The Age of Consent in South Carolina
The state of South Carolina recently stiffened the penalties surrounding sexual conduct with minors. Prior to the changes, the law defined any sexual activity with a minor under the age of 16 as criminal sexual conduct with a minor. The new law requires the age of consent to be raised to 18 years old in order for a charge of criminal sexual conduct with a minor to be applied. This shift in the law only applies to those who are found guilty of committing sexual conduct with a minor. It does not cap the age at which one can consent , though. A person 16 or 17 years of age can indicate they are consenting to the sexual advances of another person. Those who ignore this law and take advantage of a person 16 years of age or younger are subject to face the charges of criminal sexual conduct with a minor. The penalty for any person 18 years of age or older who engages in sexual intercourse or deviate sexual conduct with a minor under the age of 16 is 30 years to life in prison. The age of consent in South Carolina is currently 16 for both males and females.
Civil and Criminal Implications of the Age of Consent
The age of consent in South Carolina (or anywhere in the US for that matter) should not be confused with statutory rape. Statutory rape is defined as the act of sexual intercourse with an individual who is unable to give legal consent because of their age. Age of consent varies from state to state, from 10 in Delaware to 18 in California. However, South Carolina sets their age of consent at 16. If an individual under the age of consent engages in sexual activities with someone over the age of consent, the adult can be charged with statutory rape. Statutory rape cases are charged as a felony. Applying to persons of any gender, statutory rape laws are meant to protect the young regardless of their sex. While there’s some debate about what constitutes consent, teenagers and most young adults have limited experience regarding the emotional aspect of sexual intimacy.
One of the more carte blanche abuses of the statutory rape law is sex offender registration. Even if you have consensual sex with a person under the age of consent, you could face prison time if the age difference is more than a few years. Typically, if the age difference is more than ten years, the sex offender must remain on the registry for life. All states in the US have sex offender registries. This means that anyone convicted of statutory rape or other sex offences must register and be listed in a public database of sex offenders. In South Carolina, failure to comply with the sex offender laws can lead to years behind bars.
Exceptions to the Age of Consent Statute
Exceptions to the Age of Consent Law can be found in SC Code Sections 16-3-655, 16-15-140, and 16-15-141.
Close-in-Age Exemption. The close-in-age exceptions provide that relationships between individuals who are above the age of consent are not automatically criminalized. Sex or sexual activity involving two consenting individuals who are close in age is typically not a crime. Under SC Code Section 16-3-655 (Aggravated Sexual Battery) consent can be given when the victim is between the ages twelve and fifteen and the person committing the act is less than three years older than the other party; and is not an employee, agent, or volunteer of, or a person with supervisory or disciplinary authority over the victim. Under SC Code Section 16-3-655 (Sexual Conduct Without Consent) consent is defined as "Acceptable or acceptable behavior or conduct; or acquiescence by silence or inaction of the person whose consent was sought or refused." Given the definition of consent, contact between minors can be consensual if agreed by both. Furthermore, under SC Code Section 16-15-140 (Unlawful Sexual Conduct Towards a Child) consent is a defense. At the core of this section of the law is whether the alleged victim was at least fourteen years of age, but under the age of sixteen.
Consent as Defense to Solicitation of a Minor. S.C. Code Ann. Section 16-15-342(1) (Prisoner Solicitation of a Minor) provides that the person soliciting for sex is guilty of a lesser charge when the minor consented to the solicitation. Further, Section 16-15-345.1 (Sexual Exploitation of a Minor) states that the minor’s consent is not a defense. A third point is that SC Code Section 16-15-140 (Unlawful Sexual Conduct Towards a Child) does have a specific provision regarding the minor’s consent. The statute states that: (F) any act of sexual conduct with a minor under the age of eighteen years that has occurred as a result of a solicitation governed by Section 16-15-342, or a like solicitation via electronic communication, is evidence that a minor did not consent to the sexual conduct.
Exemptions. In light of the above, it is important to know that an exemption can be a defense to solicitation of a minor. The age of the minor is not a defense; instead the critical aspect of SC Code Section 16-15-342 (Prisoner Solicitation of a Minor) is that the solicitation was for sexual activity with a minor. Therefore, should the solicitation ask for sexual conduct or sexual activity with a minor, regardless of whether the minor was underage or aged 16 years or up, the act was illegal solicitation of a minor. If the solicitation does not meet the standards of solicitation of a minor, then the code sections enumerated above do not apply. This law does not suggest that the solicitation used a minor as a vehicle to perpetrate the solicitation for sexual conduct or activity with someone else. Instead, it only addresses the solicitation, the solicitation of a minor.
