C. Criminal Sexual Assault

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

C. Criminal Sexual Assault

1. Introduction and Common Law Offenses

a. Common Law Offenses Still in Effect

In 1977 the Criminal Sexual Conduct statute, S.C. Code Ann. §§ 16-3-651-659.1 (2003) became effective, and earlier statutes referring to rape and its punishment, S.C. Code Ann. §§ 16-3-630 and 640 (1976), as well as carnal knowledge of a woman child, S.C. Code Ann. § 16-3-650 (1976), were repealed. 1977 Act No. 157, § 12, 60 St. at L. 336. Both rape and carnal knowledge of a woman child are common law offenses, traceable to the statutes of 13 Edward I, ch. 34 (1285) and 18 Elizabeth, ch. 7 (1576) respectively, and the Assembly of the Province of South Carolina adopted both on December 12, 1712. II St. at L. 401, 422, 499. State v. Whitener, 228 S.C. 244, 271, 89 S.E.2d 701, 714, cert denied, 350 U.S. 861 (1955). There is a presumption against change of the common law by statute.

[I]t is not presumed that the Legislature intended to abrogate or modify a rule of the common-law by the enactment of a statute upon the same subject; . . . it is rather to be presumed that no change in the common-law was intended unless the language employed clearly indicates such an intention; . . . rules of the common-law are not to be changed by doubtful implication, or overturned except by clear and unambiguous language.

Nuckolls v. Great Atl. & Pac. Tea Co, 192 S.C. 156, 161, 5 S.E.2d 862, 864 (1939).

Because the 1977 Act explicitly repealed only the statutory offenses of rape and carnal knowledge of a woman child, it appears that the common law crimes are still in effect. It is clear that in drafting this Act, the Legislature did know how to repeal a common law rule when it wanted to. Section 16-3-659 explicitly makes inapplicable the common law rule as to incapacity of boys less than fourteen years of age. Nonetheless, another commentator has concluded that the Act should be considered as a repeal of the common law offenses. Annual Survey of South Carolina Law, Criminal Law, 30 S.C. L. Rev. 45, 54 (1979).

In a controversial session, the Legislature further amended the statute in 2006 to add capital punishment for second offender child molesters of children under the age of 11. The statute provides for the imposition of the punishment if the defendant commits a sexual battery upon a child less than 11 years of age, the battery constituted sexual or anal intercourse or the intrusion of an object into the genital or anal opening, and the defendant has a prior conviction (adult or juvenile) for the commission of an offense involving a similarly defined sexual battery on a child less than eleven years of age. S.C. Code Ann. § 16-3-655(D)(1) (Supp. 2012).

The amended statute incorporates the existing capital punishment procedures when the state seeks the death penalty for a second offender child rapist. Statutory aggravating and mitigating circumstances are listed in the statute and there are some differences from those listed under the capital murder statutes. Essentially, the aggravating circumstances unique to this crime are: (1) the victim's resistance is overcome by force; (2) the victim was prevented from resisting because the actor was armed with a deadly weapon, and (3) the victim was prevented from resisting because of threats of great bodily harm accompanied by the apparent ability to inflict such harm. S.C. Code Ann. § 16-3-655(E)(2)(a)(i), (ii) & (iii) (Supp. 2012).

The trial jury must make a finding of fact beyond a reasonable doubt that the offender committed the offense in the manner outlined in the statute (genital or anal intrusion) and that the prior offense contained the same conduct. If the prior offense occurred prior to the amendment of the statute, the jury must make a specific finding that the prior offense constituted an offense involving genital or anal intrusion. This suggests that trials for the foreseeable future would constitute, in effect, two factual determinations - whether the offender committed the charged offense and what conduct the offender committed in the prior conviction.

At the time of publication, the punishment had not yet been imposed on a defendant and therefore not subjected to legal challenge. The constitutionality of the statute is suspect. Imposition of the death penalty for rape of an adult woman was abrogated in Coker v. Georgia, 433 U.S. 584 (1977). The Court in Coker found "with respect to rape of an adult woman . . . [w]e have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment" Id. at 592. The issue for our Court, and perhaps ultimately the United States Supreme Court, is whether there is a different standard to be applied when the victim of the rape is a child.

b. Common Law Rape

The repealed statute did not afford a very comprehensive definition of rape; it simply referred to the ravishing of a woman without consent or with force. S.C. Code Ann. § 16-3-630 (1976) (repealed 1977) (see immediately preceding subsection). The words "ravish" and "rape" are apparently used interchangeably by the South Carolina Supreme Court; indeed the Court has noted that the terms are synonymous. State v. Tuckness, 257 S.C. 295, 299, 185 S.E.2d 607, 608 (1971).

