Posted on Sat, Jul. 15, 2006

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Attorney general challenges new law

McMaster says part of S.C. sex offender legislation is unconstitutional

By PAGE IVEY

The Associated Press

At least one provision of the state’s new sex offender law is unconstitutional, South Carolina Attorney General Henry McMaster said.

The so-called “Romeo” clause, which exempts men 18 and younger who have consensual sex with 14- and 15-year-old girls from second-degree criminal sexual conduct charges, is not constitutional, McMaster wrote in an opinion released Friday afternoon.

The provision, as written, applies only to male defendants, which violates the equal protection clause of the U.S. Constitution, McMaster said.

Also, McMaster said the clause includes a condition that a male 18 or younger could claim as a defense that he thought his female partner was old enough to consent to sex. That might not be constitutional because the state constitution says no unmarried female younger than 14 can consent to sex, McMaster said.

At least one state prosecutor has said that while he hopes McMaster’s opinion is correct, judges are not required to follow it.

“The opinion that really matters is the opinion of the appellate courts of South Carolina,” Upstate prosecutor Trey Gowdy said. “The Legislature could have made it easier for judges by making it more clear.”

A few years ago, state law increased the age of consent for females to 16, but the Romeo clause of the new law lowers it to 14 if the female’s partner is 18 or younger.

The attorney general’s office took issue with the way the provisions were added to the law, which had a primary purpose of adding repeat child molesters to the list of criminals eligible for the death penalty.

“At apparently the eleventh hour, the so-called ‘Romeo’ provision was inserted,” McMaster said in his opinion, which will be published along with the law changes, but cannot be used to charge suspects.

“Had we known about that, we would have opposed it,” McMaster’s spokesman Trey Walker said of the Romeo clause and mistaken age provisions.

McMaster is recommending lawmakers strike both the Romeo clause and the mistaken age provisions from the law next session.

The new law also provides for electronic monitoring of offenders and requires a minimum of 25 years in prison for anyone convicted of criminal sexual conduct with a child 10 or younger. Someone twice convicted of assaulting a child 10 or younger could face the death penalty.

Walker said the attorney general supports that portion of the law.