Did South Carolina's 2023 change to the Sexually Violent Predator Act lower the standard for civil commitment?

Official title

Opinion interpreting the amended definition of "likely to engage in acts of sexual violence" contained in the Sexually Violent Predator Act.

Requester

Requested by Elizabeth Hutto, Esq., General Counsel, South Carolina Department of Mental Health.

Plain-English summary

The South Carolina Department of Mental Health's general counsel asked the Attorney General how to read a 2023 amendment to the Sexually Violent Predator Act. The Act sets up an involuntary civil commitment process for people convicted of sexually violent offenses who, because of a mental abnormality or personality disorder, are "likely to engage in acts of sexual violence" if not confined. In 2023 the Legislature rewrote the definition of that phrase to mean a person who "is predisposed to engage in acts of sexual violence and more probably than not will engage in acts of sexual violence to such a degree as to pose a menace to the health and safety of others." The department asked three things: how to interpret and apply the amended language, whether legislative intent should be used to read it, and whether the new "more probably than not" phrasing lowered the standard of proof to a preponderance of the evidence.

On the meaning of "more probably than not," the AG concluded the phrase does not require an expert to find a greater-than-50% statistical chance that the person will reoffend. The office surveyed how other states with similar language read it: courts in Missouri, Illinois, California, and Washington have rejected reducing the inquiry to a static actuarial score, instead requiring a commonsense judgment that weighs all factors bearing on risk. Reading the South Carolina statute the same way, the office stressed that the phrase "more probably than not" cannot be read in isolation; it is followed by "will engage in acts of sexual violence to such a degree as to pose a menace to the health and safety of others." So the focus is on whether the person is likely to reoffend to a degree that endangers others, weighing all variables, not on a bare statistical probability.

On whether to use legislative intent, the AG said the plain language of the Legislature's own definition is sufficient, and a court has no right to impose a different meaning on clear text. Even so, the office looked at the history the department provided (an explanatory document tied to a 2021 bill, H. 4086) and found it consistent with its reading: the change was meant to give court-appointed and independent evaluators a consistent standard of evaluation, not to alter the substantive standard.

On the burden of proof, the AG disagreed with the department's concern that adding "more probably than not" lowered the standard to a preponderance. The Act still requires, in § 44-48-100, that the court or jury find beyond a reasonable doubt that the person is a sexually violent predator, and the 2023 amendment did not touch that provision. The new language only clarifies one consideration in the definition of who qualifies, not the legal standard for commitment. As the office put it, had the Legislature intended such a dramatic change, it would have said so clearly.

What this means for you

Evaluators and mental health professionals in SVP cases: Based on this opinion, "more probably than not" is not a directive to find a 50%-plus actuarial score. The AG reads the statute to call for a holistic assessment of all risk variables, focused on whether the person is likely to reoffend to a degree that poses a danger to others.

Prosecutors and defense counsel: The opinion concludes the commitment standard remains proof beyond a reasonable doubt under § 44-48-100; the 2023 amendment did not convert it to a preponderance standard. The amended definition clarifies one element of who qualifies as a sexually violent predator, not the burden of proof.

The Department of Mental Health: The AG's view is that the amendment aimed to standardize how evaluators apply the definition, consistent with the explanatory material tied to the earlier bill, rather than to change the substantive test or the burden.

Common questions

Did the 2023 amendment lower the standard for committing someone under the SVP Act?
No. The AG concluded the burden remains proof beyond a reasonable doubt under § 44-48-100, which the 2023 amendment did not change.

Does "more probably than not" mean a more-than-50% chance of reoffending?
Not as a required statistic. The AG concluded the phrase does not require a finding that the statistical probability of reoffense exceeds fifty percent; the statute calls for weighing all variables to judge the person's likelihood of reoffending to a dangerous degree.

What does an evaluator focus on under the amended definition?
Whether the person is predisposed to acts of sexual violence and is likely to engage in them to such a degree as to pose a menace to the health and safety of others, considering all relevant factors, not a single actuarial number.

Why did the Legislature change the definition then?
The AG, relying on the materials the department provided, concluded the change was meant to give court-appointed and independent experts a consistent standard of evaluation, not to alter the substantive standard or the burden of proof.

