How did South Carolina classify a lewd act upon a child under sixteen under the federal SORNA tiers?

Plain-English summary

In 2011, the South Carolina Attorney General advised the State Law Enforcement Division on federal SORNA tier classification for a conviction under the state's lewd-act statute, §16-15-140. The AG said the conviction would be Tier III when the child was under 13. For a child aged 13 to 15, the AG distinguished conduct involving a “sexual act” as defined by 18 U.S.C. §2246, which it described as involving naked genitalia, from other “sexual contact.” The first category was Tier III; contact not involving naked genitalia was, at minimum, Tier II.

The opinion did not assign one tier to every conviction under §16-15-140. It explained that the state offense could include sexual fondling and did not require violent injury or a sexual battery. Classification therefore depended on the conduct in the individual case and the child's age. The AG also said its classification was a best effort to compare the state offense with federal offenses and could not answer every situation absolutely. It left the federal SMART office's eventual determination of SLED's compliance with SORNA outside the opinion's scope.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Was every lewd-act conviction involving a child under sixteen automatically Tier III? A: No. The AG said an under-13 victim led to Tier III, while convictions involving 13- to 15-year-olds required attention to the conduct involved.

What tier did the opinion assign when the child was under 13? A: It advised Tier III for a conviction under §16-15-140 with a victim under 13, relying on its reading of SORNA and earlier AG opinions.

What if the child was 13 to 15 and the conduct involved naked genitalia? A: The opinion classified a conviction involving the federal definition of a sexual act in that situation as Tier III.

What if the child was 13 to 15 and the contact did not involve naked genitalia? A: The AG said sexual contact of that kind would classify at least as Tier II. It did not give a single unconditional tier for every factual variation.

Did the AG decide whether federal officials would accept SLED's SORNA classifications? A: No. The opinion said the federal SMART office's compliance determination was beyond its scope.

Background and statutory framework

SLED asked the AG to classify the state offense of committing or attempting a lewd act upon a child under sixteen as part of its SORNA work. The opinion quotes §16-15-140 and discusses the federal definitions in 18 U.S.C. §2246. It also refers to the AG's May 30, 2008 and July 7, 2011 opinions on other state offenses and SORNA tiers.

Citations and references

The opinion quotes §16-15-140, cites 18 U.S.C. §2246, and discusses Terry v. State and State v. Norton in describing the reach of the state offense. The federal compliance decision remained outside its scope.

Official title

Regarding the South Carolina Law Enforcement Division (“SLED”) working to become compliant with the Federal Sex Offender Registration and Notification Act (“SORNA”). Specifically, asking for advice regarding the proper Tier classification for the offense of “Committing or attempting lewd act upon child under sixteen.”

Requester

Susan O. Porter, Esquire, General Counsel, SC Law Enforcement Division

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-21-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/07/porter-s-os-9302-7-21-11-federal-sex-offender-registration-notification-SORNA-tier-categories.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

July 21, 2011

Susan 0. Porter, Esquire
General Counsel
South Carolina Law Enforcement Division
P.O. Box 21398
Columbia, SC 29221-1398
Dear Ms. Porter:
In a letter to this office, you reference that the South Carolina Law Enforcement Division ("SLED") is working to become compliant with the Federal Sex Offender Registration and Notification Act ("SORN A"). You explain that one of the requirements of SORNA is the classification of certain sex offenders into "Tier" categories. In opinions dated May 30, 2008, and July 7, 2011, we discussed applicable sex offenses in South Carolina and classified them as either Tier II or Tier III federal offenses, as defined by SORNA. 1 Specifically, you ask this office to advise SLED regarding the proper Tier classification for the offense of "Committing or attempting lewd act upon child under sixteen." Law/Analysis Pursuant to S.C. Code Ann. §16-15-140:
[i]t is unlawful for a person over the age of fourteen years to wilfully and lewdly commit or attempt a lewd or lascivious act upon or with the body, or its parts, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the person or of the child .. . . A person over the age of fourteen commits or attempts to commit the offense of a lewd act upon a child when that person: (1) willfully, (2) and lewdly, (3) with the intent of arousing, appealing to, or gratifying, (4) the lust or passions or sexual desires of the actor or the child, (5) commits or attempts to commit, (6) a lewd or lascivious act, (7) upon the body or with the body of a child under the age of sixteen. No ''violent injury" is necessary for the commission of this offense. Sexual fondling of a child falls within the term "lewd or lascivious act." See Terry v. State, 383 S.C. 361, 680 S.E.2d 277, 284 For an explanation of SORNA's Tier categories and statutory requirements, we cite to our discussion in the July 7, 2011, opinion. 1

REMBERT c. DENNIS BUILDING •

POST OFFICE Box 11549

• COLUMBIA, SC 29211 -1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Ms. Porter
Page2
July 21, 2011
(2009) [any inappropriate touching of a minor under sixteen is sufficient evidence of a lewd act charge]; South Carolina DSS v. Forrester, 282 S.C. 512, 320 S.E.2d 39, 43 (Ct. App. 1984) [evidence that the defendant fondled the victims' breasts was sufficient]; see also State v. Norton, 286 S.C. 95, 332 S.E.2d 531, 533 (1985) [dismissing defendant's double jeopardy claim and holding the defendant could be reindicted for committing a lewd act upon a minor after the trial court previously directed a verdict of acquittal on a charge of first degree criminal sexual conduct with a minor; the Supreme Court distinguished the elements of both offenses, and it noted the crime of committing a lewd act on a minor does not require a "sexual battery"2]. Conclusion Based upon our reading of SORNA and South Carolina law, and in light of our prior opinions, we advise that a conviction under § 16-15-140, and if the victim is under the age of 13, would classify as a Tier III offense.3 A conviction under this provision where there is a "sexual act" as defined by 18 U .S.C.
§2246, i.e., naked genitalia, and if the victim is 13 to 15 years old, would classify as a Tier III offense. A conviction under this provision where there is "sexual contact" as defined by 18 U .S.C. §2246, and the sexual contact is not of the naked genitalia and the victim is 13 to 15 years old, would classify, at a minimum, as a Tier II offense. In sum, the classification of a conviction for this offense depends upon the particular conduct involved in each case and the age of the victim as set forth above. This is our best effort to identify whether the above offense is similar to the referenced federal offenses. As stated in our earlier opinions, we cannot provide an absolute answer applicable to all situations. Additionally, whether the United States Department of Justice, Office of Justice Program, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking ("SMART"), upon further review of the SLED Checklist of South Carolina offenses, will determine that SLED is in compliance with SORNA guidelines is beyond the scope of an opinion of this office.

If you have any further questions, please advise.
Very truly yours,

~
N. Mark Rapoport
Senior Assistant Attorney General

2 Section 16-3-651 (h) defines "sexual battery" as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes."

3As we stated in the opinion dated July 7, 2011, any Hsexual act" or, for that matter, "sexual contact," as defined by 18 U.S.C. §2246, against a minor under 13 years of age would classify as a Tier III offense.

Ms. Porter
Page3
July 21, 2011

REVIEW D AND APPROVED BY:
/ -·

fa
Robert D. Cook
Deputy Attorney General