The best starting point in any discussion concerning criminal law is to first define what constitutes a criminal offense. At first blush, it would appear that defining a criminal offense would be as simple as turning to the criminal code and seeing if the offense is listed there. To this end, the lion’s share of criminal offenses recognized by South Carolina law are found within Title 16 of the South Carolina Code, which is aptly named “Crimes and Offenses.” Unfortunately, we cannot simply rely on whether a particular offense is codified in Title 16.

This is so because many criminal offenses are  not codified in Title 16. Driving under the influence, for example, is codified in Title 56, “Motor Vehicles.” By way of another example, drug offenses under South Carolina law are contained in Title 44, “Health.” Some offenses aren’t codified at all, as is the case with common law criminal offenses. Crimes such as common law obstruction of justice were developed by the courts over the years and can’t be found anywhere in the South Carolina Code.

So, coming back to the initial task at hand, we need a way of looking at a law and determining whether it constitutes a criminal offense. With all of this in mind, we can use the simple two prong test discussed by the South Carolina Supreme Court in State v. Parker to conduct our analysis: a criminal offense is (1) any conduct (including omissions) which violates a public law that forbids the act (or omission) and (2) is punishable with a penalty.

Now that we have this rudimentary formula, we can address the deeper, more implicit question:  why is it important that we define a criminal offense? Identifying whether a provision of law constitutes a criminal offense is important because criminal offenses trigger statutory and constitutional safeguards not otherwise provided in a civil context. The right to remain silent, the right to cross-examination, the right to a jury trial–these are some of the very important rights guaranteed in criminal prosecutions that are not always available in civil lawsuits.

This was precisely what was at issue in  Parker , where the defendants were called to court for a violation of a contempt of court statute. Because the statute purported to be a civil one, the defendants were “were sentenced [to two years in prison] in a completely summary manner, and there is no contention by the State that any of the normal constitutional safeguards accruing to a person charged with a crime were observed .” Applying the aforementioned test, the Supreme Court found the statute created a substantial criminal offense and reversed the defendants’ convictions.

As can be seen from the Parker case, application of this test is more than simply an academic pursuit. Rather, this test is necessary to ensure that we provide all the necessary rights and protections incident to a criminal prosecution.

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