In South Carolina, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 15), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in South Carolina and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement or molestation laws. And for information about rape between spouses, see Marital Rape Laws.
Statutory rape is prosecuted under South Carolina’s sexual assault laws. Penalties depend on the age of the parties and the type of sexual contact that occurred, as described below.
First degree criminal sexual conduct with a minor occurs when there is sexual penetration (however slight, with an object or body part), intercourse, oral sex, or anal sex between a minor who is 10 or younger, and a defendant of any age. This offense is a felony, and a conviction can result in 25 years or more in prison without the possibility of parole. (S.C. Code § 16-3-655 (2018).)
Second degree criminal sexual conduct with a minor occurs when there is sexual penetration, intercourse, oral sex, or anal sex between a minor who is 11, 12, or 13, and a defendant of any age. It also includes penetration, intercourse, oral sex, or anal sex between a 14- or 15-year-old minor, and a defendant who is in a position of authority or older than the minor (when the marital exemption, described below, does not apply). This offense is a felony and can incur up to 20 years in prison. (S.C. Code § 16-3-655 (2018).)
Third degree criminal sexual conduct with a minor occurs when a defendant who is 18 years old or older commits or attempts to commit lewd acts on a minor under 16 years old. A lewd act includes sexual contact meant to arouse or gratify the parties’ sexual desires. This offense is a felony, and a conviction can result in up to 15 years in prison. (S.C. Code § 16-3-655 (2018).)
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including statutory rape) register as sex offenders for specified periods of time. For example, a conviction for first degree criminal sexual conduct with a minor incurs a lifetime status as a registered sex offender. (S.C. Code § 23-3-430 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” But, under South Carolina law, some other defenses can apply in statutory rape cases.
South Carolina has a marital exemption for statutory rape that allows consensual sex between a married female (14 or older) and her adult spouse, or a married male (16 or older) and his adult spouse, even though their ages would prohibit it if they were not married.
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15-year-old willingly has sex with Tony, her 23-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in South Carolina, Tony need not fear criminal charges for having consensual sex with Jen. This is because South Carolina has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In South Carolina, there is a Romeo and Juliet exemption for consensual sex between a minor who is 14 or older and a defendant who is 18 years old or younger. For example, a 15-year-old who engages in consensual sex with a 17-year-old cannot be charged with statutory rape.
However, sex with a minor younger than 14 is always a felony, no matter the age of the defendant. A conviction for sexual intercourse with a 13-year-old, for example, can result in up to 20 years in prison.
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But in South Carolina, even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. The law can change at any time, and there may be defenses that apply to your statutory rape charges. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case. An experienced attorney can also often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated July 27, 2018