Third degree sexual exploitation of a minor defined; penalties; exception

(A) An individual commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor or a morphed image of an identifiable minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation. (B) In a prosecution pursuant to this section, the trier of fact may infer that a participant in sexual activity or a state of sexually explicit nudity depicted as a minor through its title, text, visual representation, or otherwise, is a minor. (C)(1) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for: (a) not more than ten years if the person possesses one to twenty-five or less visual representations or images; (b) one to ten years if the person possesses twenty-six images to two hundred fifty visual representations or images; and (c) two to ten years if the person possesses more than two hundred fifty visual representations or images. (2) A person who violates the provisions of this section and previously has been convicted of an offense that required the person to register as a sex offender in accordance with Section 23-3-430, upon conviction, must be imprisoned for a minimum of five years. (3) For any violation of the provisions of this section, no part of the minimum sentence may be suspended nor is the person convicted eligible for parole until he has served the minimum sentence. (D) This section does not apply to an employee of a law enforcement agency, including the State Law Enforcement Division, a prosecuting agency, including the South Carolina Attorney General's Office, or the South Carolina Department of Corrections who, while acting within the employee's official capacity in the course of an investigation or criminal proceeding, is in possession of material that contains a visual representation of a minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation. The employee's official capacity in the course of such investigation or criminal proceeding includes making material available for inspection to the defendant's counsel in response to discovery requests. (E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor and the offense is the minor's first charge related to a morphed image of an identifiable minor. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.