The SC Supreme Court held, in Powell v. Keel, that you can be removed from the sex offender registry in SC if you are not a risk to re-offend.

Up until now, there was no way for most people to get removed from the sex offender registry. Now, the SC Supreme Court has held that, as with SC’s lifetime GPS monitoring requirements, you must be given the opportunity to demonstrate that you are not at risk to re-offend.

You Can Be Removed from the Sex Offender Registry in SC

Up until now, it was next to impossible to get removed from the sex offender registry in SC.

SC Code Section 23-3-430 provided only three possible scenarios where you could be removed from the registry, including:

1) If your case has been overturned and there is not going to be a new trial:

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.

2) If you received a pardon based on a finding of not guilty (this rarely happens):

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.

3) If you are granted a new trial and you are acquitted at the retrial:

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.

After the recent SC Supreme Court opinion, however, you can also be removed from the sex offender registry if there is a finding that you are not a danger to re-offend. The Court found that SC’s lifetime registry requirement – without any opportunity for judicial review as to likelihood to re-offend – is unconstitutional.

…we hold SORA’s lifetime registration requirement without any opportunity for judicial review to assess the risk of re-offending is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending. Indeed, “a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme.” Dykes, 403 S.C. at 507, 744 S.E.2d at 510; see S.C. Code Ann. § 23-3-400 (2007 & Supp. 2020) (“Statistics show that sex offenders often pose a high risk of re-offending.”). However, the lifetime inclusion of individuals who have a low risk of re-offending renders the registry over-inclusive and dilutes its utility by creating an ever-growing list of registrants that is less effective at protecting the public and meeting the needs of law enforcement…

Moreover, there is no evidence in the record that current statistics indicate all sex offenders generally pose a high risk of re-offending.

Including on the registry every single person who is convicted of a sex offense (and many who are not convicted of sex offenses) defeats the purpose of the registry – who is likely to re-offend and who is not? Who is a danger to the community and who is not?

What is the Procedure to Get Removed from the Sex Offender Registry?

The Supreme Court did not provide a procedure for getting removed from the sex offender registry. They left it to the legislature to come up with a plan – something that the legislature has already done in the context of electronic monitoring devices.

Removal of Electronic Monitoring Devices

The procedure for getting removed from the sex offender registry in SC will probably be like the procedure for removing a GPS monitor – the person must show by clear and convincing evidence that they are not a danger to re-offend and there is no need for them to be on the registry.

Ten years after the placement of a GPS monitor, the person can petition the court for its removal. If that is denied, the person can renew their request every five years after.

The SC Supreme Court has previously held that:

• Electronic monitoring must is unconstitutional unless there is an opportunity for judicial review where the person can show that they are not a danger to re-offend (State v. Dykes), and
• Electronic monitoring cannot be added as a punishment for failure to register unless the court first holds a hearing to determine whether it is reasonable (State v. Ross).

These prior decisions of the court are in line with last month’s decision on removal from the sex offender registry, and the procedure for removal from the sex offender registry will most likely be similar to that for removal of electronic monitoring.

If more than ten years have passed since you were ordered to register, we may be able to get you removed from the registry by:

• Gathering evidence that may include an evaluation by an expert,
• Petitioning the court for your removal, and
• Presenting evidence, including expert testimony, that you are not a danger to re-offend.

Questions About Getting Removed from the Sex Offender Registry in SC?

If you are facing prosecution for a sex offense that will require sex offender registry if you are convicted, or if more than ten years has passed since you were convicted and you are ready to try to get off the sex offender registry, we may be able to help you.

Call now at (843) 808-2100 or contact us online for a free consultation to find out how we can help.