Shari Tolen, Administration Assistant 9-1-2023
Senator Mike Reichenbach
South Carolina General Assembly
Gressette Building
P.O. Box 142 S604
Columbia SC 29202
Office: 803-212-6016
Subject: AG opinion or proposed bill for statute 16-3-655
The ambiguities in statute 16-3-655 are listed below.
The most obvious is the "or is older than the victim" language that was added to the statute in 1978 by Act 639. The original statute enacted in 1977 by Act 157 did not have this clause. In 1977 the statute had three subsections which I will simplify below.
1977 Act 157 replaced statute 16-3-650
(1.) victim 0-11 years old and actor more than 3 years older, 1st deg. csc, 30 yr sentence.
(2.) victim 11-14 years old and actor more than 3 years older, 2nd deg. csc 20 yr. sentence.
(3.) victim 14-16 years old and actor in a position of authority to coerce the victim to submit, 2nd deg. csc 20 yr. sentence.
The AG's opinion must address Acts 157, 639 ,509, and 346 and verify the meaning of each subsection.
Questions:
1. In subsection 1, does it mean no charge when the victim is 0-11 and the actor is less than 3 years older than the victim? [I say yes.]
2. In subsection 2, does it mean no charge when the victim is 11-14 and the actor is less than 3 years older than the victim? [I say yes.]
3. In subsection 3, does it mean no charge when the victim is 14-16 and the actor is NOT in a position of authority to coerce the victim to submit? [I say yes.]
4. In subsection 3, does it mean the age of consent is 14 for actors simply older than the victim? [I say yes.]
5. In subsections 2 and 3 both are considered 2nd deg. csc and carry a 20 yr. sentence, do you suppose this is because in subsection 2 the victim is only 11-14 whereas in subsection 3. the victim is older, 14-16, but is coerced by an actor in a position of authority? [I say yes.]
1978 Act 639 amended 16-3-655 by adding "or is older than the victim" to the end of subsection 3.
6. Did this amendment raise the age of consent to 16 so that now any actor who is older than the victim between the ages of 14-16 can be prosecuted? [I say yes, but I believe it is illogical.]
7. Did this amendment allow prosecution of an actor who is less than 3 years older than a 14-16 year-old victim? [I say yes, but I believe it is illogical.]
1984 Act 509 amended 16-3-655 to remove the 3 years older clause.
8. Did this amendment remove all the exceptions for close in age minors? [I say yes, but I believe it is illogical].
2006 Act 346 added an exception to actors less than 18 when the victim is 14-16 and also provides a defense for mistake of age. Note: the mistake of age was removed in 2008 by Act 335.
9. Does this amendment allow prosecution of actors 18 or older when the victim is 14-16? [I say yes, but I believe it is illogical].
10. Does this amendment allow exceptions for actors in a position of authority to coerce the victim to submit when the victim is at least 14, but they thought the victim was 16? [I say yes, but I believe it is illogical].
11. Does the amendment allow exceptions when Juliet is 14 and Romeo is 17 years 11 months? [I say yes].
12. Does the amendment allow prosecution when Juliet is 15 years 11 months and Romeo is 19 years 10 months? [I say yes, but I believe it is illogical].
13. Does the amendment now consider Romeo who is now "older than the victim" to be punished the same as a person "in a position of familial, custodial, or official authority to coerce the victim to submit"? [I say yes, but I believe it is illogical].
To address the statute as it is today, the absurdities exist mainly due to the prosecution of Romeo 23 months later when he and Juliet are both older and more mature.
The "or is older than the victim" clause should be removed from the statute, which will put it back as it was in 1977 when it was designed to only prosecute actors in a position of authority who coerce the victims to submit.
A separate subsection should be written for actors who are simply older than victims 14-16 with less severe punishment.
There should be a separate subsection for the Romeo exception stating a certain number of years older than the victim.