Background and statutory framework

The Sexually Violent Predator Act, Chapter 48 of Title 44, creates an involuntary civil commitment process. Section 44-48-30(1) defines a "sexually violent predator" as someone convicted of a sexually violent offense who suffers from a mental abnormality or personality disorder making them likely to engage in acts of sexual violence if not confined. The 2023 amendment (2023 S.C. Acts 19) rewrote § 44-48-30(9) to define "likely to engage in acts of sexual violence" as being "predisposed" and "more probably than not" going to reoffend to a degree posing a menace to others. Section 44-48-100 sets the commitment standard at beyond a reasonable doubt.

For statutory construction, the AG relied on Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000), and the plain-meaning rule. It compared other states' similar statutes and cases: Underwood v. State, 519 S.W.3d 861 (Mo. Ct. App. 2017) (rejecting a required over-fifty-percent actuarial score under Mo. Ann. Stat. § 632.480), People v. Superior Ct. (Ghilotti), 27 Cal. 4th 888, 44 P.3d 949 (2002) (a "serious and well-founded risk" rather than a better-than-even chance), In re G.H., 279 Neb. 708, 781 N.W.2d 438 (2010) (interpreting Neb. Rev. Stat. Ann. § 83-174.01), and In re Commitment of W.Z., 173 N.J. 109, 801 A.2d 205 (2002) (interpreting N.J. Stat. Ann. § 30:4-27.26 to require a "highly likely" showing), illustrating the range of readings of comparable language.

Citations

• S.C. Code Ann. § 44-48-30(9) (amended definition of "likely to engage in acts of sexual violence")
• S.C. Code Ann. § 44-48-30(1) (definition of "sexually violent predator")
• S.C. Code Ann. § 44-48-100 (commitment standard: beyond a reasonable doubt)
• S.C. Code 44-48-20 (purpose of the Act)
• Mo. Ann. Stat. § 632.480; Neb. Rev. Stat. Ann. § 83-174.01; N.J. Stat. Ann. § 30:4-27.26 (comparable out-of-state statutes)
• Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000)
• Underwood v. State, 519 S.W.3d 861 (Mo. Ct. App. 2017)
• People v. Superior Ct. (Ghilotti), 27 Cal. 4th 888, 44 P.3d 949 (2002)
• In re Commitment of W.Z., 173 N.J. 109, 801 A.2d 205 (2002)
• In re G.H., 279 Neb. 708, 781 N.W.2d 438 (2010)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-interpreting-the-amended-definition-of-likely-to-engage-in-acts-of-sexual-violence-contained-in-the-sexually-violent-predator-act/
• Original PDF: https://www.scag.gov/media/ymhnfdm5/03508132.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

February 14, 2024

Elizabeth Hutto, Esq.
General Counsel

South Carolina Department of Mental Health
Post Office Box 485
Columbia, South Carolina 29202
Dear Ms. Hutto:

We received your letter requesting an opinion of this Office concerning “the interpretation and
application of the May 2023 amendment to the Sexually Violent Predator Act.” In your letter, you
refer to changes made to the definition of “likely to engage in acts of sexual violence” in section
44-48-30(9). Specifically, you ask:
1.

How to interpret and apply the amended statute?

2.

Should legislative intent be used to interpret the plain language of this
statute?

3.

If so, does legislative intent indicate that the standard of proof for the
definition of “likely to engage in acts of violence” under the Act is other
than a preponderance of the evidence?
Law/Analysis

Chapter 48 of title 44 of the South Carolina Code (2018 & Supp. 2023) contains the “Sexually
Violent Predator Act” (the “Act”). According to the Act, it aims to provide “a separate, involuntary
civil commitment process for the long-term control, care, and treatment of sexually violent
predators . . . .” S.C. Code 44-48-20 (2018). Once a person is convicted of a sexually violent
offense, “the agency with jurisdiction must give written notice to the multidisciplinary team
established in Section 44-48-50, the victim, and the Attorney General” within a specified
timeframe depending on the status of the person. S.C. Code Ann. § 44-48-40(A) (2018). The
multidisciplinary team reviews the person’s records and “must assess whether or not there is

probable cause to believe the person satisfies the definition of a sexually violent predator. If the
multidisciplinary team determines probable cause does exist, it must forward a report of the
assessment to the prosecutor’s review committee and notify the victim.” S.C. Code Ann. § 44-4850(A) (Supp. 2023). Then the prosecutor’s review committee decides whether probable cause
exists to believe the person is a sexually violent predator. S.C. Code Ann. § 44-48-60 (2018). If
the prosecutor’s review committee finds probable cause, “the Attorney General must file a petition
with the court in the jurisdiction where the person committed the offense and must notify the victim
that the committee found that probable cause exists.” S.C. Code Ann. § 44-48-70 (2018). If a court
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February 14, 2024

