Bill 464

                    Current Status

BillNumber:                464
Ratification Number:       581
Act Number:                484
Introducing Body:          Senate
Subject:                   Relating to domestic violence

(A484, R581, S464)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 25, ARTICLE 1 TO TITLE 16, SO AS TO ESTABLISH THE CRIME OF CRIMINAL DOMESTIC VIOLENCE, TO MAKE UNLAWFUL THE VIOLATION OF AN ORDER OF PROTECTION ISSUED UNDER THE "PROTECTION FROM DOMESTIC ABUSE ACT"; TO PROVIDE PROCEDURES FOR ARREST UPON PROBABLE CAUSE INVOLVING SUCH OFFENSES, AND TO PROVIDE PENALTIES; TO AMEND THE CODE BY ADDING CHAPTER 4 TO TITLE 20, SO AS TO ENACT THE "PROTECTION FROM DOMESTIC ABUSE ACT"; AND TO AMEND SECTION 20-7-420, AS AMENDED, RELATING TO JURISDICTION OF THE FAMILY COURT, SO AS TO PROVIDE THAT THE COURT SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ACTIONS FOR PROTECTION FROM DOMESTIC ABUSE.

Be it enacted by the General Assembly of the State of South Carolina:

Criminal domestic violence

SECTION 1. The 1976 Code is amended by adding to Title 16:

Section 16-25-10. As used in this article, 'family or household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, and persons cohabitating or formerly cohabitating.

Section 16-25-20. It is unlawful to: (1) Cause physical harm or injury to his or her family or household member, (2) offer or attempt to cause physical harm or injury to his or her family or household member with apparent present ability under circumstances reasonably creating fear of imminent peril.

Section 16-25-30. Any person who violates Section 16-25-20 is guilty of criminal domestic violence and upon conviction must be punished by a fine of not more than two hundred dollars or imprisonment of not more than thirty days.

Section 16-25-40. Any person who violates Section 16-25-20 after having previously been twice convicted of a violation of Section 16-25-20 must be punished upon conviction by a fine of not more than three thousand dollars or by imprisonment for not more than three years or both.

Section 16-25-50. Any person violating the terms and conditions of an order of protection issued under the 'Protection from Domestic Abuse Act' is guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than thirty days or by a fine of not more than two hundred dollars. No person found guilty of a violation of Sections 16-25-20 and 16-25-50 may be sentenced under both sections for the same offense.

Section 16-25-60. When any person is convicted of a violation of Section 16-25-40, the court may suspend execution of all or part of the sentence and place the offender on probation, conditioned upon:

(1) the participation of the offender, to the satisfaction of the court, in a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling;

(2) fulfillment of all the obligations arising under court order pursuant to Section 20-4-60;

(3) other reasonable terms and conditions of probation as the court may determine necessary to ensure the protection of the victim.

Section 16-25-70. A law enforcement officer may arrest, with or without a warrant, a person at his place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed any misdemeanor or felony under the provisions of Section 16-25-20 or Section 16-25-50 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department. In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where the officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to any family or household member.

No evidence other than evidence of violations of this article found as a result of a warrantless search shall be admissible in any court of law.

Section 16-25-80. Nothing in this article affects or limits the powers of any court to enforce its own orders by civil or criminal contempt or the powers of the police to make other lawful arrests.

Nothing in this article may be construed to repeal, replace, or preclude application of any other provisions of law pertaining to assault, assault and battery, assault and battery of a high and aggravated nature, or other criminal offenses."

Protection from Domestic Abuse Act

SECTION 2. The 1976 Code is amended by adding to Title 20:

Section 20-4-10. This chapter may be cited as the 'Protection from Domestic Abuse Act'.

Section 20-4-20. As used in this chapter:

(a) 'Abuse' means:

(1) Physical harm, bodily injury, assault, or the threat of physical harm;

(2) Sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member;

(b) 'Family or household member' means spouses, former spouses, parents and children, and persons related by consanguinity or affinity within the second degree.

(c) 'Court' means the Family Court.

(d) 'Petitioner' means the person alleging abuse in a petition for an order of protection.

(e) 'Respondent' in a petition for an order of protection means the person alleged to have abused another or a person alleged to have aided and abetted such abuse.

(f) Order of protection' means an order of protection issued to protect the petitioner or minor family or household members from the abuse of another family or household member where the respondent has received notice of the proceedings and has had an opportunity to be heard.

Section 20-4-30. The Family Court has jurisdiction over all proceedings under this chapter except that, during nonbusiness hours or at other times when the court is not in session, the

petition may be filed with a magistrate. The magistrate may issue an order of protection granting only the relief provided by Section 20-4-60 (a) (1).

Actions for an order of protection shall be filed in the county (a) in which the respondent resides at the time of the commencement of the action, (b) in which the petitioner resides if the respondent is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together unless the petitioner is a nonresident in which case it must be brought in the county in which the respondent resides.

Section 20-4-40. There is created an action known as a 'Petition for an Order of Protection' in cases of abuse to a family or household member.

(a) A petition for relief under this section may be made by any family or household members in need of protection or by any family or household members on behalf of minor family or household members.

(b) A petition for relief must allege the existence of abuse to a family or household member. It must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified.

(c) The petition must inform the respondent of the right to retain counsel.

(d) In a pending action for divorce or separate support and maintenance, the petition for relief shall be brought in the form of a motion for further relief and shall be served on counsel of record, if any. Where no action is pending, the petition shall be filed and served as an independent action.

(e)The clerk of court must provide simplified forms which will facilitate the preparation and filing of a petition under this section by any person not represented by counsel, including motions and affidavits to proceed in forma pauperis.