The language in the Romeo clause should be gender neutral instead of the pronoun "he."
As to how to shorten the requested Opinion, I really don't know because this is such a confusing mess. I will do whatever you suggest getting an opinion. If you are going to propose a bill, I have some suggestions. Do you think an opinion is better or a bill or both?
Thank you in considering my request.
Frank Gaster
513 Lake City Hwy
Johnsonville SC 29555
Phone: 843-845-1684
The information below may be helpful, but be warned, it is very confusing.
South Carolina's Age Of Consent Statute
Changes made to 16-3-655
HISTORY: 1977 Act No. 157 Section 5; 1978 Act No. 639 Section 1; 1984 Act No. 509; 2005 Act No. 94, Section 1, eff June 1, 2005; 2006 Act No. 342, Section 3, eff July 1, 2006; 2006 Act No. 346, Section 1, eff July 1, 2006; 2008 Act No. 335, Section 18, eff June 16, 2008; 2010 Act No. 289, Section 6, eff June 11, 2010; 2012 Act No. 255, Section 1, eff June 18, 2012.
Each Act in the History section will be presented below to show how the age of consent has changed after each Act. Some Acts modified the statute but did not change the age of consent and are therefore not listed.
1977 Act No. 157 Section 5
(1) A person is guilty of criminal sexual conduct in the 1st degree if the actor engages in sexual battery with a victim who is less than 11 years of age and the actor is at least 3 years older than the victim.
(2) A person is guilty of criminal sexual conduct in the 2nd degree if the actor engages in sexual battery with a victim who is 14 years of age or less but who is at least 11 years of age and the actor is at least 3 years older than the victim.
(3) A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is more than 14 years of age but who is less than 16 years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit.
1978 Act No. 639 Section 1
(1) A person is guilty of criminal sexual conduct in the 1st degree if the actor engages in sexual battery with a victim who is less than 11 years of age and the actor is at least 3 years older than the victim.
(2) A person is guilty of criminal sexual conduct in the 2nd degree if the actor engages in sexual battery with a victim who is 14 years of age or less but who is at least 11 years of age and the actor is at least 3 years older than the victim.
(3) A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is more than 14 years of age but who is less than 16 years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.
1984 Act No. 509
(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim who is less than eleven years of age. and the actor is at least 3 years older than the victim.
(2) A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age or less but who is at least eleven years of age. and the actor is at least 3 years older than the victim.
(3) A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.
2006 Act No. 346
(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim who is less than eleven years of age.
(2) the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or
(2) the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age. In addition, mistake of age may be used as a defense.
2008 Act No. 335
(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim who is less than eleven years of age.
(2) the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or
(2) the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age. In addition, mistake of age may be used as a defense.
2012 Act No. 255
(A) A person is guilty of criminal sexual conduct with a minor in the first degree if:
(1) the actor engages in sexual battery with a victim who is less than eleven years of age; or
(2) the actor engages in sexual battery with a victim who is less than sixteen years of age and the actor has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for an offense listed in Section 23-3-430(C) or has been ordered to be included in the sex offender registry pursuant to Section 23-3-430(D).
(B) A person is guilty of criminal sexual conduct with a minor in the second degree if:
(1) the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or
(2) the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is eighteen years of age or less when he engages in consensual sexual conduct with another person who is at least fourteen years of age.
(C) A person is guilty of criminal sexual conduct with a minor in the third degree if the actor is over fourteen years of age and the actor wilfully and lewdly commits or attempts to commit a lewd or lascivious act upon or with the body, or its parts, of a child under sixteen years of age, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the actor or the child. However, a person may not be convicted of a violation of the provisions of this subsection if the person is eighteen years of age or less when the person engages in consensual lewd or lascivious conduct with another person who is at least fourteen years of age.
I found Acts157, 639, 509 in the SC Archives, but I have not been able to find any legislative minutes to discover intent, nor have I found any newspaper articles.
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