A judge has accused state probation officials of
overstepping their authority by requiring convicted sex offenders to get
treatment for their behavior without a court order.
In a ruling that could affect dozens of cases across the state, Circuit Court
Judge Jackson Gregory said the state Department of Probation, Pardon and Parole
Services has no right to impose extra conditions beyond those set by a judge.
The issue arose in Colleton County, where two men convicted of having sex
with underage girls were accused of violating the conditions of their probation
by refusing to attend sex offender counseling. Neither had been ordered to do so
by a judge.
The probation department routinely requires assessments and treatment for
people convicted of sex crimes, regardless of a court order. But Gregory said
state law does not give the agency that authority.
"If the probation agent sets the terms, they're both the judge and the jury,"
Gregory said.
The judge also took the rare step of trying to remove one man from the
state's sex offender registry, which tracks convicted rapists, pedophiles and
others guilty of sex-related crimes. Whitney Grant of Walterboro had been
convicted of having sex with a 13-year-old girl when he was 19. Gregory later
reversed his decision after learning he lacked the authority to pull Grant from
the list.
Peter O'Boyle, spokesman for the probation department, said agency officials
have not had time to assess how the judge's ruling will affect the department's
handling of the 1,300 sex offenders it monitors.
"I can't tell you now what our next step will be," he said. "Sex offender
counseling is a big part of our rehabilitation efforts."
State Rep. Chip Limehouse, R-Charleston, disagrees with the judge's
interpretation but said lawmakers may need to make some changes to ensure there
is no room for confusion. "Certainly, probation has to have the latitude to
order treatment," he said.
O'Boyle said he did not know the number of sex offenders required by the
department to attend counseling or treatment programs without a specific court
order. "A lot of judges leave it up to us to do the assessment and make the
determination (for treatment)," he said.
Gregory did not make such treatment a condition of probation when he
sentenced Grant, now 23, to serve a year in prison and three years on probation
for second-degree criminal sexual conduct with a minor. Nor did the judge impose
that requirement on Shermaine Larry, 21, of Walterboro, whom Gregory sentenced
to 2-1/2 years of probation after Larry pleaded guilty to assault and battery of
a high and aggravated nature for having sex with a 15-year-old girl.
Incident reports in both cases say the men were caught sneaking into the
homes of victims after the girls invited them in. Grant was placed on the sex
offender registry. Larry was not. Both, however, were required to undergo
treatment for their behavior.
William Burke, a licensed professional counselor who specializes in sex
offender assessment and treatment, reported Grant and Larry to probation
officials after they failed to show up for treatment.
Burke said it has been common practice for the probation department to
require treatment. At least one other judge has issued rulings affirming the
state agency's power to impose such conditions, he said.
Gregory saw things differently. He not only sided with the defendants during
the Sept. 12 hearing but also ordered Grant removed from the sex offender
registry. Gregory said the facts of the case showed Grant's tryst with the
13-year-old was consensual. The age of consent in South Carolina is 16.
The judge declined to discuss the specifics of Grant's case, other than to
say, "There was a cultural aspect" to the case caused him to believe the man was
not dangerous.
Gregory later said he made a mistake and planned to rescind his order,
keeping Grant on the registry.
The judge stayed firm on his decision to remove the men from treatment,
saying the evidence in their cases didn't warrant such action and probation
officials "didn't have a right" to impose such orders. Gregory's ruling comes as
lawmakers across the nation are trying to tighten restrictions on sex offenders.
Without treatment, some studies suggest at least half of all offenders will
go on to commit new sex crimes. Studies also suggest that the recidivism rate
drops dramatically when offenders receive treatment that helps control their
desires and reduce their sex drive.
South Carolina law says the state probation director can develop policies and
procedures that "may enhance but must not diminish court imposed conditions."
Trey Walker, a spokesman for the state Attorney General's Office, said the
director has some discretion under the law, and mandating sex offender treatment
would seem a reasonable use of that authority.
Craig Jones, a Charleston criminal defense lawyer, sided with Gregory.
Ordering offenders to undergo costly and invasive treatment would seem to be a
function of sentencing, and something for the courts to decide, he said.
Laura Hudson, public policy coordinator for the South Carolina Victim
Assistance Network, said the probation department was doing nothing more than
carrying out the spirit of the law.
"The intent of the General Assembly and certainly the wishes of the public is
to have these people who are guilty of sex offenses have some sort of treatment
and probation authority over them," she said.
