South Carolina Sexting Laws

Table Of Contents

Quick Take – § 16-15-305 through § 16-15-440:
§ 16-15-305 through § 16-15-440:
South Carolina and harassment in the second degree
Juvenile court or criminal prosecution?

South Carolina laws/statutes specifically related to sexting do not exist in a traditional sense, however, you can still be charged under much more harsh obscenity and child pornography statutes.

Quick Take – § 16-15-305 through § 16-15-440:

It is unlawful to disseminate or allow a minor to peruse harmful material.
Mistake-of-age is not a defense under this section.
It is an affirmative defense if -the accused requested and received a driver’s license, student ID, or other official educational or governmental identification.
Dissemination of harmful material to a minor is a felony.
All equipment and property used in violation of this statute are subject to forfeiture.
Buggery is a felony punishable by up to five years in prison.
Teens above 14/adjudicated delinquent may face trial in adult court.
Teens convicted of obscenity or sexual exploitation of a minor must register as sex offenders.
South Carolina’s Romeo and Juliet clause only applies to teens below 18 and above 14.
Nude selfies constitute child pornography in South Carolina.

South Carolina sexting laws summary

With no sexting laws in place to shield teens from felony charges and mandatory sex offender registration. Teens who create and disseminate sexually explicit images of themselves risk adjudication in family court, criminal prosecution, and collateral consequences. Collateral consequences include residence restriction, active GPS monitoring, sex offender registration, and internet use restrictions. Why?

State law allows prosecutors to charge anyone above 14 with certain felonies. Therefore, teens below 17 accused of misdemeanor offenses will likely face prosecution in family court. However, child pornography possession and dissemination are both federal and state felonies. Furthermore, the list of potential charges does not stop there. Meaning prosecutors may also pursue Communicating Obscene Messages Without Consent, Disseminating Obscene Material to a Minor, Harassment in the Second Degree, Participation in the Preparation of Obscene Material, Sexual Exploitation of a Minor, and related charges.

The age of consent in South Carolina is 16; however, under state law, anyone below 18 does not have the legal authority to consent to be the subject of sexual performance. Furthermore, nude selfies constitute child pornography in the state; thus, both the sender and receiver are at equal odds of prosecution.

When does sexting become child pornography in South Carolina?

Under § 16-15-405, “Second-Degree Exploitation of a Minor,” it is unlawful for anyone to knowingly create, distribute, or possess any visual representation of a child engaged in sexual conduct. State and federal law define a child as anyone below 18. Furthermore, section C of the statute explicitly states that mistake-of-age is not a defense from prosecution under the statute.

What you need to remember is -Second Degree Exploitation of a Minor is a felony punishable by:

(1) a mandatory minimum sentence of two years without the possibility of parole or suspension.

(2) a maximum sentence of not more than ten years. If the child depicted was below thirteen, the accused is eligible for enhanced punishment.

Possession is a third-degree offense that does not have a minimum sentence and is punishable by up to ten years in prison,

South Carolina sexting laws and disseminating obscenity to minors

Article Three, “obscenity, material harmful to minors, child exploitation, and child prostitution.” Defines “Obscene Material” as any media that that to the average person applying contemporary community standards -describes or depicts in a patently offensive manner sexual conduct specifically defined by subsection C.

“Sexually explicit conduct” refers to acts including masturbation, intercourse, lewd exhibition of the genitals, sodomy and all acts intended for arousal or sexual gratification.

Section 2 states that the material should lack any serious artistic, literary, political, or scientific value and is not privileged or protected under the constitution.

Consequently, sending pornography, nude selfies, or any harmful material to minors is a felony punishable by up to five years in prison, according to § 16-15-345. “Disseminating Obscene material to a person under age 18 prohibited; penalties.”

If the child receiving the image or video is below twelve, the punishment escalates to ten years.

