C. Crimes Against Morality and Decency

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

C. Crimes Against Morality and Decency

1. Introduction

This section deals with a class of criminal offenses that has been the subject of great debate and criticism. In effect, these offenses seek to regulate moral conduct in areas where few historical legal guidelines exist, and the harm at issue may be in dispute.

Most of the offenses included in this section were not common law crimes in England, but were controlled by the ecclesiastical courts of the church. The South Carolina statutes are based upon these same ecclesiastical "offenses." They are subject to increasing criticism as an attempt to force morality upon members of the public, some of whom question the appropriateness of the State regulating private conduct that is not directly harmful to another. The authors tend to agree with Professor Perkins' statement to the effect that the church and community, rather than the criminal law, should take the responsibility of enforcing private morality in areas that present no threat to the public. Perkins and Boyce, at 453. Many of these offenses now appear to be dormant.

2. Adultery and Fornication

The offenses of adultery and fornication were not indictable common law offenses, and thus, are punishable only by means of statute in South Carolina. State v. Brunson, 18 S.C.L. (2 Bail.) 149 (1831); Perkins and Boyce, at 454. The present South Carolina statutes on these offenses, S.C. Code Ann. §§ 16-15-60-80 (2003), were passed in 1880 and have seen little prosecution since the early 1900's.

The elements of the offense of adultery are either the cohabitation of two individuals of the opposite sex with evidence of sexual intercourse or evidence of habitual intercourse without living together. Under either test, at least one of the parties must be legally married to some other person. S.C. Code Ann. § 16-15-70 (2003). The elements of fornication are identical to adultery, except that neither of the individuals involved is married. S.C. Code Ann. § 16-15-80 (2003).

The question of whether intercourse is habitual under the provisions of the statute is relegated to the jury. Although one occasion would obviously not be sufficient, the South Carolina Supreme Court has held that testimony of frequent intercourse over several months is sufficient to submit that question to the jury. State v. Sauls, 70 S.C. 393, 50 S.E. 17, 18 (1905).

It also appears that a defense of lack of intent to violate the statute does not preclude guilt. In State v. Westmoreland, 76 S.C. 145, 56 S.E. 673 (1907), the defendant interposed the defense that he had obtained a divorce from his former wife in Georgia. The trial court allowed the State to prove by parole evidence that the divorce was void because of a lack of residency on the part of the defendant in Georgia. The trial court then submitted the question as to whether the defendant was married at the time of the alleged adultery to the jury. The Supreme Court found that the trial court properly refused to instruct the jury that if the defendant relied upon the foreign divorce, he would not have the requisite intent to violate the statute. The Court held that "[t]he absence of an intention to violate the statute is not a defense." Id. at 150, 56 S.E. at 674.

Adultery and fornication are Class C misdemeanors (one year maximum). § 16-15-60. The parties to adultery or fornication may be tried jointly or separately. Sauls, at 394, 50 S.E. at 18.

3. Bigamy

Bigamy was a felony at common law. State v. Breuer, 113 S.C. 177, 179, 102 S.E. 15, 16 (1920) (citing 4 Blackstone 464 [sic 164]). It was declared a felony by statute in 1712. 2 Stat. at Large, 508. In essence, the statute prohibits any person from marrying while still lawfully married to another.

Since this State recognizes common-law marriages as valid, proof of such a marriage would be sufficient to establish the prior marriage necessary for a criminal conviction under this section. State v. Britton, 15 S.C.L. (4 McCord) 256 (1827). There are several exemptions to the crime listed in the statute. S.C. Code Ann. § 16-15-10 (2003). One notable excuse is that the defendant's spouse is serving a life sentence in prison. If the prior marriage is void, invalid for all purposes, a bigamy prosecution will not lie, but a voidable prior marriage will not preclude a bigamy conviction. State v. Sellers, 140 S.C. 66, 134 S.E. 873 (1926).

Although there are no South Carolina cases on point, bigamy has been considered an offense elsewhere, even though unwittingly committed. State v. Goulden, 47 S.E. 450 (N.C. 1904). Contra Long v. State, 65 A.2d 489 (Del. 1949). As there is usually no "vulnerable" victim, as in statutory rape cases, the public interest in protecting minors or incompetents would not be involved. Thus, an honest mistake of fact defense should be allowed.

