was overridden by both the House and the Senate on May 30, thus becoming law.

This legislation was introduced in response to the requests from Victim Advocates to establish permanent entities to study and review CDV issues. The purpose of the councils is to:

1) Increase the awareness and understanding of domestic violence and its consequences;

(1) Promoting effective strategies of intervention for identifying the existence of domestic violence and for intervention by public and private agencies;

(2) Establishing interdisciplinary and interagency protocols for intervention with survivors of domestic violence;

(3) Facilitating communication and cooperation among agencies and organizations that are responsible for addressing domestic violence;

(4) Monitoring, evaluating, and improving the quality and effectiveness of domestic violence services and protections in the community;

(D) Membership on a domestic violence coordinating council may include, but is not limited to, representatives from magistrates court, family court, law enforcement, solicitor's office, probation and parole, batterer intervention programs or services, nonprofit battered women's program advocates, counseling services for children, legal services, victim assistance programs, the medical profession, substance abuse counseling programs, the clergy, survivors of domestic violence, local department of social services, and the education community. Members on the council shall develop memoranda of agreement among and between themselves to ensure clarity of roles and responsibilities in providing services to victims of domestic violence.

(E) Each coordinating council is responsible for generating revenue for its operation and administration."

AN ACT TO AMEND SECTION 43-1-260, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO COMMUNITY DOMESTIC VIOLENCE COORDINATING COUNCILS AND THEIR PURPOSE, MEMBERSHIP, AND DUTIES, SO AS TO PROVIDE THAT THE CIRCUIT SOLICITOR, RATHER THAN THE DEPARTMENT OF SOCIAL SERVICES, SHALL FACILITATE THE DEVELOPMENT OF THESE COUNCILS IN EACH COUNTY OR JUDICIAL CIRCUIT, TO ADD A REPRESENTATIVE OF THE DEPARTMENT OF SOCIAL SERVICES TO THE RECOMMENDED PARTICIPANTS ON THE COUNCILS, AND TO PROVIDE THAT MEMBERS ON SUCH COUNCILS SHALL ESTABLISH MEMORANDA OF AGREEMENT AMONG AND BETWEEN THESE MEMBERS; AND TO ADD SECTION 22-3-546 SO AS TO AUTHORIZE A CIRCUIT SOLICITOR, IN A CIRCUIT WITH FIVE OR MORE COUNTIES (only effects the 14^th Circuit), TO ESTABLISH AND DIRECT A PROGRAM TO PROSECUTE FIRST OFFENSE MISDEMEANOR CRIMINAL DOMESTIC VIOLENCE OFFENSES IN GENERAL SESSIONS COURT AND TO REQUIRE THE SOLICITOR TO REPORT THE RESULTS OF THE PROGRAM TO THE PROSECUTION COORDINATION COMMISSION.

H.4831- CDV Councils (Cobb-Hunter/Young/Simrill) Signed into law by the Governor on June 9, 2006 and becoming effective on that same date.

The stated intent of the legislation is to codify the common law castle doctrine, which recognizes that a person's home is his castle, and to extend the doctrine to include an occupied vehicle and the person's place of business. As passed by the House, this bill authorizes the lawful use of deadly force under certain circumstances against an intruder or attacker in a person's dwelling, residence, or occupied vehicle. The bill provides that there is no duty to retreat if the person is in a place where he has a right to be, including the person's place of business, and the use of deadly force is necessary to prevent death, great bodily injury, or the commission of a violent crime. A person who lawfully uses deadly force is immune from criminal prosecution and civil action and may not be arrested unless probable cause exists that the deadly force used was unlawful.

STATUS: H.4301 (GM Smith/Bailey/Harrison) received third reading in the House on February 9, 2006. The bill received second reading in the Senate on May 25, 2006. Among other things, the Senate version of the bill provides that a person who enters or attempts to enter a dwelling, residence, or occupied vehicle in violation of an order of protection, restraining order, or condition of bond is presumed to be doing so with the intent to commit and unlawful act regardless of whether the person is a resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder. Signed into law by the Governor June 9, 2006.

Currently, over the counter nasal decongestants featuring pseudoephedrine, which can be used in the illegal manufacture of methamphetamine, are readily obtainable from self-service shelves in retail stores.