§ 16-15-305 through § 16-15-440:

It is unlawful to disseminate or allow a minor to peruse harmful material.
Mistake-of-age is not a defense under this section.
It is an affirmative defense if -the accused requested and received a driver’s license, student ID, or other official educational or governmental identification.
Dissemination of harmful material to a minor is a felony.
All equipment and property used in violation of this statute are subject to forfeiture.
Buggery is a felony punishable by up to five years in prison.

South Carolina Romeo and Juliet clause

South Carolina’s Romeo and Juliet clause states that consensual sexual conduct between a minor younger than 18 and another who is at least fourteen does not constitute third-degree Lewd acts with a minor.

Section 16-3-655 defines third-degree lewd act with a minor as quote:

“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 willfully 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.”

Note: first degree and second-degree lewd acts with a minor are felonies punishable by anywhere from twenty years to life.

Communicating obscene messages without consent

Section 16-15-250. “Communicating Obscene Messages Without Consent.” States that, quote

“It is unlawful for a person to anonymously write, print, telephone, transmit a digital electronic file, or by other manner or means communicate, send, or deliver to another person within this State, without that person’s consent, any obscene, profane, indecent, vulgar, suggestive, or immoral message.”

Under the statute, obscene communication is a misdemeanor punishable by up to three years in prison and a fine.

South Carolina and harassment in the second degree

Under section 16-3-1700, “Harassment in the First Degree” refers to a pattern of substantial and unreasonable intrusion into the private life of another with no legitimate purpose that would cause a reasonable person to suffer emotional or mental distress. “

Of relevance is section 2, which reads, quote, “visual or physical contact that is initiated, maintained, or repeated after a person has been provided oral or written notice that the contact is unwanted or after the victim has filed an incident report with a law enforcement agency.”

What that means is nonconsensual sexting constitutes harassment in the second degree. Also, under the statute, “electronic contact” refers to any transfer of images, sounds, signals, signs, or any information transferrable via wire, radio, photoelectric system, internet /computer, or photo-optical system.

South Carolina sexting laws and criminal solicitation of a minor

Communicating, or attempting to communicate with a minor with the intention of enticing, coercing, inducing, or in any way- encourage a child to participate in sexual conduct is both a state and federal crime. Under state law, § 16-15-342 “Criminal Solicitation of a Minor,” soliciting sexual conduct from a minor in person or via an electronic device is a felony punishable by up to ten years in prison and a fine.

Section C and D of the statute state that Mistake-of-age and consent are no defense.

What to remember

Soliciting sexual conduct from a child across state lines or international borders is a federal offense.
The punishment for soliciting a minor is up to ten years in prison and a $5000 fine. On the federal level, the punishment is anywhere from ten years to life.

Juvenile court or criminal prosecution?

Under state law, teens above 17 accused of a felony or misdemeanor punishable by up to ten years can be transferred to adult court. Upon conviction for a sex-related crime, the teen must register as a sex offender. Teens above fourteen charged with felony offenses may also face prosecution in adult court.

What to remember:

If the court finds a teen guilty of committing a criminal offense/ adjudicated delinquent, the accused must register as a sex offender.
A teen tried under statutes including child exploitation, disseminating obscenity, and child pornography must register as a sex offender upon conviction.

Teens accused of misdemeanor or petty offenses may face prosecution in juvenile court. If prosecuted in the juvenile system, the accused may not have to register as a sex offender. Instead, the punishment options include probation, supervision, educational program, incarceration, and other corrective measures.

South Carolina sexting laws and unlawful dissemination of private images

According to South Carolina’s Revenge Porn Act, Section 1-15-260, it is unlawful for anyone to sell, distribute, draw, record, or in any way disseminate private depictions of another without consent. Any violation of the statute is a misdemeanor punishable by up to one year in prison and a $1000 fine.

The victim may take civil action against the accused to recover damages. We recommend keeping records and contacting a lawyer immediately if you choose to act.

Note: the state’s revenge porn act only applies if both the victim and accused are above 18.

References

Other South Carolina Laws