Consent Laws
South Carolina

Last Updated: April 2023
Defining Consent Answer

How is consent defined?

South Carolina does not specifically define “consent.” A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

  • (a) The actor uses aggravated force to accomplish sexual battery;
  • (b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, trafficking in persons, robbery, extortion, burglary, housebreaking, or any other similar offense or act; or
  • (c) The actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance.  S.C. Code Ann. § 16-3-652.

Aggravated force” means that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon. S.C. Code Ann. § 16-3-651(c).

A person is guilty of criminal sexual conduct in the second degree if the actor uses aggravated coercion to accomplish sexual battery. S.C. Code Ann. § 16-3-653(1).

 

Aggravated coercion” means that the actor threatens to use force or violence of a high and aggravated nature to overcome the victim or another person, if the victim reasonably believes that the actor has the present ability to carry out the threat, or threatens to retaliate in the future by the infliction of physical harm, kidnapping or extortion, under circumstances of aggravation, against the victim or any other person. S.C. Code Ann. § 16-3-651(b).

A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

  • (a) The actor uses force or coercion to accomplish the sexual battery in the absence of aggravating circumstances; or
  • (b) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery. S.C. Code Ann. § 16-3-654.

 “Mentally defective” means that a person suffers from a mental disease or defect which renders the person temporarily or permanently incapable of appraising the nature of his or her conduct. S.C. Code Ann. § 16-3-651(e).

 “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct whether this condition is produced by illness, defect, the influence of a substance or from some other cause. S.C. Code Ann. § 16-3-651(f).

Physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. S.C. Code Ann. § 16-3-651(g).

Does the definition require "freely given consent" or "affirmative consent"?

No.






Capacity to Consent Answer

At what age is a person able to consent?

16 years old. S.C. Code Ann. § 16-3-655.

Does difference in age between the victim and actor impact the victim's ability to consent?

Yes. A person is guilty of criminal sexual conduct with a minor in the second degree if the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age; or the actor engages in sexual battery with a victim who is at least 14 years of age but who is less than 16 years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. However, a person may not be convicted of a violation of the provisions of this item if he is 18 years of age or less when he engages in consensual sexual conduct with another person who is at least 14 years of age. S.C. Code Ann. § 16-3-655(B).

A person is guilty of criminal sexual conduct with a minor in the third degree if the actor is over fourteen years of age and the actor willfully and lewdly commits or attempts to commit a lewd or lascivious act upon or with the body, or its parts, of a child under sixteen years of age, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the actor or the child. However, a person may not be convicted of a violation of the provisions of this subsection if the person is eighteen years of age or less when the person engages in consensual lewd or lascivious conduct with another person who is at least fourteen years of age. S.C. Code Ann. § 16-3-655(C).

Does elderly age impact the victim’s ability to consent?

No.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

Yes. A person is guilty of criminal sexual conduct if the actor engages in sexual battery with the victim and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery. S.C. Code Ann. § 16-3-654(1)(b).

  • Mentally defective” means that a “person suffers from a mental disease or defect which renders the person temporarily or permanently incapable of appraising the nature of his or her conduct.”
  • Mentally incapacitated” means that a “person is rendered temporarily incapable of appraising or controlling his or her conduct whether this condition is produced by illness, defect, the influence of a substance or from some other cause.”
  • Physically helpless” means that a “person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.”

S.C. Code Ann. § 16-3-651(e)-(g).

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

Yes.

A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery. S.C. Code Ann. § 16-3-654(1)(b).

Does consciousness impact the victim’s ability to consent?

Yes. A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. S.C. Code Ann. § 16-3-654(1)(b).

Does intoxication impact the victim’s ability to consent?

Yes. A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and the actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance. S.C. Code Ann. § 16-3-652(1)(c).

Does the relationship between the victim and actor impact the victim’s ability to consent?

Yes. There are limitations on liability for a person if the victim is the legal spouse of the actor. See S.C. Code Ann. § 16-3-658. Spousal sexual battery is also defined separately for instances where sexual battery accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together. A person can then not be imprisoned more than ten years. See S.C. Code Ann. § 16-3-615(A).

Additionally a person is guilty of criminal sexual conduct with a minor in the second degree if the actor engages in sexual battery with a victim who is at least 14 years of age but who is less than 16 years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.  S.C. Code Ann. § 16-3-655(B)(2).

A person affiliated with a public or private secondary school in an official capacity who engages in sexual battery with a student enrolled in the school who is 16 or 17 years of age, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony. S.C. Code 1976 § 16-3-755(B).

A person affiliated with a public or private secondary school in an official capacity that engages in sexual battery with a student enrolled in the school who is 18 years of age or older, where aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a misdemeanor. S.C. Code 1976 § 16-3-755(C).

A person affiliated with a public or private secondary school in an official capacity and with direct supervisory authority over a student enrolled in the school who is 18 years of age or older, and the person affiliated with the public or private secondary school in an official capacity engages in sexual battery with the student, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony. S.C. Code 1976 § 16-3-755(D).

  • Sexual battery” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.” S.C. Code 1976 § 16-3-755(A)(5).
  • Student” means a person who is enrolled in a school. S.C. Code 1976 § 16-3-755(A)(6).

§ 16-3-755(B-D) do not apply if the person affiliated with a public or private secondary school in an official capacity is lawfully married to the student at the time of the act. S.C. Code 1976 § 16-3-755(E).






Defenses Answer

Is consent a defense to sex crimes?

Yes, though a minor is unable to consent when under the age of 16. See State v. Alexander, 303 S.C. 377, 381, 401 S.E.2d 146, 149 (1991).

Is voluntary intoxication a defense to sex crimes?

No. State v. Vaughn, 268 S.C. 119, 125 (S.C. 1977). (“[V]oluntary intoxication, where it has not produced permanent insanity, is never an excuse for or a defense to crime, regardless of whether the intent involved be general or specific.”)









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