then finds probable cause after conducting a hearing, the person is taken into custody and where
they are at a minimum evaluated by a court appointed evaluator and may also be evaluated by an
independent evaluator at the request of either the person or the Attorney General. S.C. Code § 4448-80 (2018 & Supp. 2023). Finally, “[t]he court must conduct a trial to determine whether the
person is a sexually violent predator.” S.C. Code Ann. § 44-48-90. “The court or jury must
determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” S.C.
Code Ann. § 44-48- 100(A) (2018).
For purposes of the Act section 44-48-30(1) (2018) defines a “sexually violent predator” as a
person who:

(a) has been convicted of a sexually violent offense; and
(b) suffers from a mental abnormality or personality disorder that makes the
person likely to engage in acts of sexual violence if not confined in a secure
facility for long-term control, care, and treatment.

(emphasis added). After legislative amendments enacted in 2023, section 44-48-30(9) of the South
Carolina Code (Supp. 2023) defines “likely to engage in acts of sexual violence” as “that a person
is predisposed to engage in acts of sexual violence and more probably than not will engage in acts

of sexual violence to such a degree as to pose a menace to the health and safety of others.” 2023
S.C. Acts 19. You ask us to how to interpret and apply this definition as amended.
Initially, we note the rules of statutory interpretation, the primary of which “is to ascertain and
give effect to the intent of the legislature.” Mid-State Auto Auction of Lexington, Inc, v. Altman,
324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996) (citation omitted).
Under the plain meaning rule, it is not the court’s place to change the meaning
of a clear and unambiguous statute. In re Vincent J., 333 S.C. 233, 509 S.E.2d
261 (1998) (citations omitted). Where the statute’s language is plain and
unambiguous, and conveys a clear and definite meaning, the rules of statutory
interpretation are not needed and the court has no right to impose another
meaning. Id. at 233, 509 S.E.2d at 262 (citing Paschal v. State Election
Comm’n, 317 S.C. 434, 454 S.E.2d 890 (1995)). “What a legislature says in the
text of a statute is considered the best evidence of the legislative intent or will.
Therefore, the courts are bound to give effect to the expressed intent of the
legislature.” Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94
(5th ed. 1992).

Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).
The amended statute states the determination of whether a person is “likely to engage in acts of
sexual violence” depends on two factors: (1) whether they are “predisposed to engage in acts of

Elizabeth Hutto, Esq.
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February 14, 2024

sexual violence” and (2) they “more probably than not will engage in acts of sexual violence to
such a degree as to pose a menace to the health and safety of others.” According to Black’s Law
Dictionary, “predisposition” means “A person’s inclination to engage in a particular activity . . . .”
PREDISPOSITION, Black’s Law Dictionary (11th ed. 2019). Therefore, for a person to be
deemed a sexually violent predator under South Carolina law, a jury must find they are both the
type of person who is inclined to engage in acts of sexual violence and they more probably than
not will engage in such acts to such a degree that they are a danger to others. Our courts have yet
to address what is meant by the phrase “more probably than not.” It is tempting to presume “more
probably than not” means that a person has a statistical probability of re-offense of greater than
fifty percent. In our research, we found courts in states with similar language roundly reject
experts’ reliance on statistical probabilities to determine whether a person is likely to re-offend.
Missouri has a similarly worded statute requiring proof that the person’s mental abnormality
“makes the person more likely than not to engage in predatory acts of sexual violence if not
confined in a secure facility.” Mo. Ann. Stat. § 632.480 (West). Interpreting the phrase “more
likely than not,” the Missouri Court of Appeals noted “[a] percentage risk of over fifty percent as

determined by a static score or similar assessment has not been required by Missouri courts.
Underwood v. State, 519 S.W.3d 861, 877 (Mo. Ct. App. 2017). That court continued on to find
“[w]hen the percentage of risk is under fifty percent as determined by an assessment, other

variables may be considered to reach a conclusion that the defendant is ‘more likely than not’ to
engage in predatory acts of sexual violence.” Id. See also In re Det, of Haves, 321 Ill. App. 3d 178,
188, 747 N.E.2d 444, 453 (2001) (equating the statute’s use of the phrase “substantially probable”
to “much more likely than not,” but emphasizing “this definition cannot be reduced to a mere
mathematical formula or statistical analysis. Instead the jury must consider all factors that either
increase or decrease the risk of reoffending, and make a commonsense judgment as to whether a
respondent falls within the class of individuals who present a danger to society sufficient to
outweigh their interest in individual freedom.”).

