§ 44-48-100 — Standard for determining predator status; control, care, and treatment of person; release; mistrial procedures; persons incompetent to stand trial.

South Carolina § 44-48-100

• Jurisdiction: South Carolina
• Title 44: HEALTH
• Ch. 48: SEXUALLY VIOLENT PREDATOR ACT

Text

(A) The court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a jury determines that the person is a sexually violent predator, the determination must be by unanimous verdict. If the court or jury determines that the person is a sexually violent predator, the person must be committed to the custody of the Office of Mental Health for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and has been released pursuant to this chapter. The control, care, and treatment must be provided at a facility operated by the Office of Mental Health. At all times, a person committed for control, care, and treatment by the Office of Mental Health pursuant to this chapter must be kept in a secure facility, and the person must be segregated at all times from other patients under the supervision of the Office of Mental Health. The Department of Behavioral Health and Developmental Disabilities may enter into an interagency agreement with the Department of Corrections for the control, care, and treatment of these persons. A person who is in the confinement of the Department of Corrections pursuant to an interagency agreement authorized by this chapter must be kept in a secure facility and must, if practical and to the degree possible, be housed and managed separately from offenders in the custody of the Department of Corrections. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court must direct the person's release. Upon a mistrial, the court must direct that the person be held at a local or regional detention facility until another trial is conducted. A subsequent trial following a mistrial must be held within ninety days of the previous trial, unless the subsequent trial is continued. The court or jury's determination that a person is a sexually violent predator may be appealed. The person must be committed to the custody of the Office of Mental Health pending his appeal. (B) If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), then the court first shall conduct a non-jury hearing, where it will hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal hearings, except the right not to be tried while incompetent and the right to a jury trial, apply. After hearing evidence on this issue, the court must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, then the court must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.

Legislative History

HISTORY: 1998 Act No. 321, SECTION 1; 2004 Act No. 176, SECTION 1, eff February 18, 2004; 2010 Act No. 158, SECTION 4, eff May 12, 2010; 2023 Act No. 19 (S.146), SECTION 7, eff May 16, 2023. Code Commissioner's Note At the direction of the Code Commissioner, certain references in the S.C. Code to the State Department of Mental Health, South Carolina Mental Health Commission, Department of Disabilities and Special Needs, Department of Disabilities and Special Needs Commission, Department of Alcohol and Other Drug Abuse Services, and other related terms were changed to reflect the restructuring of these agencies into component offices under the Department of Behavioral Health and Developmental Disabilities, pursuant to 2025 Act No. 3, SECTION 18. Effect of Amendment 2023 Act No. 19, SECTION 7, in (B), in the first sentence, substituted "then the court first shall conduct a non-jury hearing, where it will" for "the court first shall", in the third sentence, substituted "hearings, except the right not to be tried while incompetent and the right to a jury trial" for "trials, other than the right not to be tried while incompetent", and made a nonsubstantive change.