The punishment provided for in S.C. Code Ann. § 16-15-10 is a five-year maximum (Class F felony). The Court held that a sentence of 18 months imprisonment was within the previous statutory provisions and not a violation of the cruel and unusual punishment protections of the South Carolina and United States Constitutions. State v. Rogers, 215 S.C. 161, 54 S.E.2d 557 (1949).

4. Incest

Incest is "carnal intercourse" between persons within certain statutory degrees of relationship. At common law, it was not a civil offense but an ecclesiastical crime. At that time, either sexual intercourse or marriage between two persons who were closely related was punishable. The degree of relationship necessary to establish incest is set forth in S.C. Code Ann. § 16-15-20 (2003). The statute basically prohibits intercourse between blood relations within the second degree of kinship (consanguinity) and between either spouse and members of the other spouse's family within the second degree (afinity). Incest is exempt from the classification system per S.C. Code Ann. § 16-1-10(D).

The South Carolina Supreme Court concluded that corroboration of the victim's testimony was not necessary to find a juvenile defendant guilty of the offense after considering the incest statute in light of the "kindred offenses" addressed by the General Assembly and the specific provision of § 16-3-657, which provides that the testimony of the victim need not be corroborated in prosecutions under §§ 16-3-652 through 16-3-659.1 (Criminal Sexual Conduct). In the Matter of Lawson, 273 S.C. 560, 257 S.E.2d 745 (1979).

In an earlier decision, the Court held that the wife of a defendant in an incest prosecution could testify against the accused as to the facts of the incest, so long as she was not asked to testify about any confidential communication and she was a willing witness. State v. Reynolds, 48 S.C. 384, 26 S.E. 679 (1897). Reynolds also held that there was no statute of limitations to the crime of incest, and there was no prohibition to prosecuting a charge of incest for an act that occurred some seven years prior to the date of the indictment. Id.

5. Seduction and Related Offenses

Historically, South Carolina criminally proscribes conduct threatening the chastity and innocence of young women. In 1993, the Legislature repealed two of the three statutes providing this protection. These statutes, abducting a maid under the age of 16, § 16-15-30, and deflowering or contracting matrimony with abducted maid under 16 years of age, § 16-15-40, dated from 1712. Seduction under promise of marriage, § 16-15-50 (2003), originally enacted in 1905, was not repealed, but was amended to make it a Class C misdemeanor. It should be noted that some of the basic purposes of these statutes are still deemed important; prosecutions do occur under the criminal statute of contributing to the delinquency of a minor, § 16-17-490 (2003). The constitutionality of such statutes has not been reviewed in the recent past, and it may be questioned whether the statutes could withstand an equal protection attack. But see Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (1981) (upholding the validity of statutory rape offense under which only males are criminally liable).

The last reported case dealing with a seduction-like incident occurred in 1928. The Court held that it was "immaterial that the girl gave her consent to accompany the parties charged, or that she voluntarily left home, if she was conveyed away against the will of her parents . . . ." State v. Morton, 144 S.C. 116, 118, 142 S.E. 245, 245 (1928). This decision conforms with former § 16-15-30 which stresses the idea that only parental consent, rather than that of the child, constitutes a valid defense in such an action.

The seduction under promise of marriage provisions of § 16-15-50 do not contain any age limitations for the female victim, and appear to be for the protection of women who agree to sex under a promise of marriage and thereafter are jilted by a male over the age of 16. If the female is less than 16 years of age, the statute proscribing criminal sexual conduct with minors may have been violated, depending primarily on the age of the male. S.C. Code Ann. § 16-3-655 (Supp. 2012). See Chapter II.C.2.b.(1), Criminal Sexual Conduct With Minors. There is also a civil action that can be brought by the female "victim," her parents or her guardian. The Code provides certain defenses to the criminal prosecution of this offense, including the provision that if the defendant should contract to marry the victim at any time either before or subsequent to conviction then the criminal proceedings would be stayed. In addition, under this section the testimony of the victim must be corroborated. This corroboration, however, need be no more than the similarity of appearance between the defendant and the child of the victim born as a result of the seduction. State v. Heavener, 146 S.C. 138, 143 S.E. 674 (1928). If the defendant can show that at the time of the alleged seduction, the victim was of a "lewd and unchaste" nature, then the defendant is entitled to an acquittal. Id. at 150, 143 S.E...