South Carolina General Assembly
116th Session, 2005-2006

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S. 93

STATUS INFORMATION

General Bill
Sponsors: Senators McConnell, Moore, Knotts, Fair and Richardson
Document Path: l:\s-jud\bills\mcconnell\jud0035.gfm.doc

Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary

Summary: Redefine and clarify penalties for stalking and harassment

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
  12/15/2004  Senate  Prefiled
  12/15/2004  Senate  Referred to Committee on Judiciary
   1/11/2005  Senate  Introduced and read first time SJ-128
   1/11/2005  Senate  Referred to Committee on Judiciary SJ-128
    2/1/2005  Senate  Referred to Subcommittee: Hutto (ch), Jackson, Knotts, 
                        Bryant

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/15/2004

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND ARTICLE 17, CHAPTER 3 OF TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO STALKING AND HARASSMENT, SO AS TO REDEFINE STALKING AND HARASSMENT; TO CLARIFY PENALTIES FOR STALKING AND HARASSMENT; TO REQUIRE THAT WHEN A RESTRAINING ORDER IS ISSUED AS A CONDITION OF BOND FOR HARASSMENT OR STALKING, A COPY OF THE RESTRAINING ORDER MUST BE SENT BY THE COURT TO THE VICTIM; TO PROVIDE THAT A TEMPORARY RESTRAINING ORDER GRANTED WITHOUT NOTICE MUST BE ENTERED OF RECORD WITH THE MAGISTRATES COURT; TO PROVIDE THAT THE DURATION OF A TEMPORARY RESTRAINING ORDER IS EXTENDED FROM SIX MONTHS TO ONE YEAR; TO ALLOW SERVICE OF A RESTRAINING ORDER TO BE MADE BY MAIL RETURN RECEIPT TO THE DEFENDANT'S LAST KNOWN ADDRESS; TO REQUIRE THAT A MENTAL EVALUATION MUST BE MADE BEFORE BAIL IS SET ON A STALKING OR HARASSMENT CHARGE; AND TO REQUIRE THAT THE EVALUATION BE SCHEDULED WITHIN TEN DAYS OF THE ORDER'S ISSUANCE, THAT THE REPORT BE ISSUED WITHIN FORTY-EIGHT HOURS OF EVALUATION, AND THAT THE SOLICITOR ARRANGE FOR A BOND HEARING UPON RECEIPT OF THE REPORT BEFORE A CIRCUIT COURT JUDGE.

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

SECTION    1.    Article 17, Chapter 3 of Title 16 of the 1976 Code is amended to read:

"ARTICLE 17

HARASSMENT AND STALKING

Section 16-3-1700.        As used in this article:

(A)    'Harassment' 'Harassment in the second degree' means a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person, and would cause a reasonable person in his position, to suffer mental or emotional distress. Harassment in the second degree may include, but is not limited to:

(1)    following the targeted person as he moves from location to location;

(2)    visual, physical, verbal, written, or electronic contact that is initiated, maintained, or repeated after a person has been provided notice that the contact is unwanted;

(3)    surveillance of or the maintenance of a presence near the targeted person's:

(a)    residence;

(b)    place of work;

(c)    school; or

(d)    another place regularly occupied by the targeted person; and

(4)    vandalism and property damage.

Harassment does not include words or conduct that is protected by the Constitution of this State or the United States and does not apply to law enforcement officers or process servers performing their official duties.

(B)    'Harassment in the first degree' means a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person, and would cause a reasonable person, in his position, to suffer mental or emotional distress. Harassment in the first degree may include, but is not limited to:

(1)    following the targeted person as he moves from location to location;

(2)    visual or physical contact that is initiated, maintained, or repeated;

(3)    surveillance of or the maintenance of a presence at or near the targeted person's:

(a)    residence;

(b)    place of work;

(c)    school; or

(d)    another place regularly occupied or visited by the targeted person; and

(4)    vandalism and property damage.

(B)(C)    'Stalking' means a pattern of words, conduct, whether verbal, written, or electronic, or a pattern of conduct, that serves no legitimate purpose and is intended to cause and does cause a targeted person and would cause a reasonable person in the targeted person's position to fear:

(1)    death of the person or a member of his family;

(2)    assault upon the person or a member of his family;

(3)    bodily injury to the person or a member of his family;

(4)    criminal sexual contact on the person or a member of his family;

(5)    kidnapping of the person or a member of his family; or

(6)    damage to the property of the person or a member of his family.

