Complaints against teachers and other school employees for sexual misconduct
involving students occur more often than people realize. Until recently
South Carolina law did not specifically prohibit teachers and other school
employees from having sex with students. However there is now a law prohibiting
this type of conduct.
Teachers and school employees themselves can always be prosecuted for sexual
misconduct with a student under normal child molestation laws. This includes
prosecutions for criminal sexual conduct with a minor 1st, 2nd or 3rd degree. However in order to support a prosecution under one of these statutes
the student must be 15 years old or younger.
Many high school age students are between 16-18+ years of age. They are
legally able to consent to a sexual activity. This was seen as a loophole,
and so a special law was created to outlaw sex between students and certain
This law is S.C. Code § 16-3-755. This was created in 2010. It creates
three potential penalty levels. Depending on the exact circumstances violators
can face a maximum penalty of either 30 days, or a maximum penalty of
up to five years. Violations do not automatically trigger sex offender
registration (although the sex offense registration law S.C. Code §
23-3-430(D) allows for the possible registration requirement forany offense).
First, restrictions under this law only apply to the following types of
- Substitute Teacher
- Teacher’s Assistant
- Student Teacher
- Law Enforcement Officer
- School Bus Driver
- Guidance Counselor
Restrictions can apply to those associated in one of these capacities in
a public or private junior high school or high school. There is no requirement
that the individual be employed by the school. Student teachers, resource
officers, unpaid athletic coaches, etc., would all be covered. Notably
absent from the list are support staff such as janitors, secretaries,
groundskeepers, maintenance staff, and cafeteria workers. Those types
of workers are permitted to engage in otherwise lawful sexual activity
The only students covered under this law are those who are 16 or older.
Younger students, who cannot legally consent to sexually activity, are
covered by the criminal sexual conduct with a minor law. That law clearly
prohibits any sexual contact by any adult with a child 15 or younger.
This law also only applies to situations that are consensual, without any
type of aggravated coercion or aggravated force. If there is aggravated
coercion (such as a threat) or aggravated force (such as physical violence),
then laws prohibiting such conduct as rape (criminal sexual conduct),
or assault would apply.
Finally, the statute only applies to conduct involving a “sexual
battery”. Without getting to far into the details, this involves
activities most people would consider “sex”, but doesn’t
cover all lesser-activities such as kissing or fondling.
Here are the three penalty tiers:
- 16 or 17 year old student, it is a felony that carries up to five years
- 18 years old or older, no direct supervisory authority over student (so
for example, not the student’s teacher, but another teacher in the
school), it’s a misdemeanor that carries a possible sentence of
up to thirty days
- 18 years old or older, with direct supervisory authority (so for example
the student’s teacher or their bus driver), it is a felony that
carries up to five years
What to do if investigated for violation
If you are a teacher or other school employee and have been accused of
sexual activity with a student the first step is to remain silent. Do
not agree to meet with or discuss the allegation with school administrators,
police, or anyone else. Do not discuss the allegations with the child’s parents.
Your first step should be to retain an attorney. This is to help ensure
that your rights are protected, and that you do not inadvertently say
or agree to anything that could result in criminal charges being brought
How these charges are defended
The penalties for violations of this law in this article are the maximum
possible. The charges can be reduced or minimized.
There are two components to the defense. First, we want to investigate
the factual allegations. What can the prosecutor prove? To determine this
we not only obtain copies of relevant police and school reports, we also
employ our own investigator to try to uncover evidence that is helpful
for the defense.
The other component is to demonstrate, when necessary, that our client
is not a danger to society. If there was a violation of the law, perhaps
it can be explained by a mental health condition such as depression or
anxiety. There may be recommended treatments that can be followed. As
appropriate we can utilize expert witnesses such as a forensic psychologist.
Of course some allegations don’t involve mental health issues (such
as when there isn’t much of an age difference between the parties).
Understanding media attention
Arrests and prosecutions under this section are frequently covered by the
local news. It would be expected to see television cameras in the courtroom
for the bond setting, and for reporters to seek comment from the accused.
The best course of action when approached by the media is typically “no
comment.” Do not participate in discussions on social media, and
it is recommended to disable all online profiles (such as Facebook).