Section 20-4-50. (a) Within twenty-four hours after service of a petition under this chapter upon the respondent, the court may, for good cause shown, hold an emergency hearing and issue an order of protection if the petitioner proves the allegation of abuse by a preponderance of the evidence. A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, shall constitute good cause for purposes of this section.

(b) If the court denies the motion for a twenty-four hour hearing or such a hearing is not requested, the petitioner may request and the court shall grant a hearing within fifteen days of the filing of a petition. The court shall cause a copy of the petition to be served upon the respondent at least five days prior to such hearing, except as provided in subsection (a), in the same manner required for service in the circuit courts. Where such service is not accomplished five days prior to the hearing, the respondent, upon his motion, is entitled to a continuance until such time is necessary to provide for compliance with this section.

(c) The hearings referred to in this section may be scheduled in any county within the judicial circuit.

Section 20-4-60. (a) Any order of protection granted under this chapter shall be to protect the petitioner or the abused person or persons on whose behalf the petition was filed and may include:

(1) Temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed.

(2) Temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner's place of residence, employment, education, or other location as the court may order.

(b) Every order of protection issued pursuant to this chapter shall conspicuously bear the following language: 'Violation of this order is a criminal offense punishable by thirty days in jail or a fine of two hundred dollars or may constitute contempt of court punishable by up to one year in jail and/or a fine not to exceed fifteen hundred dollars'.

(c) When the court has, After a hearing for any order of protection, issued an order of protection, it may, in addition:

(1) Award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody.

(2) Direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child.

(3) When the respondent has a legal duty to support the petitioner or minor children living in the household and the household's residence is jointly leased or owned by the parties or the respondent is the sole owner or lessee, grant temporary possession to the petitioner of the residence to the exclusion of the respondent.

(4) Prohibit the transferring, destruction, encumbering, or otherwise disposing of real or personal property mutually owned or leased by the parties or in which one party claims an equitable interest, except when in the ordinary course of business.

(5) Provide for temporary possession of the personal property of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent's eviction has not been ordered.

(6) Award costs and attorneys' fees to either party.

(7) Award any other relief authorized by Section 20-7-420; provided, however, the court must have due regard for any prior Family Court orders issued in an action between the parties.

(d) No protective order issued pursuant to this chapter may, in any manner, affect the title to real property.

Section 20-4-70. Any order of protection issued under subsection (a) of Section 20-4-60 shall be for a fixed time not to exceed six months, but may be extended by order of the court upon motion by the petitioner, showing good cause, with notice to the respondent. A respondent shall have the right to a hearing on the extension of an order issued pursuant to this section within thirty days of the date upon which the order will expire.

Any provisions included in an order of protection granting relief pursuant to Section 20-4-60(c) shall dissolve without motion sixty days following the issuance of such order unless, prior to the expiration of such period, the court has scheduled a hearing pursuant to the filing of an action for divorce or separate support and maintenance to determine the temporary rights and obligations of the parties with respect to support of a spouse or children, custody and visitation, or the distribution of personal property. If such hearing has been scheduled, relief granted under Section 20-4-60(c) shall remain in effect beyond the sixty day period only until an order pursuant to the hearing is issued by the court.

The Family Court may modify the terms of any order issued under this section.

Any order of protection issued by a magistrate shall expire as provided under the terms of the order or upon the issuance of a subsequent order by the Family Court, whichever occurs first.

Section 20-4-80. A certified copy of any order must be mailed to or served upon the petitioner, the respondent, and local law enforcement agencies having jurisdiction in the area where the petitioner resides. No charge may be made to the petitioner for such action.

Section 20-4-90. When any order is issued pursuant to this chapter, upon request of the petitioner, the court may, as part of the order, require the sheriff's department or the police department pursuant to duties described under Section 20-4-100 to accompany the petitioner and assist in placing the petitioner in the possession of the dwelling or residence or otherwise assist in execution of service of the order.

Section 20-4-100. The primary duty of a law enforcement officer when responding to a domestic abuse incident is to enforce the laws allegedly violated and to protect the abused person if facts are found which substantiate the complaint. In such incidents, the law enforcement officer must take the following protective measures:

(a) Notify the abused person of the right to initiate criminal proceedings and to seek an order of protection under this chapter.

(b) Advise the parties of the importance of preserving evidence. To provide protection to the petitioner and any minor children, the officer may offer or arrange to provide transportation of the abused person to a hospital for treatment of injuries or to a place of shelter or safety and to accompany the abused person to his or her residence to allow for the removal of clothing, medication, and such personal property as is reasonably necessary.

Section 20-4-110. Any person who makes a report pursuant to this chapter or who participates in judicial proceedings resulting therefrom, acting in good faith, is immune from civil and criminal liability which might otherwise result by reason of such actions. In all such civil or criminal proceedings good faith is rebuttably presumed.

Section 20-4-120. The, petitioner's right to relief under this chapter is not affected by leaving the residence or household to avoid further abuse.

The petitioner's right to relief under this chapter is not affected by the use of such physical force against the respondent as is reasonably believed by the petitioner to be necessary to defend the petitioner or others from imminent physical injury or abuse.

Section 20-4-130. Any proceeding under this chapter is in addition to other civil and criminal remedies."

Jurisdiction of Family Court

SECTION 3. Section 20-7-420 of the 1976 Code, as amended, is further amended by adding a new item at the end to be appropriately numbered which shall read:

"( ) To hear and determine actions for protection from domestic abuse."

Time effective

SECTION 4. This act shall take effect upon approval by the Governor.

Approved the 22nd day of June, 1984.