Once you’re on it, it can be extremely difficult for most people to get removed from the sex offender registry in SC.
Once you have a conviction that requires registration, there are very few ways that you can get removed from the sex offender registry. They include 1) getting your conviction reversed on appeal, 2) receiving a pardon that is based on a finding of not guilty, or 3) a dismissal or acquittal after getting a new trial in a PCR action.
Below, we will discuss some common questions about SC’s sex offender registry, including whether an expungement allows you to be removed from the sex offender registry, the three statutory grounds for removal from the registry, and what types of convictions require sex offender registry in SC.
Does an Expungement Allow You to be Removed from the Sex Offender Registry in SC?
If your conviction is expunged, for example as a youthful offender under SC Code Section 22-5-920, all records of the arrest, prosecution, and conviction must be destroyed, except for a “nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once,” maintained by SLED.
Shouldn’t that include the records of the conviction that are published on the sex offender registry? Not according to the SC Court of Appeals…
In Young v. Keel, decided today, the SC Court of Appeals clarified that an expungement, despite requiring the destruction of all records of the arrest and conviction, does not require removal from the sex offender registry:
Besides, we are not convinced SORA and § 22-5-920 are in pari materia. Section 22-5-920 deals with expungements of criminal convictions for YOA first-time offenders, and the scope of the expungement is limited to the destruction of public records of the arrest and conviction and ensuring the confidentiality of the nonpublic records. The scope does not extend to undoing all collateral consequences of the conviction. The focus of SORA, on the other hand, is on a specific collateral consequence directed towards a certain class of sex offenders. It is significant that the registry requirement has been deemed to be a civil, non-punitive public safety regulation and not an additional criminal punishment of the offender.
Although the SC Supreme Court may ultimately decide the issue, for now, an expungement does not allow a person to be removed from the sex offender registry in SC.
How Can I Get Removed from the Sex Offender Registry in SC?
So how can you get removed from the sex offender registry in SC?
SC Code Section 23-3-340 provides for three limited circumstances where a person can be removed from the sex offender registry:
(1) a person whose conviction has been reversed, overturned, or vacated on appeal and a final judgment entered;
(2) a person who has received a pardon for the offense requiring registration and “the pardon is based on a finding of not guilty specifically stated in the pardon”; and
(3) a person who has been granted a new trial after filing “a petition for a writ of habeas corpus or a motion for a new trial based on newly discovered evidence” and “a verdict of acquittal is returned at the new trial or entered with the state’s consent.”
If your conviction is overturned on appeal, you can be removed from the registry. If the appellate court orders a directed verdict, suppression of critical evidence, or some other circumstance that would prevent a retrial, that may be the end of it. On the other hand, if your case is remanded for a new trial, you may be placed on the registry again if you are convicted at the retrial.
If you receive a pardon, you can only be removed from the sex offender registry if the pardon was “based on a finding of not guilty specifically stated in the pardon” – that’s extremely rare, and most pardons in SC are not based on a finding of not guilty.
If you win a PCR action, in most cases a new trial will be ordered – you can then be removed from the sex offender registry only if your case is dismissed or if you are acquitted at your retrial…
What Offenses Require Sex Offender Registry in SC?
The offenses that require placement on the sex offender registry in SC are listed in SC Code Section 23-3-340, and include:
- criminal sexual conduct in the first, second, or third-degree (Section 16-3-652 to 16-3-654););
- criminal sexual conduct with minors in the first, second, or third-degree (Section 16-3-655);
- engaging a child for sexual performance (Section 16-3-810);
- producing, directing, or promoting sexual performance by a child (Section 16-3-820);
- assault with the intent to commit criminal sexual conduct (Section 16-3-656);
- incest (Section 16-15-20);
- buggery (Section 16-15-120);
- peeping, voyeurism, or aggravated voyeurism (Section 16-17-470);
- violations of Article 3, Chapter 15, Title 16 involving a minor;
- indecent exposure, if the court makes a specific finding on the record that the person should register as a sex offender;
- 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;
- kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
- 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;
- criminal sexual conduct when the victim is a spouse (Section 16-3-658);
- sexual battery of a spouse (Section 16-3-615);
- sexual intercourse with a patient or trainee (Section 44-23-1150);
- criminal solicitation of a minor under some circumstances;
- giving someone gamma hydroxybutyrate (GHB) with the intent to commit a crime listed in Section 44-53-370(f), except petit larceny or grand larceny; and
- 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).
If you are facing criminal charges that may require you to register as a sex offender, you need an experienced criminal defense lawyer on your side immediately who will fight to keep you off the sex offender registry whenever possible.
Whether you are charged with a sex offense or trying to get your conviction overturned, the SC sex offense attorneys at Axelrod and Associates want to help. Call Axelrod and Associates now at (843) 916-9300 or email us to talk with a Myrtle Beach, SC criminal defense attorney today.