There are few things more tragic than a child’s innocence being taken by someone they trust who should know better. But it is also tragic to be charged with something that you did not commit… especially a crime as heinous as Criminal Sexual Conduct with a Minor.
In this article you will learn:
- The three types of Criminal Sexual Conduct charges in South Carolina
- The possible penalties for the three types of Criminal Sexual Conduct with a Minor convictions
- What “aggravating factors” are and how they affect sentencing
- What “mitigating factors” are and how they affect sentencing
Criminal Sexual Conduct w/ a Minor
I began my legal career prosecuting Criminal Sexual Conduct with minor (also called CSC with a minor) cases. They were tough. Many of those cases were difficult to prove as juries expected to see DNA evidence and fingerprints and hear doctors’ testimony about victims of child rape and their injuries. Some of the cases I had this evidence; some of the cases I did not. Some of the subject matter was very difficult to wrap my mind around.
In my years of handling these types of cases, I encountered parents who would not allow their children to testify. I had mothers who blamed their own minor children for being molested. I spoke to mothers who did not take up for or believe their children who claimed to be molested. I had cases where the accused person turned himself in to police and confessed to molesting kids. I had cases where different kids of the same age group were victimized. Child molestation cases are difficult for the prosecutors as well as defense attorneys. Often there are no witnesses, no DNA, no injuries, and the credibility of a child is on trial.
CSC with a Minor: The Charges & Penalties
In general, CSC w/ a minor involves a sexual battery where the victim is a minor. There are three different “degrees” you could be facing depending on the facts of your case. Sometimes people get “degrees” mixed up with the number of offenses. For example, someone can be charged with CSC with a minor 3rd degree, but it is their first time ever being charged with CSC with a minor. Each degree has its own set of requirements and penalties.
Who qualifies as a “minor”?
Some people think that a minor is under the age of 18 years old. But did you know the law in SC does not necessarily define a minor as being under the age of 18 years old? For each degree there is a different age and/or different mental faculty of the minor; we’ll go into detail below when analyzing each charge.
What is “sexual battery?”
Sexual battery is one of those legal terms that may have a different definition in the legal sense than it does in plain common language when you’re talking to people about it. The law in SC (SC Code Ann. Section 16-3-651) defines sexual battery as sexual intercourse, oral sex on a male (fellatio), oral sex on a female (cunnilingus), or any intrusion, however slight, of any part of a person’s body or any object into the genital or anal openings of another person’s body. The exception to this definition is when such intrusion is for medically recognized treatment or diagnostic purposes. Thus, sexual battery under SC law is not just having sexual intercourse with someone.
Criminal Sexual Conduct (CSC) with a Minor, 1st Degree
This charge is the most serious CSC with a minor charge in South Carolina. There are two main scenarios depending on the age of the victim:
- The accused person had sexual battery (see definition below) with a victim who is less than 11 years old; or
- The accused person had sexual battery with a victim who is less than 16 years old and the accused has previously been convicted of, pled guilty or nolo contendere to, adjudicated delinquent for an offense listed in § 23-3-430 (C) OR has been ordered to be included in the sex offender registry pursuant to § 23-3-430 (D).
Penalties for CSC with a minor 1st Degree
|Elements of CSC with a Minor 1st Degree in SC
|Felony vs. Misdemeanor
|– Victim is less than 11 years old
– Accused person does not have a prior CSC 1st w/ minor conviction on his/her rap sheet
|– Mandatory minimum of 10 years and up to 30 years in prison
– No part of the sentence can be suspended
– Not eligible for probation in lieu of prison time
– Mandatory sex offender registry for life
|– Victim is less than 11 years old
– Accused person does have a prior CSC 1st w/ minor conviction and/or is already a registered sex offender
|– Death penalty OR life in prison
– No part of the sentence can be suspended- Not eligible for probation in lieu of prison time
– Mandatory sex offender registry for life
What is considered a “prior conviction?”
If the accused person has a conviction for Criminal Sexual Conduct with a Minor 1st degree and that conviction date was before the date of the current conviction.
Here are a few examples:
- On January 1, 2000, Defendant had a conviction for Criminal Sexual Conduct with a Minor 1st degree.
- On January 1, 2020, Defendant was convicted of Criminal Sexual Conduct with a Minor, 1st degree. The 2000 conviction is considered a “prior conviction.” Thus, the Defendant will be facing a felony and either the death penalty or life in prison.
