§ 16-15-390 — Possessing depictions of minors engaging in sexual activity.

South Carolina § 16-15-390

• Jurisdiction: South Carolina
• Title 16: CRIMES AND OFFENSES
• Ch. 15: OFFENSES AGAINST MORALITY AND DECENCY

Text

(A) As used in this section: (1) "Obscene" has the same meaning as Section 16-15-305. (2) "Visual depiction or representation" means and includes undeveloped film and videotape, and data stored on a computer disk or by electronic means that is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means. (B) Any person who knowingly produces, distributes, solicits, or possesses with intent to distribute, a visual depiction or representation that depicts a minor engaging in sexually explicit conduct, sexually explicit activity, or sexually explicit nudity, and is obscene, or attempts or conspires to do so, is guilty of a felony and, upon conviction, must be imprisoned no more than ten years. (C) Any person who knowingly possesses a visual depiction or representation that depicts a minor engaging in sexually explicit conduct, sexually explicit activity, or sexually explicit nudity, and is obscene, or attempts or conspires to do so is guilty of a felony and, upon conviction, must be imprisoned no more than ten years. (D) The offense is a misdemeanor to be heard by the family court if the person charged under this section is a minor, and the minor has no prior adjudication under this section or for any offense for which a person may be included in the sex offender registry. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor. (E) It is not a required element of any offense under this section that the minor depicted actually exists. (F)(1) This section does not apply to an employee of a law enforcement agency, including the State Law Enforcement Division, a prosecuting agency, including the South Carolina Attorney General's Office or the South Carolina Department of Corrections, who, while acting within the employee's official capacity in the course of an investigation or criminal proceeding, is in possession of material that contains a visual representation of a minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation. An employee's official capacity in the course of such investigation or criminal proceeding includes making materials available for inspection to the defendant's counsel in response to discovery requests. (2) This section does not apply to a provider of a telecommunications service or an information service, as those terms are defined in 47 U.S.C. Section 153, for content provided by another person. (G) Any warrant for arrest for an alleged crime or offense under this section may only be issued upon: (1) a return of a "true bill" of an indictment by the state grand jury; or (2) a finding of probable cause following an investigation conducted by the Internet Crimes Against Children Task Force in conjunction with the Attorney General's Office.

Legislative History

HISTORY: 2025 Act No. 57 (S.28), SECTION 1, eff May 22, 2025. Editor's Note 2025 Act No. 57, SECTIONS 4, provides as follows: "SECTION 4. The State Department of Education, the South Carolina Law Enforcement Division, and the Attorney General's Office, as appropriate, shall develop and implement a policy to educate and notify students of the provision of this act. The State Department of Education must file a report as to the status of the adoption and implementation of the education policies under this act to the Governor, the President of the Senate, and the Speaker of the House of Representative, by July 1, 2026." 2025 Act No. 57, SECTION 5, provides as follows: "SECTION 5. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective".