How Does the Sex Offender Registry Work in SC?
How does the sex offender registry work in SC?
People who are convicted of a sex offense in SC must register with their local sheriff to have their information included on SC’s sex offender registry – a public, searchable database that includes the person’s name, address, photograph, physical description including scars and tattoos, and even a description of their vehicles.
Every state and the federal government have sex offender registry requirements, but SC’s requirements are among the most draconian – even the most minor sex offenses require lifetime registration with no opportunity for removal from the registry.
Below, I’ll discuss how the sex offender registry works in SC, including what crimes require registration, the potential penalties and defenses for failure to register in SC, and the limited circumstances when a person can be removed from the registry.
How Does the Sex Offender Registry Work in SC?
Although many states and the federal government have a “tiered” sex offender registry system that allows a person to petition for removal from the registry after a certain number of years, SC Code Section 23-3-460(A) mandates lifetime registry for SC residents who are convicted sex offenders, regardless of the severity of their offense or their likelihood to re-offend.
How Often is a Sex Offender Required to Register?
Under Section 23-3-460, convicted sex offenders must register with the sheriff twice a year in each county where he or she lives, owns property, is employed, or attends school:
(A) A person required to register pursuant to this article is required to register biannually for life. For purposes of this article, “biannually” means each year during the month of his birthday and again during the sixth month following his birth month. The person required to register shall register and must reregister at the sheriff’s department in each county where he resides, owns real property, is employed, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school.
If a person has been declared a “sexually violent predator,” or if they have been “classified as a Tier III offender 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),” they must register every 90 days.
Who is a Resident of SC for Purposes of Sex Offender Registration?
SC Code Section 23-3-430(B) says that “[f]or purposes of this article, a person who remains in this State for a total of thirty days during a twelve-month period is a resident of this State.”
What Types of Convictions Require Sex Offender Registration in SC?
SC Code Section 23-3-430(C) lists the offenses that qualify for sex offender registration in SC – any conviction, including a conviction after trial, guilty plea, Alford plea, nolo contendere (no contest) plea, or an adjudication of delinquency in the case of a juvenile, results in the registration requirement.
The offenses include:
(1) criminal sexual conduct in the first degree (Section 16-3-652);
(2) criminal sexual conduct in the second degree (Section 16-3-653);
(3) criminal sexual conduct in the third degree (Section 16-3-654);
(4) criminal sexual conduct with minors, first degree (Section 16-3-655(A));
(5) criminal sexual conduct with minors, second degree (Section 16-3-655(B)) (unless the conviction resulted from consensual sexual conduct, as contained in Section 16-3-655(B)(2) provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age);
(6) criminal sexual conduct with minors, third degree (Section 16-3-655(C));
(7) engaging a child for sexual performance (Section 16-3-810);
(8) producing, directing, or promoting sexual performance by a child (Section 16-3-820);
(9) criminal sexual conduct: assaults with intent to commit (Section 16-3-656);
(10) incest (Section 16-15-20);
(11) buggery (Section 16-15-120);
(12) peeping, voyeurism, or aggravated voyeurism (Section 16-17-470);
(13) violations of Article 3, Chapter 15, Title 16 involving a minor;
(14) indecent exposure – 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;
(15) 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;
(16) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(17) trafficking in persons (Section 16-3-2020) 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;
(18) criminal sexual conduct when the victim is a spouse (Section 16-3-658);
(19) sexual battery of a spouse (Section 16-3-615);
(20) sexual intercourse with a patient or trainee (Section 44-23-1150);
(21) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:
(a) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);
(b) perform a sexual activity in the presence of the person solicited (Section 16-15-342);
(22) 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; and
(23) any other offense specified 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).
There is also a “catch-all” provision that allows the court to order a person to register as a sex offender even if their offense is not listed above:
(D) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the solicitor.
What if You Move to SC from Another State?
