ABHAN is No Longer a Lesser Included Offense of CSC in SC
In State v. Hernandez, decided October 23, 2019, the SC Supreme Court announced that ABHAN is no longer a lesser included offense of CSC in SC.
Wait, what is ABHAN? What is CSC?
ABHAN stands for Assault and Battery of a High and Aggravated Nature, while CSC stands for Criminal Sexual Conduct – which could include CSC against an adult, CSC with a minor, or assault with intent to commit CSC.
ABHAN used to be a lesser included offense of CSC charges, which allowed a person charged with a CSC offense to plead guilty to ABHAN and possibly avoid the sex offender registry (if the prosecutor offered the lesser included offense as part of a plea agreement) and allowed jurors to find a defendant guilty of the lesser included offense of ABHAN instead of CSC.
ABHAN Used to Be a Lesser Included Offense of CSC in SC
For a crime to be a “lesser included offense” of another crime, it must pass the “elements test” –all the elements of the lesser included offense must also be elements of the greater offense.
Although the greater offense can have additional elements that the lesser offense does not have, the lesser offense cannot have additional elements that the greater offense does not have.
ABHAN has never passed the “elements test” with respect to CSC charges, but the courts have treated it as a lesser included offense “to have a uniform approach to CSC and ABHAN offenses:”
In Primus, we held ABHAN would be a lesser included offense of assault with intent to commit CSC—despite the fact it failed the elements test—”to have a uniform approach to CSC and ABHAN offenses.” 349 S.C. at 581, 564 S.E.2d at 106. We relied on State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001), overruled on other grounds by Gentry, 363 S.C. 93, 610 S.E.2d 494, in which we stated “we have consistently incorporated ABHAN into the CSC framework as a lesser included offense of” assault with intent to commit CSC. 346 S.C. at 607, 552 S.E.2d at 729; see also Magazine, 361 S.C. at 618, 606 S.E.2d at 765 (“ABHAN is a lesser-included offense of CSC.” (citing Primus)).
After the Hernandez decision, however, ABHAN is no longer a lesser included offense of any CSC offenses in SC, which means a defendant cannot plead to ABHAN unless the prosecutor indicts them for ABHAN, and jurors will not be given the option of finding a CSC defendant guilty of ABHAN instead of CSC.
Why ABHAN is No Longer a Lesser Included Offense of CSC in SC
The Supreme Court found that ABHAN is no longer a lesser included offense of CSC because ABHAN was codified in the Omnibus Crime Reduction and Sentencing Reform Act of 2010.
Whereas assault and battery offenses were common-law offenses (the elements and punishment were determined by prior judicial opinions), the 2010 Act now sets out specific elements for all assault offenses and it “abolished all common law assault and battery offenses and all prior statutory assault and battery offenses:”
In 2010, the South Carolina General Assembly passed the Omnibus Crime Reduction and Sentencing Reform Act of 2010 (the Act), which codified all assault and battery crimes into ABHAN, and first, second, and third degree assault and battery. S.C. Code Ann. § 16-3-600 (2015). As we stated in State v. Middleton, 407 S.C. 312, 755 S.E.2d 432 (2014), the “legislature abolished all common law assault and battery offenses and all prior statutory assault and battery offenses,” and in place of those offenses, codified “four degrees of assault and battery.” 407 S.C. at 315, 755 S.E.2d at 434.
It not only abolished the former common-law assault offenses, but the 2010 Act also specifies that each “level” of assault is a lesser included offense of the more serious assault offenses, from attempted murder down through third-degree assault and battery:
The Act also provides that ABHAN is a lesser-included offense of attempted murder; assault and battery in the first degree is a lesser-included offense of ABHAN and attempted murder; assault and battery in the second degree is a lesser-included offense of first degree assault and battery, ABHAN, and attempted murder; and assault and battery in the third degree is a lesser-included offense of second degree assault and battery, first degree assault and battery, ABHAN, and attempted murder. Id.
Now that the legislature has codified the assault offenses, specified which assault offenses are lesser included offenses, and declined to name ABHAN as a lesser included offense of CSC, the Court says there is “no longer… the need to ignore the elements test:”
Now that the Legislature has codified all degrees of assault and battery crimes, and has particularly set forth which offenses are lesser included offenses, we no longer see the need to ignore the elements test. We now hold ABHAN is not a lesser included offense of CSC.
Although it’s unclear why there was ever a “need” to ignore the elements test, it is clear that defense attorneys (or prosecutors) can no longer ask for or receive a jury instruction on ABHAN in a CSC trial or an option for jurors to find a defendant guilty of ABHAN instead of CSC.
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If you are charged with a crime in the Charleston, Myrtle Beach, or Georgetown areas, or if you believe you are under criminal investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.