Stalking does not include words or conduct that is protected by the Constitution of this State or the United States and does not apply to law enforcement officers or process servers performing their official duties.

(C)    'Aggravated stalking' means stalking accompanied or followed by an act of violence.

(D)    'Pattern' means two or more acts within a ninety-day period occurring over a period of time, however short, evidencing a continuity of purpose.

(E)    'Family' means a spouse, child, parent, sibling, or a person who regularly resides in the same household as the targeted person.

(F)    This section does not apply to a licensed private investigator who is performing services or an investigation as described in detail in a contract signed by the client and the private investigator pursuant to Section 40-18-70.

Section 16-3-1710.    (A)    A Except as provided in subsection (B), a person who engages in harassment in the second degree is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars, imprisoned not more than thirty days, or both.

(B)    A person convicted of harassment in the second degree against a person within seven years of a prior conviction of harassment against or stalking of that person, or when an injunction or restraining order is in effect prohibiting this conduct, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars, imprisoned not more than one year, or both if:

(1)    the person has a prior conviction of harassment or stalking; or

(2)    at the time of the harassment an injunction or restraining order was in effect prohibiting the harassment.

(C)    In addition to the penalties provided in this section, a person convicted of harassment in the second degree who received licensing or registration information pursuant to Article 4 of Chapter 3 of Title 56 and used the information in furtherance of the commission of the offense under this section must be fined two hundred dollars or imprisoned thirty days, or both.

Section 16-3-1720.    (A)    A Except as provided in subsections (B) and (C), a person who engages in stalking harassment in the first degree is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars, imprisoned not more than one year three years, or both.

(B)    A person who engages in stalking harassment in the first degree when an injunction or restraining order is in effect prohibiting this conduct is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars, imprisoned not more than two three years, or both.

(C)    A person who engages in stalking a person within seven years of harassment in the first degree and who has a prior conviction of harassment against or stalking of that person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars, imprisoned not more than five years, or both.

(D)    In addition to the penalties provided in this section, a person convicted of stalking harassment in the first degree who received licensing or registration information pursuant to Article 4 of Chapter 3 of Title 56 and used the information in furtherance of the commission of the offense under this section must be fined one thousand dollars or imprisoned one year, or both.

Section 16-3-1730.    (A)    A person who engages in aggravated stalking is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars, imprisoned not more than five years, or both.

(B)    A person who engages in aggravated stalking when an injunction or restraining order is in effect prohibiting this conduct is guilty of a felony and, upon conviction, must be fined not more than seven thousand dollars, imprisoned not more than ten years, or both.

(C)    A person who engages in aggravated stalking of a person within seven years of stalking and who has a prior conviction of harassment against harassing or stalking of that a person is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars, imprisoned not more than fifteen years, or both.

(D)    In addition to the penalties provided in this section, a person convicted of stalking who received licensing or registration information pursuant to Article 4 of Chapter 3 of Title 56 and used the information in furtherance of the commission of the offense under this section must be fined one thousand dollars or imprisoned one year, or both.

Section 16-3-1740.        Before sentencing a person convicted of stalking or harassment in the first or second degree, the court may require the person to undergo a mental health evaluation. If the court determines from the results of the evaluation that the person needs mental health treatment or counseling, the court shall must require him to undergo mental health treatment or counseling by a court-approved mental health professional, mental health facility, or facility operated by the State Department of Mental Health as a part of his sentence.

Section 16-3-1750.    (A)    Under Pursuant to this article, the magistrates court has jurisdiction over an action seeking a restraining order against a person engaged in harassment in the first or second degree or stalking.

(B)    An action for a restraining order must be filed in the county in which:

(1)    the defendant resides when the action commences;

(2)    the harassment in the first or second degree or stalking occurred; or

(3)    the plaintiff resides if the defendant is a nonresident of the State or cannot be found.

(C)    A complaint and motion for a restraining order may be filed by any person. The complaint must:

(1)    allege that the defendant is engaged in harassment in the first or second degree or stalking and must state the time, place, and manner of the acts complained of, and other facts and circumstances upon which relief is sought;

(2)    be verified; and

(3)    inform the defendant of his right to retain counsel to represent him at the hearing on the complaint.

(D)    The magistrates court must provide forms to facilitate the preparation and filing of a complaint and motion for a restraining order by a plaintiff not represented by counsel. The court must not charge a fee for filing a complaint and motion for a restraining order against a person engaged in harassment or stalking. Upon the issuance of a restraining order as a condition of bond for the arrest of the defendant for any crime, the court must issue a written copy of the restraining order to the victim in person or by mail within twenty-four hours of the bond hearing. A restraining order issued as a condition of bond has the same effect as any restraining order issued under the provisions of this section.