Anyone who moves to SC and who has a registry-eligible conviction from another jurisdiction – including state courts, federal court, or courts of a foreign country – is required to register in SC under SC Code Section 23-3-430(A):
(A) Any person, regardless of age, residing in the State of South Carolina who in this State has been convicted of, adjudicated delinquent for, pled guilty or nolo contendere to an offense described below, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in any comparable court in the United States, or a foreign country, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in the United States federal courts of a similar offense, or who has been convicted of, adjudicated delinquent for, pled guilty or nolo contendere, or found not guilty by reason of insanity to an offense for which the person was required to register in the state where the conviction or plea occurred, shall be required to register pursuant to the provisions of this article.
What if You Move to Another State from SC?
If you move to another state or country from SC, the registration requirements will be determined by the law of the jurisdiction you are moving to – depending on where you go and the type of conviction, you may be required to register for life, you may be required to register for a number of years after your conviction, you may be eligible to petition for removal from the registry, or you may not have to register at all.
How Does the Sex Offender Registry Work in SC if You Don’t Register?
SC Code Section 23-3-470 makes “failure to register” a crime, including the failure to notify the Sheriff of permanent or temporary changes in address, employment, or school attendance:
(A) It is the duty of the offender to contact the sheriff in order to register, provide notification of change of permanent or temporary address, or notification of change of employment, or in attendance, enrollment, employment, volunteer status, intern status, or vocation status at any public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any vocational, technical, or occupational school. If an offender fails to register, provide notification of change of address, or notification of permanent or temporary change in employment, or attendance, enrollment, employment, volunteer status, intern status, or vocation status at any public or private school, as required by this article, he must be punished as provided in subsection (B).
What are the Penalties for Failure to Register in SC?
A first-offense failure to register in SC is a misdemeanor punishable by up to a year and a day in prison, and, despite the potential penalty, can be tried in the magistrate courts:
(B)(1) A person convicted for a first offense is guilty of a misdemeanor and may be fined not more than one thousand dollars, or imprisoned for not more than three hundred sixty-six days, or both. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, or any other provision of law, a first offense may be tried in magistrates court.
A second-offense conviction for failure to register in SC is also a misdemeanor, but it carries a mandatory sentence of a year and a day in prison:
(2) A person convicted for a second offense is guilty of a misdemeanor and must be imprisoned for a mandatory period of three hundred sixty-six days, no part of which shall be suspended nor probation granted.
A third-offense conviction for failure to register in SC is a felony that carries a mandatory five-year prison sentence, although probation can be granted after the person has served three years in prison:
(3) A person convicted for a third or subsequent offense is guilty of a felony and must be imprisoned for a mandatory period of five years, three years of which shall not be suspended nor probation granted.
What If You Register with False Information?
SC Code Section 23-3-475 also makes it a crime to “knowingly and wilfully give[] false information when registering as an offender,” punishable with the same penalties as failure to register in SC:
(B)(1) A person convicted for a first offense is guilty of a misdemeanor and may be fined not more than one thousand dollars, or imprisoned for not more than three hundred sixty-six days, or both. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, or any other provision of law, a first offense may be tried in magistrates court.
(2) A person convicted for a second offense is guilty of a misdemeanor and must be imprisoned for a mandatory period of three hundred sixty-six days, no part of which shall be suspended nor probation granted.
(3) A person convicted for a third or subsequent offense is guilty of a felony and must be imprisoned for a mandatory period of five years, three years of which shall not be suspended nor probation granted.
Are There Defenses to Failure to Register in SC?
If you registered or diligently attempted to register but was prevented by the sheriff, you are not guilty of failure to register in SC.
Other defenses may include:
- You are not a SC resident (for purposes of sex offender registry, you are not a SC resident if you did not reside in SC for more than 30 days out of the year);
- You do not reside, own property, work, or attend school in the county where they are claiming you failed to register; or
- You are not a convicted sex offender under SC law.