The elements of rape include carnal knowledge of a female, the use of force by the male, an intent to have intercourse, and a lack of consent by the victim. While the common law offense of rape can be committed only by a male against a female, a female could be convicted as an accomplice. E.g., State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979). At common law, a sexual assault on a male could be treated as an aggravated assault, such as assault and battery of a high and aggravated nature, or as sodomy or buggery. Perkins and Boyce, 465.

(1) Carnal Knowledge

Carnal knowledge of the female victim by the male is an essential element of rape. State v. Wyatt, 221 S.C. 407, 70 S.E.2d 635 (1952). Carnal knowledge requires some degree of penetration of the female genital organ by the male genital organ. Any penetration, however slight, is sufficient. Id.; State v. Le Blanc, 5 S.C.L. (3 Brev. 339 (1813). It is not necessary for the state to prove emission. State v. Worthy, 239 S.C. 449, 123 S.E.2d 835 (1962), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating doctrine of in favorem vitae).

When originally enacted in 1977 the capital punishment statute listed "rape" as a factor in aggravation of punishment. S.C. Code Ann. § 16-3-20(C)(a)(1)(a) (1985). It was subsequently amended to "criminal sexual conduct in any degree." Id. (Supp. 1987). In a capital case tried prior to the amendment the terms were held to be the functional equivalent of each other, and evidence of fellatio was held to be adequate to establish the aggravating factor. State v. Middleton, 295 S.C. 318, 368 S.E.2d 457, cert. denied, 488 U.S. 872 (1988). Middleton relied on State v. Stewart, 283 S.C. 104, 320 S.E.2d 447 (1984), discussed infra.

(2) Consent

"Consent on the part of the female being fundamentally inconsistent with the concept of rape, and indeed with its very definition, it is ordinarily an essential element of the crime that the act be committed without the consent of the female, or, as it is otherwise expressed, against her will." State v. Whitener, 228 S.C. 244, 273, 89 S.E.2d 701, 716, cert denied, 350 U.S. 861 (1955). If the female did voluntarily consent, the crime of rape was not committed. Consent is not an affirmative defense to be established by a preponderance of the evidence by the defendant; rather its absence must be established beyond a reasonable doubt by the State. State v. Taylor, 57 S.C. 483, 488-89, 35 S.E. 729, 731 (1900).

The consent must be voluntarily given. "[I]f the consent is gained by force, although there is consent but nevertheless against her will and desire, brought about by violence, force or threats of violence, then the sexual act is without the consent of the female." State v. Brooks, 235 S.C. 344, 355, 111 S.E.2d 686, 692 (1959), cert. denied, 365 U.S. 300 (1961) (quoting approvingly from the trial court's instructions), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating doctrine of in favorem vitae).

For a brief consideration of situations in which consent is obtained by fraud or in which the women is unaware that a sexual act is taking place, see the end of the following subsection (3) Force.

(3) Force

Force by the defendant is another element of rape. State v. Thorne, 239 S.C. 164, 167, 121 S.E.2d 623, 624 (1961) cert. denied, 368 U.S. 979 (1962), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating doctrine of in favorem vitae). "But the force may be actual or constructive, and the degree of force and of resistance required to characterize the act as rape must, of necessity, vary with the circumstances of the particular case. Thus sexual intercourse with a woman who is unconscious or insane is rape, and neither force nor resistance is necessary to constitute the offense." State v. Whitener, 228 S.C. 244, 273, 89 S.E.2d 701, 716 (1955), cert denied, 350 U.S. 861 (1955). For a discussion of the necessity of evidence of force see Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994) (reversing rape conviction in which there was evidence of lack of consent but no evidence of force, which was required by statute).

The victim need not resist to the utmost of her physical ability. It is sufficient that she "show her unwillingness by word and act." State v. Sudduth, 52 S.C. 488, 492, 30 S.E. 408, 409 (1898). Force and resistance need not be established if the victim is under the age of consent. Whitener, at 273, 89 S.E.2d at 716. An under age female is deemed to be legally incapable of giving consent. State v. Haddon, 49 S.C. 308, 27 S.E. 194 (1897). In a case...