Keep in mind that a prior conviction counts as a prior conviction even if it was in federal court or a different state. For example, let’s assume the Defendant was convicted of the equivalent of CSC with a Minor in the state of Kansas in 2000. Then, in 2002 the Defendant was convicted of CSC with a Minor in the state of SC. Will the 2000 CSC with a Minor conviction in Kansas count as a prior conviction in SC? The answer is yes.
If you have a prior conviction it means you have been convicted of this offense in the past; it shows up on your criminal record. There are several different ways to be found guilty and this considered a conviction:
- You pled guilty;
- You took a plea agreement;
- You pled no contest;
- You pled guilty under an Alford plea; or
- You were found guilty by a judge or jury.
In all of those cases, you would be convicted or found guilty. If you were convicted or found guilty, depending on the facts of the case, this conviction could be used against you in a case pending in SC.
For some charges the court will punish you more harshly the 2nd, 3rd, etc. time around for doing the same thing again. This is called a “graduated offense” because each time you are convicted of the offense, the penalties are more severe. Thus, Criminal Sexual Conduct with a minor, 1st Degree is a graduated offense.
Criminal Sexual Conduct (CSC) with a Minor, 2nd Degree
There are two different scenarios in defining Criminal Sexual Conduct with a Minor, 2nd Degree, largely depending on the age of the victim. However, the statute also considers the age of the accused person and/or the relationship the accused person has to the victim.
A person is guilty of CSC with a Minor, 2nd Degree if:
- Victim is 11, 12, 13 or 14 years old AND
- The accused person had sexual battery (see definition of sexual battery in the paragraphs above in this blog article) with that victim; or
- Victim is 14 or 15 years old AND
- The accused person had sexual battery with that victim AND
- The accused person is in a position of authority (family, custody, etc.) to coerce the victim to submit OR
- The accused person is older than the 14 or 15 year old victim.
“The Romeo Clause” as it pertains to the CSC with a Minor 2nd Degree
There are very specific ages and situations that the statute contemplates that consider the age of both the victim and the accused person. This part of the CSC with a Minor 2nd Degree statute is commonly referred to “The Romeo Clause.” If the SC Romeo Clause is going to come into effect and be a viable defense, the accused person MUST be 18 years old or younger at the time(s) the sexual battery incident(s) occurred. The Romeo Clause does not apply to people who are accused of sexual battery that are 19 years old and older at the time of the sexual battery.
Under the South Carolina Romeo Clause:
- The accused person is 18 years old or younger at the time of the incident(s) AND
- The victim is at least 14 years old AND
- The sexual battery is consensual.
Penalties for CSC with a minor 2nd Degree
|Elements of CSC with a Minor, 2nd Degree
|Felony vs. Misdemeanor
|Penalties for CSC with a Minor 2nd Degree
|– Victim is 11, 12, 13, or 14 years old AND
– Accused person had sexual battery with the victim AND
– Accused person is 19 years old or older
|0-20 years prison
|– Victim is 14 or 15 years old AND
– Accused person had sexual battery with that victim AND
– Accused person is in a position of authority (family, custody, etc.) to coerce the victim to submit OR
– Accused person is older than the 14 or 15 year old victim
|0-20 years prison
– Victim is 14, 15 or 16 years old at the time of the incident and
– Victim consents to sexual battery and
– Accused person is less than 18 years old or younger at time of incident
|May be a defense to CSC with a Minor 2nd Degree in SC
Criminal Sexual Conduct (CSC) with a Minor, 3rd Degree
This current SC statute 16-3-655(C) replaced the old “Lewd Act” or “Lewd Act on a Minor” statute in SC. When I began my legal career as a prosecutor, the statute was named “Lewd Act on a Minor.” That’s why sometimes you may hear older, experienced lawyers referring to this statute as “the old Lewd Act statute.”
A person can be convicted of CSC with a minor 3rd degree if the accused person 15 years old or older AND the victim is less than 16 years old AND:
- Does willfully and lewdly commit a lewd or lascivious act on the victim; OR
- Attempts to commit a lewd or lascivious act on the victim.
“The Romeo Clause” as it pertains to the CSC with a Minor 3rd Degree
Note there is a Romeo Clause for this section of the statute as well. The Romeo Clause of this section applies only if:
- The accused is 18 years old or younger at the time of the incident(s) AND
- The victim consents AND is at least 14 years old.
What is a “lewd act”?
A person commits a lewd act if the person does commit or attempts to commit lewd or lascivious act upon or with the body of the victim with the intent of arousing, gratifying the lust, passions or sexual desires of the accused person or of the victim.