Under this legislation, products whose sole active ingredient is ephedrine or pseudoephedrine may not be offered for retail sale by self-service, but only from behind a counter or other barrier so that such products are not directly accessible by the public but only by a retail store employee or agent. Such products may be offered for retail sale only if sold in blister packaging. No person may deliver in any single over the counter sale more than three packages of any product containing ephedrine or pseudoephedrine as the sole active ingredient or in combination with other active ingredients or any number of packages that contain a combined total of more than nine grams of ephedrine or pseudoephedrine base. Violations are misdemeanors and, upon conviction for a first offense an offender must be fined not more than five hundred dollars, and, upon conviction for a second or subsequent offense an offender must be imprisoned not more than six months and/or fined not more than one thousand dollars.

Persons delivering or selling products containing ephedrine or pseudoephedrine shall require the purchaser to produce a government issued photo identification showing the date of birth of the person and require the purchaser to sign a written or electronic log showing the date of the transaction, name of the person, the person's address, and the amount of the compound, mixture, or preparation. Retailers must retain the information for at least two years and make the log available for inspection within twenty-four hours of a request made by a local, state, or federal law enforcement officer. A retailer convicted of a violation of these log-keeping requirements is guilty of a misdemeanor and must be fined not more than one thousand dollars and not less than five hundred dollars. Upon conviction for a second offense, a retailer must be fined not more than five thousand dollars and not less than one thousand dollars. Upon conviction for a third or subsequent offense, a retailer must be fined not more than ten thousand dollars and not less than five thousand dollars.

The legislation provides that it is unlawful for a retailer to purchase any product containing ephedrine or pseudoephedrine from any person or entity other than a manufacturer or a wholesale distributor registered by the United States Drug Enforcement Administration. A person convicted of a first offense violation is guilty of a misdemeanor and must be imprisoned not more than one year and/or fined not more than one thousand dollars. A second or subsequent offense is a misdemeanor subject to not more than three years' imprisonment and/or a fine of not more than five thousand dollars.

The legislation provides that it is unlawful for any unauthorized person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute, any substance containing any amount of ephedrine, pseudoephedrine, or any of its salts, optical isomers, or salts of optical isomers which have been altered from their original condition so as to be powdered, liquefied, dissolved, solvated, or crushed. A person convicted of a violation is guilty of a felony and, upon conviction for a first offense must be imprisoned not more than five years and fined not more than five thousand dollars. The court, upon approval from the solicitor, may request as part of the sentence, that the offender enter and successfully complete a drug treatment program. For a second or subsequent offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not less than ten thousand dollars.

These restrictions do not apply to: (1) pediatric products labeled under federal regulation as primarily intended for administration to children under twelve years of age according to label instructions; and (2) products that the Board of Pharmacy, upon application of a manufacturer, exempts because the product is formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine or its variants.

The legislation establishes criminal penalties that respond to the particular dangers the illicit methamphetamine trade poses for children. The legislation provides that it is unlawful for an adult to illegally manufacture amphetamine, methamphetamine, or its variants in the presence of a minor child, or to knowingly permit a minor child to be in an environment where these substances are sold or where the paraphernalia and volatile, toxic chemicals used in their manufacture are stored. Upon conviction for a first offense, a violator must be imprisoned not more than five years and/or fined not more than five thousand dollars. Conviction for a second or subsequent offense carries a penalty of imprisonment for not more than ten years and/or a fine of not more than ten thousand dollars.

The legislation also provides that it is a felony offense for an unauthorized individual to dispose of waste from the production of methamphetamine. Upon conviction for a first offense, a violator must be imprisoned not more than five years and/or fined not more than five thousand dollars. A second or subsequent offense carries a penalty of imprisonment for not more than ten years and/or a fine of not more than ten thousand dollars. In addition, a violator is required to pay restitution for any emergency response or environmental cleanup costs.

Five years after enactment, the legislation establishes a study committee to review the implementation and application of the legislation and issue a report, including recommendations for legislative changes.

STATUS: Having been approved by the General Assembly, H.3591 (Brady/JE Smith/Harrison) (R286) became law without the Governor’s signature on May 4; the effective date of the legislation is November 14, 2006.