COLUMBIA -- A group of prosecutors and lawmakers is seeking to close a loophole in South Carolina law they say limits their ability to try the most egregious examples of fatal abuse and neglect against children.
Since 1984, South Carolina law has allowed prosecutors two special sentences against adults who abuse children to the point of death:
A 20-year minimum sentence against anyone who causes the death of a child due to abuse or neglect under circumstances "manifesting an extreme indifference to human life."A 10- to 20-year sentence for anyone found to have knowingly aided or abetted abuse that resulted in a child's death.
The issue is that the law only applies for victims under the age of 11. And while it hasn't demonstrably resulted in any child abusers going free, it has certainly made prosecutors' jobs securing a murder conviction much more difficult.
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Because of their daughters' age, a case against Gaffney couple David Eugene and Bobbie Jo Baynard for the death of their 14-year-old special needs daughter Heather was tried outside of the homicide by child abuse statutes, and required the prosecuting attorneys to convince a jury to convict on separate charges of child abuse and murder. They were convicted in October and sentenced to life in prison.
Another case in the Lowcountry last year against a mother who left her daughter to die in a hot car while she allegedly smoked methamphetamine was tried similarly due to the fact the child was 13 and, therefore, above the cutoff for homicide by child abuse.
That in itself is a problem, said 7th Circuit Solicitor Barry Barnette, since murder requires a high burden of proof to convict, particularly regarding someone's intent to murder a child through abuse or neglect.
And while he was able to secure a murder conviction against the Baynards, in some cases they are only able to convince a jury of a lesser charge, potentially letting parents who kill their children off on lighter sentences than they'd receive if the child was a few years younger.
"We got the conviction," he said of the Baynard case, which he prosecuted. "But if I hadn't have had that kind of evidence, or if I didn't have those kind of witnesses, I would never have gotten the conviction for murder."
While child deaths by abuse and neglect were the lowest in 2024 than they'd been in years, according to state data, Barnette has noticed numerous instances where victims of abuse were regularly above the 11-year-old cutoff, adding complexities to trying murder cases at a time where the state is already experiencing a significant judicial backlog.
This year, lawmakers hope to fix the problem. This month, House Speaker Pro Tempore Tommy Pope, R-York, and Rep. Travis Moore, R-Roebuck, each prefiled legislation to raise the maximum age under the law from 11 to 18 -- a change they hope will be used to hold abusive adults accountable with sentences commensurate with their crimes.
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It would be the second time they've tried to raise the age. While three similar bills were introduced last session -- one of which passed the Senate unanimously -- the bill never got a hearing in the House of Representatives, a situation Moore said was likely due to a lack of awareness around the issue.
"A lot of things happen down there and it all requires some type of attention to get some momentum, to get scheduled for hearings and move through the one chamber and the other," said Moore. "What's different about this year compared to last year is we've had several incidents around the state where this came up."
It is unclear whether there will be opposition to the bill. Moore said the legislation could remove the ambiguity that is often involved in trying murder cases, where a prosecutor must prove a crime was committed with intent of malice and the forethought to take another person's life.
In cases of abuse and neglect, many defendants may state that the death of their child might not have been the intent in the course of their actions. One 2021 homicide by child abuse conviction in the Upstate involved a father who left his child to die in a burning car during a police pursuit; he later said he believed officers would rescue the child.
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Another homicide by child abuse case in the Upstate involved a 6-year-old who died of a Benadryl overdose after one of his foster parents gave him enough pills to "kill an adult man" in an effort to calm his hyperactivity, according to police.
Moore said he hopes his bill and others will remove that ambiguity from child abuse cases.
"It'd be easier for the argument from the defendant side to be that they never intended this to happen, that a death was a result of abuse or neglect and that murder shouldn't apply," he said. "Well, this will close that gap and give prosecutors that tool."