In Powell v. Keel, decided on June 9, 2021, the SC Supreme Court held that SC’s lifetime sex offender registry requirement is unconstitutional unless it contains an opportunity for judicial review to determine whether the person is at risk of re-offending.

This is a huge decision that will affect many people’s lives. SC’s lifetime sex offender registry requirements are the strictest in the nation, and many people who are not likely to re-offend are required to register, publicly shamed, harassed, and humiliated as a result.

The ball is now in the SC legislature’s court to rewrite the SC Sex Offender Registry Act (SORA) to provide a meaningful process for judicial review of whether a convicted sex offender is likely to re-offend and therefore should remain on the registry.

Powell v. Keel: SC’s Lifetime Sex Offender Registry Requirements are Unconstitutional

SC’s lifetime sex offender registry requirements cast a wide net – too wide.

Not every person who is convicted of a sex offense is going to be an ongoing danger to the community. Prosecutors, judges, and even some defense attorneys may feel horrified at the thought of a sex offender, seeing them as a monster who will hurt children again and again if they are not stopped, jailed, castrated, or shot.

That knee-jerk, emotional reaction is not reality, however.

There are many people who have been convicted of sex crimes who will re-offend if they are not carefully monitored. There are also many people who have been convicted of sex crimes who are not likely to re-offend, and there is no valid reason to keep those individuals on the sex offender registry.

All Sex Offenders Do Not Have a High Risk of Re-Offending

Consider that there are people on SC’s sex offender registry for:

• Urinating in public,
• Consensual relationships with a minor when the offender was only a few years older than the “victim,”
• Crimes committed while they were drunk that are not likely to ever be repeated,
• Allegations that were questionable, but the defendant pled guilty because they feared the possible consequences if they were convicted at trial, and
• Adjudications of delinquency for crimes committed when they were teenagers.

The SC Supreme Court in Powell v. Keel acknowledges that there is no evidence that sex offenders’ risk of recidivism is extremely high, and quotes other states’ courts and federal courts that have found that when sex offender registry requirements do not “provide a mechanism to evaluate a registrant’s individual risk of recidivism,” they are not “tied to the relative public safety risk presented by the particular registrants and [are] excessive with respect to the purpose for which [they were] enacted.”

The purpose of the sex offender registry is to ensure public safety by allowing law enforcement and concerned citizens to track the location of convicted sex offenders who are likely to re-offend.

When the registry instead includes every person who has ever been convicted of a sex offense without regard to their likelihood of re-offending, it’s purpose is diluted and it becomes nothing more than excessive punishment for those convicted sex offenders who are not likely to re-offend.

When is the Sex Offender Registry Required in SC?

SC Code Section 23-3-430 requires lifetime registration for any state resident who has been convicted of, pled guilty to, pled no contest to, or adjudicated delinquent of:

(1) criminal sexual conduct in the first degree (Section 16-3-652);

(2) criminal sexual conduct in the second degree (Section 16-3-653);

(3) criminal sexual conduct in the third degree (Section 16-3-654);

(4) criminal sexual conduct with minors, first degree (Section 16-3-655(A));

(5) criminal sexual conduct with minors, second degree (Section 16-3-655(B)). 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(B)(2) 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 pursuant to the provisions of this article;

(6) criminal sexual conduct with minors, third degree (Section 16-3-655(C));

(7) engaging a child for sexual performance (Section 16-3-810);

(8) producing, directing, or promoting sexual performance by a child (Section 16-3-820);

(9) criminal sexual conduct: assaults with intent to commit (Section 16-3-656);

(10) incest (Section 16-15-20);

(11) buggery (Section 16-15-120);

(12) peeping, voyeurism, or aggravated voyeurism (Section 16-17-470);

(13) violations of Article 3, Chapter 15, Title 16 involving a minor;

(14) a person, regardless of age, who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in this State, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in a comparable court in the United States, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in the United States federal courts of indecent exposure or of a similar offense in other jurisdictions is required to register pursuant to the provisions of this article if the court makes a specific finding on the record that based on the circumstances of the case the convicted person should register as a sex offender;

(15) kidnapping (Section 16-3-910) of a person eighteen years of age or older except when the court makes a finding on the record that the offense did not include a criminal sexual offense or an attempted criminal sexual offense;

(16) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;

(17) trafficking in persons (Section 16-3-2020) except when the court makes a finding on the record that the offense did not include a criminal sexual offense or an attempted criminal sexual offense;

(18) criminal sexual conduct when the victim is a spouse (Section 16-3-658);

(19) sexual battery of a spouse (Section 16-3-615);

(20) sexual intercourse with a patient or trainee (Section 44-23-1150);

(21) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:

(a) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);

(b) perform a sexual activity in the presence of the person solicited (Section 16-15-342); or

(22) administering, distributing, dispensing, delivering, or aiding, abetting, attempting, or conspiring to administer, distribute, dispense, or deliver a controlled substance or gamma hydroxy butyrate to an individual with the intent to commit a crime listed in Section 44-53-370(f), except petit larceny or grand larceny.

(23) any other offense specified by Title I of the federal Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), the Sex Offender Registration and Notification Act (SORNA).

SC’s sex offender registry law also permits a court to order lifetime registration for any offense not listed above “if good cause is shown by the solicitor.”

This means, under the law as it is currently written, you can be ordered to register as a sex offender for life after any conviction for any type of crime.

How Do I Get Off of the Sex Offender Registry in SC?

SORA, as it is currently written, allows a person to be removed from the sex offender registry in three specific situations:

1. When the conviction that requires registration is “reversed, overturned, or vacated on appeal and a final judgment has been rendered,”
2. When the person receives a pardon “based on a finding of not guilty” (this is a rare unicorn), or
3. When the person is granted a new trial and they are acquitted at trial.

After the Powell v. Keel decision, however, there must be a process for judicial review of an offender’s likelihood to re-offend.

The SC Supreme Court left the details to the SC legislature, and they noted that the legislature has previously established procedures for judicial review in cases of lifetime GPS monitoring, found in SC Code Section 23-3-540:

Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. The person shall serve a copy of the petition upon the solicitor of the circuit and the Department of Probation, Parole and Pardon Services. The court must hold a hearing before ordering the person to be released from the electronic monitoring requirements of this section, unless the court denies the petition because the person is not eligible for release or based on other procedural grounds. The solicitor of the circuit, the Department of Probation, Parole and Pardon Services, and any victims, as defined in Article 15, Chapter 3, Title 16, must be notified of any hearing pursuant to this subsection and must be given an opportunity to testify or submit affidavits in response to the petition. If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section. If the court denies the petition or refuses to grant the order, then the person may refile a new petition every five years from the date the court denies the petition or refuses to grant the order.

Ten years after the person is placed on GPS monitoring, they can petition the court for removal. If they are denied, they can re-petition the court once every five years.

If you are charged with a sex offense listed above that will require the sex offender registry if you are convicted, get an experienced sex crimes defense attorney on your case immediately who can help you to avoid a conviction or to avoid a conviction that requires sex offender registry if possible.

If you have been convicted of a crime that requires registry, contact an experienced sex crime defense lawyer ten years after your conviction who can help you to:

• Get an evaluation from an appropriate expert,
• Gather evidence that will prove to the court that you are not likely to re-offend, and
• Get you back into court to ask a judge to remove you from the sex offender registry.

Criminal Defense Lawyers in Columbia and Myrtle Beach, SC

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC, including the defense of sex crimes that require sex offender registry.

We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a sex offense in SC or if you think you may be eligible for removal from the SC sex offender registry, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.