Many courts addressing a person’s likelihood of engaging in future acts of sexual violence apply
a more wholistic approach. The Supreme Court of California interpreted its statute’s use of the
phrase “likely to engage in acts of sexual violence” as connoting
much more than the mere possibility that the person will reoffend as a result of
a predisposing mental disorder that seriously impairs volitional control. On the
other hand, the statute does not require a precise determination that the chance

of reoffense is better than even. Instead, an evaluator applying this standard
must conclude that the person is “likely” to reoffend if, because of a current
mental disorder which makes it difficult or impossible to restrain violent sexual
behavior, the person presents a substantial danger, that is, a serious and wellfounded risk, that he or she will commit such crimes if free in the community.

People v. Superior Ct, (Ghilotti), 27 Cal. 4th 888, 922, 44 P.3d 949, 972 (2002). See also In re
Meirhofer. 182 Wash. 2d 632, 645, 343 P.3d 731, 737 (2015) (stating “the SVP act does not limit

Elizabeth Hutto, Esq.
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February 14, 2024

experts to the results of actuarial tests” after previously indicating in another case that “more
probably than not” was equivalent to a probability of reoffending greater than fifty percent).

We believe our statute requires a similar interpretation. Our courts instruct: “A court should not
consider a particular clause in a statute as being construed in isolation, but should read it in
conjunction with the purpose of the whole statute and the policy of the law.” State v. Sweat, 379

S.C. 367, 377, 665 S.E.2d 645, 650-51 (Ct. App. 2008), affdas modified, 386 S.C. 339, 688 S.E.2d
569 (2010). Moreover, effect must be given to all of the words in a statute. Allen v. S.C. Pub.
Emp. Ben. Auth., 411 S.C. 611, 626, 769 S.E.2d 666, 674 (2015). Therefore, the phrase “more
probably than not” must not be read in isolation. These words “more probably than not” are
followed by “will engage in acts of sexual violence to such a degree as to pose a menace to the
health and safety of others.” Thus, the focus is not on the mere probability of a re-offense, but

also on the likelihood that the person will pose a threat to the health and safety of others. Thus,

when applying this definition to a person, the focus should not be on the statistical probability of
re-offense alone. Rather, the statute mandates consideration of all factors to determine the person’s
likelihood of engaging in acts of sexual violence to such a degree as to pose a risk to the health
and safety of others.

You ask about whether legislative intent should be used to interpret the amended definition of
“likely to engage in acts of violence.” We believe employing the plain language of the definition
provided by the Legislature is sufficient for interpreting this phrase. Fruehauf Trailer Co. v. S.C.
Elec. & Gas Co., 223 S.C. 320, 325, 75 S.E.2d 688, 690 (1953) (“The lawmaking body’s
construction of its language by means of definitions of the terms employed should be followed in
the interpretation of the act or section to which it relates and is intended to apply.”). Therefore,
we, like a court, do not feel we have the right to impose another meaning outside of what the
Legislature provided. Timmons v. S.C. Tricentennial Comm’n, 254 S.C. 378, 401 , 175 S.E.2d 805,
817 (1970) (“If a statute is clear and explicit in its language, then there is no need to resort to
statutory interpretation or legislative intent to determine its meaning.”).
Nonetheless, our courts recognize “[i]n some cases, legislative history may be probative in
determining the legislature’s intent.” Palmetto Co. v. McMahon, 395 S.C. 1, 5, 716 S.E.2d 329,

33 1 (Ct. App. 2011). As you mentioned in your letter, the Legislature amended the definition of
“likely to engage in acts of sexual violence” in 2023. Prior to this amendment, the Legislature
define this phrase as meaning “the person’s propensity to commit acts of sexual violence is of such
a degree as to pose a menace to the health and safety of others.” S.C Code Ann. § 44-48-30(9)
(2018). Along with your request, you included an explanatory document that you state was
provided to the House Judiciary Committee with the amendments to this statute pursuant H. 4086
proposed in 2021. The change to section 44-48-30(9) in H. 4086 appears substantively the same
as the amendments to this provision in the bill adopted by the Legislature in 2023. This document
explains the change to the definition of “likely to engage in acts of sexual violence” was “[t]o
provide court-appointed and independent experts a consistent standard of evaluation.” Id. This
explanation indicates to us that the Legislature wanted all evaluators to follow a consistent standard
when testifying as to whether a person is “likely to engage in acts of sexual violence,” rather than
a change to the standard.

