In the wake of multiple decades-old sexual assault allegations against Supreme Court Justice nominee Brett Kavanaugh (allegations that may or may not be true and I’m not expressing an opinion on that here), many people are asking, “are there statutes of limitations for sexual assault?”

The answer depends on the jurisdiction that you are in, but there are no statutes of limitations for crimes in SC at all – sexual assault, murder, or even a minor offense like littering can be prosecuted at any time.

But, are crimes really prosecuted in SC decades after they were allegedly committed?

Not usually, but the more serious “cold cases” with victims, like murder or sexual assaults, are sometimes prosecuted if new evidence becomes available…

Do Police Prosecute “Cold Cases” in SC?

Although there are no statutes of limitations for crimes in SC, criminal cases are not usually investigated after a reasonable amount of time has gone by – there are some cases, however, that police and prosecutors will pursue if there is evidence available.

Types of “Cold Cases” that are Not Usually Prosecuted

In most cases, even though there are no statutes of limitations for crimes in SC, it doesn’t make sense to use law enforcement and prosecutorial resources to investigate and prosecute minor crimes that happened in the past.

If a police officer sees you littering, for example, you will get a ticket and you could even go to jail for it. But, if a police officer discovers that you littered five years ago, it would be ridiculous to spend the time investigating and collecting evidence to prosecute you for it.

Even minor crimes with victims will not usually be looked at after a reasonable amount of time has gone by – for example, if you were to file a police report about a domestic violence incident that happened years ago, the first question police will ask is, “Why didn’t you report it when it happened?”

In cases decided in equity, there is a principle called “the doctrine of laches,” and this is informally applied by law enforcement – if you wait too long to make a claim, it is unfair to the accused, not an efficient use of law enforcement’s time and resources, and you have, as a practical matter, forfeited your right to bring criminal charges against someone.

Types of “Cold Cases” Police Do Investigate

Not having statutes of limitations for crimes in SC does allow law enforcement and prosecutors the discretion to bring charges when new evidence becomes available in a “cold case.”

This can happen in several ways. For example:

• Every inmate’s DNA is entered into a database – when there is a “hit” on DNA that was collected and entered from an older case, that investigation may be reopened, and the person may be charged with the older crime;
• New witnesses come forward – although there will be obvious questions as to why they did not come forward when the crime first happened, this can trigger the investigation being reopened if the witnesses are credible;
• Delayed reporting – it is clear that many sexual assault victims, both children and adults, delay reporting for many reasons. A sexual assault that happened in the past may be investigated and prosecuted if there is evidence to corroborate the allegations.

Although any crime could be investigated and prosecuted years after it happens, the most common “cold cases” that we see in SC are:

• Sexual assault;
• Murder;
• Robbery; and
• Other serious, violent crimes with victims.

Pre-Indictment Delay

If there are no statutes of limitations for crimes in SC, does that mean police and prosecutors can just wait for years to charge someone?

Not exactly, because there is a constitutional guarantee that, if you are accused of a crime, the charges will be brought within a reasonable amount of time.

The SC Supreme Court and the US Supreme Court have held that the Due Process Clause protects against oppressive pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).  

A person charged with a crime after a substantial delay can ask the court to dismiss their indictments, and the court must balance the government’s justification for the delay with any prejudice to the defendant’s right to a fair trial.

First, the burden of proof is on the defendant to prove that “the pre-indictment delay caused substantial prejudice to his right to a fair trial.” Then, if the defendant proves “actual prejudice,” the court will look at the government’s reasons for the delay and balance their justification against the prejudice that it caused the defendant.

“If the court finds that the delay was an intentional device to gain a tactical advantage over the accused, the court should dismiss the indictment.”

This is why “newly discovered evidence” is the most common reason that charges are brought for old crimes – police and prosecutors cannot use the lack of statutes of limitations for crimes in SC to gain an unfair advantage.

Sex Crimes are the Most Common Exception to Statutes of Limitations in Other States

Many states and the federal government do have statutes of limitations for crimes. But, many of the jurisdictions that have statutes of limitations also have exceptions for sexual assaults or for delayed reporting of assaults.

If you are curious as to which states have statutes of limitations for crimes and whether there are exceptions for sex crimes, RAINN has a state-by-state breakdown that includes whether each state:

• Has a statute of limitations for felony sex crimes;
• Has an exception for delayed reporting of sex crimes;
• Has an exception for cases with DNA evidence; and
• What the statute of limitations is in each state for sex crimes.

SC Criminal Defense Lawyers in Myrtle Beach and Conway, SC

Although there are no statutes of limitations for crimes in SC, “oppressive” pre-indictment delay can be a Due Process violation that allows us to get your case dismissed when the delay has prejudiced your defense and prevented a fair trial.

If you’ve been charged with a crime in SC, the Myrtle Beach criminal defense lawyers at Coastal Law will investigate your case and will explore every possibility for getting your case dismissed before trial. Call now at (843) 488-5000 or contact us by email to talk with a defense attorney today.