Jessica's Law: A blessing or a curse?

A new law designed to protect South Carolina children from sexual predators actually lowers the age of consent from 16 to 14 in some cases and puts a greater burden on prosecutors in others.

Jessica's Law, which went into effect Saturday, allows prosecutors to seek the death penalty for repeat child offenders in certain cases. But it also contains a "Romeo clause" that makes it legal for people age 18 and under to have sex with children as young as 14, and creates a "mistake of age" defense for adult offenders.

It's the latter that's causing the most concern for prosecutors because adults accused of having sex with a child under 16 can now say they believed the child was of age and juries must weigh that when considering innocence or guilt. Previously, such a defense was not allowed.

Seventh Circuit Solicitor Trey Gowdy said the law has several provisions that show that South Carolina is serious about protecting children from sex offenders."But these two parts send a message to the contrary," he said.

Sexual assaults against children are all too common in the Seventh Circuit, with about 400 cases pending. Gowdy has two attorneys dedicated to prosecuting sex crimes against children, and they deal only with cases in which the victim is younger than 12.

Gowdy said that the "mistake of age" clause will have a tremendous impact on prosecutions.

"I haven't heard anybody say they think this is a good idea," Gowdy said. "Most people who read the law think it only applies in cases where the victims are 14 or 15 years old, but it's ambiguous enough that some defense attorney will try to use it with victims who are 13, or 12 or younger."

The provision was tacked on as a House amendment in the hectic final days of the legislative session. Gowdy said there's no way such a crucial addition should have been made without going through the committee process.

"There was never a single hearing on the mistake of age defense," he said. "If it goes through the process and that's what the people want, OK. But there wasn't any debate."

Rep. Murrell Smith, R-Sumter, proposed the amendment but said that many people worked on it and that he wasn't sure how or when the single-sentence provision was added.

"In the haste of getting it passed, it got inserted in there," said Smith, an attorney. "There was a flurry of bills going back and forth and it became a nightmare to try to contain the different suggestions going into it."

Victim advocates also are up in arms over the new defense. Marlene Evans, the victim services director with the Safe Homes Rape Crisis Coalition in Spartanburg, said that older people can manipulate children who might not understand what is happening.

"And they could manipulate a jury as well," Evans said. "When children can't trust the adults around them, the law should protect them. This doesn't; it provides a loophole."

Evans said that the law has many good aspects. But she also expressed concern over lowering the age of consent to 14.

"The question is, is a 14-year-old able to weigh the consequences and make that kind of decision," she said. "Because there are consequences."

Gowdy said the age reduction is a disservice to the state's parents.

"For parents struggling to send the right message to their kids in a sex-obsessed world, the state of South Carolina now says it's alright for a 14-year-old to have sex," Gowdy said.

The law is named for 9-year-old Jessica Lunsford. A registered sex offender kidnapped, raped and killed the Florida girl last year.

Under the law, similar to those approved in other states, South Carolina prosecutors could seek the death penalty against someone twice convicted of sexually assaulting a child under the age of 11.

Smith said it's obvious that the Legislature would have to fine-tune the law when it reconvenes in January.

"There's going to have to be lots of cleanup," he said. "This is a good lesson about trying to deal with expansive issues in a short amount of time."

Robert W. Dalton can be reached at 562-7274 or bob.dalton@shj.com.