Could an Oregon juvenile harassment adjudication require sex-offender registration after a move to South Carolina?

Plain-English summary

South Carolina's juvenile justice director asked whether a youth adjudicated delinquent in Oregon for harassment had to register after probation transferred to South Carolina. Oregon did not require registration for that adjudication. The Attorney General said South Carolina's 2004 law could still require it if the Oregon offense was similar to a registrable South Carolina offense. Looking beyond the label and elements of harassment, the office said the adjudication facts should probably be considered to determine whether they showed intent to commit criminal sexual conduct. It did not make that factual finding for the juvenile and suggested a declaratory judgment because its analysis was not free from doubt.

Currency note

This opinion was issued in 2004. 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

Q: Did Oregon's decision not to require registration settle the South Carolina question?
A: No. The AG said the South Carolina statute also covered out-of-state adjudications comparable to a registrable South Carolina offense.

Q: Did the Oregon harassment elements alone establish a registrable South Carolina offense?
A: The opinion said they did not appear to show the required intent for assault with intent to commit criminal sexual conduct. It considered whether the specific adjudication facts could supply that intent.

Q: Did the AG decide that this juvenile must register?
A: No. It said registration might follow if the facts supported the needed similarity and recommended a court declaration to resolve the uncertain case.

Background and statutory framework

The youth had been charged with several offenses but adjudicated delinquent on two harassment counts. The letter compared the Oregon adjudication with South Carolina offenses, noting that one possible common-law assault offense did not require registration while assault with intent to commit criminal sexual conduct did. It treated offense comparability as a factual question and preserved that uncertainty rather than declaring a result.

Citations

• Section 23-3-430(A)
• Section 16-3-656
• State v. Brock
• Commonwealth v. Miller

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-11-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04june11byars.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McM.AsTER
ATTORNEY GENERAL

June 11 , 2004

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Bill Byars, Director
South Carolina Department of Juvenile Justice
P. 0. Box 2 1069
Columbia, South Carolina 29221-1069
Dear Mr. Byars:
In a letter to this office you indicated that a juvenile was charged in the State of Oregon with the offenses of first degree sodomy, first degree sexual abuse and two counts of harassment. On October 17, 2002, the juvenile was adjudicated delinquent on two counts of harassment, a class A misdemeanor. He was placed on probation for five years with probation being transferred to South Carolina under the Interstate Compact Agreement. You have questioned whether the juvenile must register pursuant to the South Carolina Sex Offender Registry Act, S.C. Code Ann. Sections 23-3400 et seq. (Supp. 2002). You indicated that Oregon does not require registration on the charge of harassment.

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Pursuant to Section 23-3-430(A),

