Could a sheriff excuse an older conviction from South Carolina sex offender registration under the 1999 exception?

Plain-English summary

An Anderson County sheriff asked whether a 1999 amendment to South Carolina's sex offender registry law applied to people convicted under an earlier version. The 2000 AG letter answered by focusing on a required court finding. The exception for certain consensual conduct applied only when evidence had been presented in the criminal proceeding and the court had made the specific finding described by the statute. The AG said the exception, first created in 1996 and narrowed in 1999 to offenders age 18 or younger, did not allow a sheriff to make that determination.

If the court had made the required finding, the AG said the offender received the benefit regardless of when the conviction occurred. Without the finding, a person convicted of the specified offense had to register regardless of conviction date. The letter observed that a court was unlikely to have made such a finding before the exception existed; it did not describe a way to obtain a new finding after conviction.

Currency note

This opinion was issued in 2000. 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 conviction before the 1999 amendment automatically prevent use of the exception?
A: No. The AG said a person with the required court finding received its benefit regardless of conviction date.

Q: Could a sheriff decide that the conduct was consensual and waive registration?
A: No. The opinion assigned the exclusion decision to the court in the criminal proceeding, not the sheriff enforcing the statute.

Q: What if the sentencing court made no specific finding?
A: The AG said the person had to register regardless of when the conviction occurred and could face the statute's criminal penalties for failing to do so.

Background and statutory framework

The letter addressed convictions for criminal sexual conduct with a minor in the second degree. It quoted the exception in Section 23-3-430(C)(5), including its requirement of evidence and a specific finding on the record about the consensual conduct described there. The AG distinguished the date of conviction from the existence of that finding.

Citations and references

• Section 23-3-430(C)(5), the registry exception and required court finding.
• Section 16-3-655(3), the consensual-conduct provision cited in the exception.

Official title

“…as to whether or not this law is retroactive for offenders convicted and required to register under the old law, and do we apply the law that was in effect at the time of the offense or the law as it is written now.”

Requester

The Honorable Gene Taylor, Sheriff, Anderson County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-20-2000-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00sept20taylor.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLI E CO NDON
ATTO RNE Y GEN ERAL

September 20, 2000

The Honorable Gene Taylor
Sheriff, Anderson County
Post Office Box 5497
Anderson, South Carolina 29623
Re :

Your Letter of April 24, 2000

Dear Sheriff Taylor:

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In your letter, you reference the 1999 amendment to the Sex Offender Registry laws and the effect of the amendment on certain offenders convicted of Criminal Sexual Conduct with Minors, 2nd degree. You request that this Office provide an opinion " ... as to whether or not this law is retroactive for offenders convicted and required to register under the old law, and do we apply the law that was in effect at the time of the offense or the law as it is written now."

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First, all offenders convicted of Criminal Sexual Conduct with Minors, 2nd degree are required to register as sex offenders pursuant to S.C. Code§§ 23-3-400, et seq., regardless of their age or the circumstances surrounding their offense. There is, however, an exception to this requirement. Effective June 11, 1999 Section 23-3-430(C)(5) provides that "If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from consensual sexual conduct, as contained in Section 16-3-655(3) provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, the convicted person is not an offender and is not required to register .... " It should be noted that this exception was originally created by an amendment effective June 18, 1996. The most recent amendment merely narrowed the class of offenders able to claim the exception to those 18 years of age and under. Without such a specific finding by the court at the criminal proceeding where the conviction occurred, any offender convicted of Criminal Sexual Conduct with Minor, 2nd

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POST OFFICE Box 11 549

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COLUMBIA, S.C. 2921 1- 1549 . •

T ELEPHONE: 803-734-3970

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FACS IM ILE: 803-253-6283

The Honorable Gene Taylor
Page 2
September 20, 2000

degree would be required to register and would be subject to the criminal penalties should he fail to do so. The determination, therefore, to exclude an offender from the registry is in the hands of the court, not the sheriffs office charged with enforcing the criminal provisions of the statute.

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Secondly, ifthe court has made such a finding, the offender would be entitled to the benefit of that finding, regardless of when his conviction occurred. On the other hand, the opposite holds true. Unless the court has made such a finding, the offender would be required to register, regardless of when his conviction occurred. As a practical matter, it is doubtful the court would have made a ruling regarding the exception prior to the existence of the exception in the statute. I hope this has answered your concerns regarding the Sex Offender Registry. Should you have any additional questions or comments, please feel free to contact me.

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Assistant Attorney General
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