Elizabeth Hutto, Esq.
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February 14, 2024

Moreover, while our courts never interpreted the former definition of “likely to engage in acts of

sexual violence,” we found other jurisdictions’ interpretations of language such as “propensity to
commit acts of sexual violence” varies. Similar to our prior definition, Nebraska statutorily defines
“likely to engage in repeat acts of sexual violence” as “the person’s propensity to commit sex
offenses resulting in serious harm to others is of such a degree as to pose a menace to the health
and safety of the public.” Neb. Rev. Stat. Ann. § 83-174.01 (West). A Nebraska court interpreted
this definition as requiring a medical expert to state it is “at least ‘probable,’ in other words, more

likely than not” that the person will re-offend. In re G.H., 279 Neb. 708, 718, 781 N.W.2d 438,
445 (2010). New Jersey, similarly defines “likely to engage in acts of sexual violence” as “the
propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to
the health and safety of others.” N.J. Stat. Ann. § 30:4-27.26 (West). The New Jersey Supreme
Court determined this standard requires the state to “prove that threat by demonstrating that the
individual has serious difficulty in controlling sexually harmful behavior such that it is highly
likely that he or she will not control his or her sexually violent behavior and will reoffend.” In re
Commitment of W.Z., 173 N.J. 109, 132, 801 A.2d 205, 218 (2002) (emphasis added). These two
jurisdictions with similar statutes interpret them very differently: one requiring a mere probability
and the other requiring it to be highly likely that a person will commit future sex offenses. As such,
we believe our Legislature’s decision to change the definition from a “person’s propensity to
commit actus of sexual violence” to “more probably than not will engage in acts of sexual
violence” was an effort to form a more definite criterion. Therefore, even if we were to consider

the legislative history of this definition, we believe it comports with our interpretation based on
the wording of the statute.

Your letter indicates you believe the changes in the definition of “likely to engage in acts of sexual
violence” changed the burden of proof to now require a preponderance of the evidence standard
due to the addition of the phrase “more probably than not.” We disagree. The Act specifies: “The
court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent
predator.” S.C. Code Ann. § 44-48-100 (emphasis added). The 2023 amendments to this provision
did not change this standard. The change to section 44-48-30(9) modifying the definition of “likely
to engage in acts of sexual violence” only clarifies one of the considerations in determining
whether a person falls under the definition of sexual violent predator, not the legal standard for
their commitment. Therefore, we do not believe the Legislature intended to change the legal
standard of proof in order for persons to be committed pursuant to this Act.
Conclusion

The South Carolina Sexually Violent Predator Act defines a sexually violent predator as a person
who:

(a) has been convicted of a sexually violent offense; and

Elizabeth Hutto, Esq.
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February 14, 2024

(b) suffers from a mental abnormality or personality disorder that makes the
person likely to engage in acts of sexual violence if not confined in a secure

facility for long-term control, care, and treatment.
S.C. Code Ann. § 44-48-30(1) (emphasis).

In 2023, the Legislature amended its definition of

“likely to engage in acts of sexual violence” to state this phrase means “a person is predisposed to
engage in acts of sexual violence and more probably than not will engage in acts of sexual violence

to such a degree as to pose a menace to the health and safety of others.” We do not believe inclusion
of the phrase “more probably than not” requires a statistical finding that the person’s chance of re
offense is greater than fifty percent. Rather, we believe the plain language of the statute requires
an assessment of all variables leading to a determination as to whether a person is likely to engage
in acts of sexual violence to such a degree that they pose a risk to others. While we do not believe

consideration of legislative history is necessary to interpret this definition, based on the
information you provided and our own research, we believe our interpretation comports with this

statute’s legislative history. We also do not believe the 2023 changes to the definition of “likely
to engage in acts of sexual violence” indicate the Legislature’s intent to change the standard of

proof required for a person to be committed pursuant to the Act. If the Legislature had intended
to make such a dramatic change in the law, surely it would have specified such a change clearly
and succinctly. The fact that the Legislature did not so specify strongly supports our conclusion
herein. As our Supreme Court has emphasized, a “resort to subtle and refined construction for the

purpose either of limiting or extending [a statute’s] operation” is not favored. Greenville Baseball
v. Bearden. 200 S.C. 363, 20 S.E.2d 813, 815 (1942).

Sincerely,

Cyilnni Milling '
Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General