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Any person, regardless of age, residing in the State of South Carolina who in this State has been convicted of, adjudicated delinquent for, pled gui lty or nolo contendere to any offense described below, or who has been convicted, adjudicated delinquent, pied guilty or nolo contendere in any comparable court in the United States or has been convicted, adjudicated delinquent, pied guilty or nolo contendere in the United States federa l courts of a similar offense, or who has been convicted of, adjudicated delinquent for, pied guilty or nolo contendere to an offense for which the person was requjred to register in the state where the conviction or plea occurred, shall be required to register pursuant to the provisions of this article. (Emphasis added). Therefore, in evaluating out of state adjudications, registration is required in this State if the adjudication requires registration in the state where the adjudication was entered or if the adjudication in another state is for a "simi lar offense". Harassment is defined by Oregon law pursuant to Section 166.065 as

~~~~U!LOING

• POST OFFICE Box 11549 •

COLUMBIA,

s.c. 292 11-1549 • T ELEPHONE: 803-734-3970 • F...cs1Mn.E: 803-253-6283

Mr. Byars
Page2
June 11, 2004

A person commits the crime of harassment ifthe person intentionally:
(A) harasses or annoys another person by: (A) subjecting such person to offensive
physical contact...Harassment is a class A misdemeanor if a person violates
subsection (1) of this section by subjecting another person to offensive physical
contact and the offensive physical contact consists of touching the sexual or other
intimate parts of the other person.

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As you indicated, talcing into account the age of the victim in this case, under the age of twelve, the
offense of harassment appears to be similar to the offense oflewd act on a minor, S.C. Code Ann.
Section 16-15-140 (2003) 1• However, the age of the referenced juvenile at the time of the offense,
thirteen years of age, would preclude that charge in that offender must be over the age of fourteen
years.
As you indicate in your letter, based upon the facts of this case, similar South Carolina
offenses to the Oregon offense would appear to be the common law offense of assault and battery
of a high and aggravated nature (ABRAN) or the statutory offense of assault with intent to commit
criminal sexual conduct, S.C. Code Ann. Section 16-3-656 (2003). A review of Section 23-3-430
indicates that ABHAN does not require registration in this State while assault with intent to commit
criminal sexual conduct does require registration. As to assault with intent to commit criminal
sexual conduct, Section 16-3-656 states that"(a)ssault with intent to commit criminal sexual conduct
described in the above sections shall be punishable as if the criminal sexual conduct was
committed. " 2 Included within the definition of the offense of assault with intent to commit criminal
sexual conduct are an assault and intent to commit a sexual battery. 3 State v. Brock, 335 S.C. 267,
516 S.E.2d 212 (Ct. App. 1999).

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Such provision states: "It shall be 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."
2

As indicated in State v. Ervin, 333 S.C. 351, 354, 510 S.E.2d 220, 222 (Ct. App. 1998),
"the phrase 'above sections' refers to§ 16-3-652, criminal sexual conduct in the first degree;§
16-3-653, Criminal sexual conduct in the second degree; § 16-3-654, Criminal sexual conduct in
the third degree; and § 16-3-655, Criminal sexual conduct with minors."
3

As explained in State v. Elliott, 346 S.C. 603, 552 S.E.2d 727, 729 (2001), "(a)lthough
most attempted sexual batteries will involve a touching, a person may be convicted of ACSC by
proof of an assault with or without a battery." Therefore, a battery is not a necessary element of
ACSC.

Mr. Byars
Page3
June 11, 2004

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As you point out in your letter, if analysis is restricted to the elements of the Oregon offense
of harassment, it does not appear that the harassment offense carries the requisite "intent to commit
criminal sexual conduct" for purposes ofmaking a finding of similarity to the offense of assault with
intent to commit criminal sexual conduct. However, if analysis is based upon the facts of the offense
as set forth in the petition filed in this case, and assuming a finding of intent to commit criminal
sexual conduct, the charge of assault with intent to commit criminal sexual conduct could be
considered similar. The facts of the offense of harassment were that the juvenile
... did unlawfully and intentionally annoy... (the victim) ... by subjecting... (her) .. .to
offensive physical contact by touching her vagina, a sexual or intimate part of ... (the
victim) ...
... did unlawfully and intentionally annoy... (the victim) ... bytouching her mouth to his
perus .....
A more thorough review of the facts of this case, such as an incident report or detailing of what facts
were presented to the court during the adjudication, would be advantageous in resolving the factual
issue of intent to commit criminal sexual conduct.
You have asked when in analyzing the "similar" nature of an offense in another state to one
in South Carolina, is the analysis restricted to the elements of the offense or can it include the facts
of the offense.

In analyzing your question, application must be made of the ordinary rules of statutory

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construction. There is the well-recognized rule of statutory construction that the intent of the
General Assembly must be given paramount importance. State v. Martin, 293 S.C. 46, 358 S.E.2d
697 (1987). A statute must be given a reasonable and practical construction consistent with the
purpose and policy expressed in the statute. Hay v. South Carolina Tax Commission, 273 S.C. 269,
255 S.E.2d 837 (1979). Furthermore, in construing a statute, words used must be given their plain
and ordinary meaning without resort to subtle or forced construction for the purpose of limiting or
expanding its operation. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984). The State Supreme
Court in its decision in In the Interest of: Ronnie A., 355 S.C. 407, 585 S.E.2d 311, 312 (2003),
determined that "(t)he intent of the legislature in enacting the sex offender registry law is to protect
the public from those offenders who may re-offend ... The registration of offenders, including
juveniles who have proved themselves capable of certain sex offenses, is rationally related to
achieving this legitimate objective."
Furthermore, as indicated in an opinion of this office dated April 22, 2002, it is important
to recognize that "(r)emedial statutes, the purpose of which is to promote public safety and welfare
are to be given a more liberal construction in order to effectual their purpose .... " That opinion which
indicated that application of the Sex Offense Registry Act is to be "quite broad" referenced the
provisions of Section 23-3-400 which sets for the purpose of the Act. Such provision states that