An exemption must be raised by a defendant. The court will almost always do a full exposition of the facts where an exemption is raised, because courts should never make a determination that the state does not prove the crime charged by the evidence presented.
How it Compares to Other States
School age minors are the primary focus of statutory rape prosecutions in many states, including South Carolina. S.C. Code § 16-15-60(B) provides a defense where the defendant was no more than three years older than the alleged victim. A three-year defense is not available in many other states, such as Texas, which defines statutory rape as sexual conduct "by a person who is not the child’s guardian against the child" if the child is under 17. Tex. Penal Code Ann. § 21.11(a). Thus, a defendant in South Carolina can avoid prosecution for statutory rape for intercourse with a 15-year-old if he or she is 18 – although the defendant might still be charged with a lesser crime.
Similarly, a 19-year-old adult can have sex with the 15-year-old minor without prosecution for statutory rape if the sexual activity takes place in North Carolina. The same is true for a 20-year-old adult in Alabama (of course, the state might charge a lesser offense).
The opportunity for criminal prosecution is even greater in Hawaii. The age of consent there is 16, which means that every teenager in the state except 16 and older can legally consent to sex. Thus, a 17-year-old can have sex with an 11-year-old and not face statutory rape charges. The crime would only be a petty misdemeanor, however, where the offender is married to the victim. For the same offense , a man who is not married to the 11-year-old could face a felony charge.
Again, more than one state makes the ages of the victim and offender irrelevant for purposes of determining whether a relationship is proscribed. In Mississippi, there is no minimum age for consents so long as the relationship is entered into "voluntarily" and is therefore not forcible. Applying the consent laws literally to the province of statutory rape, a 40-year-old man can have sex with his 5-year-old daughter if she consents and there is no force. To compound this problem, even though the Mississippi law makes no age distinction between parties, the statute that makes consent illegal if the woman is under 12 or is mentally unfit further confirms the absurdity. A 39-year-old (or anyone older, for that matter) can have sex with a five-year-old or someone suffering from some mental illness or impairment as long as the victim consents.
Such bizarre dissonance between the law and the social goal of statutory rape statutes accounts for why these laws are often campaign fodder for those who want to use the law to attack the court system or other perceived societal ills. Whether those persons succeed in their campaigns is largely irrelevant to inmates who are serving lengthy sentences based on what they did when they were 19 years old.
Legal Defenses, Legal Counsel and More
Because of the potential penalties involved in cases of alleged age of consent violations, there are a number of possible legal defenses to these charges, and accused individuals are urged to work closely with their criminal defense attorneys throughout the process.
In many cases, individuals have little understanding of consent laws, and they may be entirely unaware of an individual’s age. In some cases, it may be revealed that the "victim" of the alleged offense has not always been truthful about his or her age.
There are also times where an accusation of age of consent violation may involve some misunderstanding on the part of the accuser. For example, a young person might be caught up in a scenario that runs afoul of South Carolina law, but he or she actively provided consent while believing that the relationship was legal. Although the law is quite clear as to age of consent, in certain situations, an accused individual may be able to assert that he or she was unaware that any offense was taking place.
There are even circumstances in which an arrest for an age of consent violation occurs as a result of a plan that was created and orchestrated by the "victim." Only through the close guidance of an attorney can an accused individual pursue the most beneficial legal defense strategy.
Impact on Teens, Students and Staff
Since the age of consent in South Carolina is 16 years old, there has been a slight debate amongst local law agencies as to how the law should apply to students in high school who are, on average, between 15 and 17 years of age. For example, some South Carolina law enforcement agencies believe that they do not have jurisdiction to be involved in cases where the age of consent laws are allegedly being violated because the students involved are within the permissible range, but some law agencies are arguing that since these students are under the age of 18 and minors under the age of 18, their parents/guardians can be charged with criminal sexual conduct with a minor in second degree for failing to pay appropriate attention to the relationship with the purposes of preventing a sexual crime from occurring.
In terms of education programs , sex education courses in South Carolina high schools include instruction for students on the risks of sexual behavior; HIV/AIDS and other sexually transmitted diseases; pregnancy and adoption; birth control and contraception; and things to know about loves and dating. The South Carolina law, however, is incredibly vague, as it only requires discussions of abstinence as the only method that is guaranteed to prevent STDs and unplanned pregnancies, and not other forms of sex that are not vaginal sex; issues regarding sexual harassment, gang and dating violence, domestic violence, and teen driving must also be discussed with students periodically as well per the law.
There does not appear to be any particular state-sponsored programs or initiatives in South Carolina focusing on the legal age of consent specifically.