Penalties for CSC with a minor 3rd Degree
If convicted of CSC with a minor 3rd degree, you will be a convicted felon facing 0-25 years in prison. Additionally, you may be subject to a fine set by the presiding judge in his/her discretion.
|Elements of CSC with a minor, 3rd Degree
|Felony vs. Misdemeanor
|Penalties for CSC with a Minor, 3rd Degree
|– Victim is less than 16 years old AND
– Accused person is 15 years old or older AND commits or attempts to commit a lewd act on the victim
|0-25 years prison and/or discretionary fine
– Victim is 14 years old or older AND consents
– Accused person is 18 years old or younger
|May be a defense to CSC with a Minor 3rd Degree in SC
Important Notes on CSC with a Minor Charges
The SC Sex Offender Registry
If someone is convicted of CSC with a minor in SC, they will be required to register as a Sex Offender in SC for life. There are no sections or tiers of the sex offender registry in SC. Once you are on the registry, there is no way to be removed from the registry. Someone who is rehabilitated still cannot be removed from the registry. The person who molests a 6 month old baby is on the same registry as someone who was 19 years old and had sex with their girlfriend who was 14 years old. Although one of these crimes seems to be far more egregious than the other, SC does not make these distinctions on the registry. SC does not have sections, coded colors, or divisions of the sex offender registry. There are other states that do have these types of sections, but SC is not one of those states.
The Confrontation Clause and the Testimony of Child Molestation Victims
Taking the witness stand and talking into a microphone in a large courtroom with a judge, law enforcement, jurors, strangers, court reporter, court officials and lawyers can be intimidating to grown ups, so you can imagine the terror and nervousness of the children who took the stand in my trials. I even noticed that some experts, such as doctors, who testified during my trials were nervous, despite years of experience and higher education.
While I was a prosecutor, the law changed from requiring children to testify in an open courtroom with the accused present. The current law as of November 2020 is that under certain circumstances, victims of child molestation may be allowed to testify via closed circuit TV monitors without violating a Defendant’s constitutional right to confront his/her accusers.
If a child is not willing to testify in a child molestation trial, that is a huge consideration for the State/ DA’s office/ Solicitor. Technically the child is the “accuser” and without that testimony, the State’s case faces some challenges. Some victims and their families want justice, but this may be balanced with the mental health of a child victim. A victim may have been through counseling and learned coping skills for trial and for life, but testimony at trial may “reopen” wounds and set the victim back mentally. All of these and so much more go into preparing for a trial in a child molestation case.
The Motivation for False Accusations
No one wants to think that children or young folks lie or “tell stories” but the reality is it happens. I saw it when I was a prosecutor and I have seen it as a defense attorney. Young folks can be used as a manipulation tool by parents who are in a custody battle or a nasty hotly contested, expensive divorce.
The allegations can be made out of spite, anger or jealousy. I have seen young folks make false allegations to gain attention, either on social media or otherwise. Children often naturally want to do what their parents tell them to do and are easily influenced or coached by a particular parent, friend or family member to lie about child sexual abuse. All of these situations and so many others I have seen in my legal career are not fair to the Defendant — who may be an innocent person not capable of the heinous acts he is being accused of. That is why there is a need for criminal defense attorneys in these types of cases.
Delayed Disclosure in Sexual Assault Cases
Some cases were cases where the victim had come forward to report the crime years and years after it occurred. Those types of cases are called “delayed disclosure” cases. There is no statute of limitations in SC for criminal acts. Thus, someone who is 15 years old could report a crime that occurred when he/she was 8 years old.
As a defense lawyer these cases are also difficult. I have on the one hand someone proclaiming their innocence: my client. On the other hand, an innocent child claiming they have been violated in the worst way possible. In every case, I have to look beyond the allegations and look at the evidence. What are the motivations behind this child making these accusations? Why would a child make this stuff up? Is the child telling the truth or is my client telling the truth? Is the child making the accusations or is it really the child’s parent or parents? Is the child being abused by someone else and the child is saying it’s my client? Does my client have an alibi?
Need Help with a Criminal Sexual Conduct with a Minor Charge?
Understanding the different degrees of Criminal Sexual Conduct with a Minor is just the first step in a very long, detailed process. The average time frame for a case of this magnitude to be pending before the final court date is 1-3 years. With so much at stake, it is important that you or your loved one find an attorney that you feel comfortable with to explain the process every step of the way and may be able to recognize and explain your possible defenses. Finding the right attorney can be the most important step you take. This decision can affect the rest of your life.
Contact Susan Williams today for a free consultation.