Mr. Byars
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June 11, 2004

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The .intent of this article is to promote the state's fundamental right to provide for the
public health, welfare and safety ofits citizens. Notwithstanding this legitimate state
purpose, these provisions are not intended to violate the guaranteed constitutional
rights of those who have violated our nation's laws. The sex offender registry will
provide law enforcement with the tools needed in investigating criminal offenses.
Statistics show that sex offenders often pose a high risk of re-offending.
Additionally, law enforcement's efforts to protect communities, conduct
investigations, and apprehend offenders who commit sex offenses are impaired by
the lack of information about these convicted offenders who live within the law
enforcement agency's jurisdiction.
The Supreme Court in State v. Tommy Walls, 348 S.C. 26, 558 S.E.2d 524 (2002) determined that
by such language, " .. .it is clear that the General Assembly did not intend to punish sex offenders, but
instead intended to protect the public from those sex offenders who may re-offend and to aid law
enforcement in solving sex crimes." The April 22, 2002 opinion referenced that
(t)his purpose would indicate the sex offender registry laws to be remedial in nature,
with public safety as their goal. A liberal reading to effectuate that goal would seem
to support the inclusion of offenders ....

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As to your question as to when analyzing the "similar" nature of an offense in another state
to one in South Carolina for purposes of requiring registration, is the analysis restricted to the
elements of the offense or can it include the facts of the offense, reference may be had to a prior
opinion of this office dated August 20, 2003 which dealt with the issue of what is considered "equal
to" for purposes of reciprocity laws. The opinion concluded that the term "equal to" means'" alike'
or 'similar', rather than 'identical". The opinion cited an opinion of the Washington Attorney
General which stated that"(c)omparing statutes to determine whether or not the standards, eligibility
requirements and examinations are equal requires a determination of fact since statutes of different
states cannot be expected to be identical."
The Pennsylvania Supreme Court in Commonwealth v. Miller, 787 A.2d 1036 (Pa. 2001)
dealt with the question of whether the appellant who had been convicted in federal court had to
register as a sex offender in Pennsylvania. By statute, he had to register if the offense for which he
had been convicted constituted an "equivalent offense". The Court in ruling that registration was
required stated that
... "an equivalent offense is that which is substantially identical in nature and
definition as the out-of-state or federal offense when compared to the Pennsylvania
offense ... Further, we compare "not only the elements of the crimes, but also ... the
conduct to be prohibited and the underlying public policy of the two statutes."

Mr. Byars
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June 11, 2004

787 A.2d at 1039(emphasis added). Therefore, for purposes of sex offender registry laws, in making
a determination as to whether an offense is an "equivalent offense" the Pennsylvania court indicated
that consideration is given to not only the elements of the crime but to the conduct and the
underlying public policy. Such is supportive of consideration of the facts of the offense in the case
you address. As expressed previously, the intent of the General Assembly in enacting the sex
offender registry laws in this State was to protect the public. Therefore, as expressed in the prior
opinion of this office, the statutes mandating registration as a sex offender are remedial statutes to
be liberally construed.

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A somewhat similar finding was made by the State Supreme Court in Przybyla v. South
Carolina Department of Highways and Public Transportation, 313 S.C. 116, 437 S.E.2d 70 (1993)
where the Court determined that for purposes of suspension under South Carolina law, a New York
conviction was treated' as a DUI third in face of argument that New York law was of "less
culpability" than DUI as defined by South Carolina. The State statute being construed, S.C. Code
Ann. Section 56-1-650, dealing with the effect of an out of state conviction stated that "if the laws
of the party state do not provide for offenses described in precisely the words employed in subsection
A of this section, the party state shall construe the descriptions appearing in subsection (A) of the
section as being applicable to those offenses of a substantially similar nature." The Court ruled that
While we acknowledge the differences between New York's and South Carolina's
statutory scheme and levels of impairment, the spirit of the Compact compels us to
hold that a violation of any statute or ordinance which prohibits driving while under
any impairment from alcoholic or narcotic drugs in a Compact state is of
substantially similar nature to South Carolina's DUI statute.

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313 S.C. at 119. Therefore, the "spirit of the Compact", the public policy, resulted in a construction
that broadly construed the out of state statute to be included if it was of "a substantially similar
nature". But see: In the Matter of Nadel, 724 N.Y.S.2d 262 (N.Y. 2001) (Registration as a sex
offender in New York is mandated for those particular sex offenders who are convicted in other
jurisdictions of any offense that includes "all of the essential elements" of certain enumerated New
York felony sex crimes. The court determined that it " ... strictly construed the 'essential elements'
test...(and determined that) ... the test requires that the elements of the out-of-State crime be virtually
identical to the counterpart elements of the New York felony." The court concluded that it may not
consider the factual allegations of the indictment or the evidence at trial).
Consistent with the above, it is our opinion that analysis as to whether the referenced juvenile
must register under South Carolina law should probably include consideration of the facts of the out
of state adjudication in determining whether the out of state adjudication is for a similar offense. In
this particular case, if review of the facts of the particular juvenile's adjudication adequately permit
a finding of intent to commit criminal sexual conduct, the Oregon offense of harassment could
probably be construed to be similar to assault with intent to commit criminal sexual conduct so as
to require that registration in this State as a sex offender. However, inasmuch as our conclusions

Mr. Byars
Page 6
June 11, 2004

are not free from doubt, it would be helpful to consider a declaratory judgment action so a court
could resolve all the facts of this particular case in determining whether registration is necessary.
Sincerely,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General

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