For example, if you have a conviction for indecent exposure (which can result from urinating in public or a variety of other non-sexual situations) and the court did not order you to register as a sex offender, you cannot then be prosecuted for failure to register.
Similarly, if you were convicted of kidnapping and the court made a finding on the record that the crime was not a sex offense, you cannot later be prosecuted for failure to register.
In some cases, the defense attorney and prosecutor should have asked for a finding on the record that a kidnapping was not a sex offense but did not – in which case it may be possible to go back before the court with a consent order or to file a post-conviction relief (PCR) action asking the court to modify the judgment.
If your failure to register charges are based on a conviction from another state that 1) did not require to register and 2) the charges are not comparable to any SC offense that would require registry, you may have a valid defense.
If your conviction is from another country, SC Code Section 23-3-430(A) provides that you can raise as a defense:
- The offense in the foreign country is not equivalent to any SC offense for which you would be required to register; or
- “The conviction, adjudication, plea, or finding in the foreign country was based on a proceeding or trial in which the person was not afforded the due process of law as guaranteed by the Constitution of the United States and this State.”
There may be other defenses to charges of failure to register in SC based on your specific circumstances, and, even when there are no obvious defenses, it is critical to have an experienced criminal defense lawyer review your case, look for constitutional violations, and attempt to get the charges dismissed or reduced to avoid the mandatory prison sentence when possible…
How Do You Get Removed from the Sex Offender Registry in SC?
If you move and are no longer a SC resident, you no longer have to register in SC – you will be subject to the registration requirements in the jurisdiction where you live, though.
If your conviction for a sex offense is reversed, overturned, or vacated on appeal, your information must be removed from the registry and you will no longer be required to register:
(E) SLED shall remove a person’s name and any other information concerning that person from the sex offender registry immediately upon notification by the Attorney General that the person’s adjudication, conviction, guilty plea, or plea of nolo contendere for an offense listed in subsection (C) was reversed, overturned, or vacated on appeal and a final judgment has been rendered.
What if you win a PCR and are granted a new trial?
Does a PCR Win Remove a Person from the Sex Offender Registry in SC?
With regard to PCR proceedings, your attorney must proceed carefully to ensure you are removed from the sex offender registry – if you are granted post-conviction relief and a new trial is ordered, SC Code Section 23-3-430(G) says that you must be acquitted at the new trial or the solicitor’s office must consent to a verdict of acquittal:
(G) If an offender files a petition for a writ of habeas corpus or a motion for a new trial pursuant to Rule 29(b), South Carolina Rules of Criminal Procedure, based on newly discovered evidence, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:
(1) as provided by the provisions of subsection (E); or
(2)(a) if the circuit court grants the offender’s petition or motion and orders a new trial; and
(b) a verdict of acquittal is returned at the new trial or entered with the state’s consent.
What if you receive a pardon?
Does a Pardon Remove a Person from the Sex Offender Registry in SC?
SC Code Section 23-3-430(F) says that a pardon does not remove you from the sex offender registry unless the pardon is “based on a finding of not guilty specifically stated in the pardon” – something that rarely happens in SC:
(F) If an offender receives a pardon for the offense for which he was required to register, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:
(1) as provided by the provisions of subsection (E); or
(2) if the pardon is based on a finding of not guilty specifically stated in the pardon.
Does an Expungement Remove a Person from the Sex Offender Registry in SC?
An expungement does not remove a person from the sex offender registry because any conviction that requires registration is not eligible for expungement in SC.
SC Sex Offender Registry and Failure to Register Lawyer in Charleston, SC
Charleston criminal defense attorney Grant B. Smaldone accepts criminal defense cases – including sex crimes and failure to register charges – in the Charleston, Georgetown, Myrtle Beach, and Eastern SC area.
If you are facing charges that will result in sex offender registration or mandatory prison time for failure to register in SC, you need an experienced defense attorney on your case immediately to help prepare your defense.
Call now at (843) 808-2100 or send us a message to discuss your case and find out if we can help.
