South Carolina § 44-48-120 - Petition for release; hearing ordered by court; examination by qualified expert; burden of proof.

§ 44-48-120. Petition for release; hearing ordered by court; examination by qualified expert; burden of proof.

(A) If the Office Director of the Office of Mental Health determines that the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, the office director must certify such determination in writing with the specific basis thereof, authorize the resident to petition the court for release, and notify the Attorney General of the certification and authorization. Upon receipt of the certification and authorization, the resident or the Attorney General may file a petition for release, which must be served upon the court and the Attorney General, or on opposing counsel if filed by the Attorney General. The Attorney General must notify the victim of the proceeding.

(B) The court, upon receipt of the petition for release filed pursuant to subsection (A), must order a hearing within thirty days unless the Attorney General, with notice to the resident, requests an evaluation by a qualified evaluator as to whether the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, or the resident or the Attorney General requests a trial before a jury. The Attorney General must represent the State and has the right to have the resident examined by a qualified evaluator chosen by the State. If the Attorney General retains a qualified expert who concludes that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, if released, is likely to commit acts of sexual violence, the petitioner may retain a qualified expert of his own choosing to perform a subsequent examination. In the case of an indigent petitioner who would request an independent qualified evaluator, the indigent petitioner must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs for the evaluator. If the court determines that the services are necessary and the requested compensation is reasonable, then the court must authorize, in written order prior to any fees or expenses being incurred, the petitioner's attorney to obtain the services of an independent qualified evaluator to perform an evaluation or participate in the trial on the petitioner's behalf and authorize the payment from funds available to the Commission on Indigent Defense. All qualified evaluators are permitted to have reasonable access to the resident for the purpose of the examination, as well as reasonable access to all relevant medical, psychological, criminal offense, and disciplinary records and reports, and the court shall order the resident to comply with any reasonable testing and assessments deemed necessary by a qualified evaluator. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the resident's mental abnormality or personality disorder remains such that the resident is not safe to be at large and, that if released, is likely to commit acts of sexual violence.

HISTORY: 1998 Act No. 321, SECTION 1; 2004 Act No. 176, SECTION 1, eff February 18, 2004; 2010 Act No. 158, SECTION 5, eff May 12, 2010; 2023 Act No. 19 (S.146), SECTION 10, eff May 16, 2023.

Code Commissioner's Note

At the direction of the Code Commissioner, certain references in the S.C. Code to the State Department of Mental Health, South Carolina Mental Health Commission, Department of Disabilities and Special Needs, Department of Disabilities and Special Needs Commission, Department of Alcohol and Other Drug Abuse Services, and other related terms were changed to reflect the restructuring of these agencies into component offices under the Department of Behavioral Health and Developmental Disabilities, pursuant to 2025 Act No. 3, SECTION 18.

Effect of Amendment

2023 Act No. 19, SECTION 10, rewrote the section.