(E)    A restraining order remains in effect for a fixed period of time of not less than one year, as determined by the court on a case-by-case basis.

(F)    Notwithstanding any other provision of law, a restraining order or a temporary restraining order issued pursuant to this article is enforceable throughout this State.

Section 16-3-1760.    (A)    Within twenty-four hours after the filing of a complaint and motion seeking a restraining order under pursuant to Section 16-3-1750, the court, for good cause shown, may hold an emergency hearing and, if the plaintiff proves his allegation by a preponderance of the evidence, may issue a temporary restraining order without giving the defendant notice of the motion for the order. A prima facie showing of immediate and present danger of bodily injury, verified by supporting affidavits, constitutes good cause.

(B)    A temporary restraining order granted without notice must be served upon the defendant together with a copy of the complaint and a Rule to Show Cause why the order should not be extended for the full six-month one-year period. The Rule to Show Cause shall must provide the date and time of the hearing for the Rule to Show Cause. The defendant must be served within five days before the hearing in the same manner required for service in circuit court.

(C)    In cases not provided in subsection (A) of this provision, the court shall must cause a copy of the complaint and motion to be served upon the defendant at least five days before the hearing in the same manner required for service in circuit court.

(D)    The court shall must hold a hearing on a motion for a restraining order within fifteen days of the filing of a complaint and motion, but not sooner than five days after service has been perfected upon the defendant.

Section 16-3-1770.    (A)    A temporary restraining order granted without notice must be endorsed with the date and hour of issuance and entered of record with the magistrate's magistrates court.

(B)    The terms of the restraining order shall must protect the plaintiff and may include temporarily enjoining the defendant from:

(1)    abusing, threatening to abuse, or molesting the plaintiff or members of the plaintiff's family;

(2)    entering or attempting to enter the plaintiff's place of residence, employment, education, or other location; and

(3)    communicating or attempting to communicate with the plaintiff in a way that would violate the provisions of this article.

(C)    A restraining order issued pursuant to this article conspicuously shall must bear the following language: 'Violation of this order is a criminal offense punishable by thirty days in jail, a fine of five hundred dollars, or both.'

Section 16-3-1780.    (A)    A temporary restraining order shall remain remains in effect until the hearing on the Rule to Show Cause why the order should not be extended for the full six-month one-year period. The temporary restraining order must be for a fixed period in accordance with subsection (B) of this provision if the court finds the defendant in default at the hearing.

(B)    In cases not provided for in subsection (A) of this provision, a restraining order must be for a fixed period not to exceed six months, one year but may be extended by court order on a motion by the plaintiff, showing good cause, with notice to the defendant. The defendant is entitled to a hearing on the extension of an order issued pursuant to this subsection within thirty days of the date upon which the order will expire.

(C)    Notwithstanding subsection (B) of this provision, the provisions included in a restraining order granting relief pursuant to Section 16-3-1770 dissolve six months one year following the issuance of the order unless, prior to the expiration of this period, the court has charged the defendant with the crime of harassment in the first or second degree or stalking and has scheduled a date for trial on the charge. If the trial has been scheduled, relief granted pursuant to Section 16-3-1770 shall remain remains in effect beyond the six-month one-year period only until the conclusion of the trial.

(D)    The court may modify the terms of an order issued pursuant to this section.

Section 16-3-1790.    The magistrate' courts shall A magistrates court must serve the defendant with a certified copy of an order issued pursuant to this article and provide a copy to the plaintiff and to the local law enforcement agencies having jurisdiction over the area where the plaintiff resides. Service must be made without charge to the plaintiff. After reasonable attempts to locate the defendant have failed, service of the defendant must be made by mail, return receipt requested, to the defendant's last known address. The receipt return must be filed with the magistrates court. A copy must also be mailed to the plaintiff.

Section 16-3-1800.    Law enforcement officers shall must arrest a defendant who is acting in violation of a restraining order after service and notice of the order have been provided. An arrest warrant is not required.

Section 16-3-1810.    (A)    The primary responsibility of a law enforcement officer when responding to a harassment in the first or second degree or stalking incident is to enforce the law and protect the complainant.

(B)    The law enforcement officer shall must notify the complainant of the right to initiate criminal proceedings and to seek a restraining order.

Section 16-3-1820.        A person who reports an alleged harassment in the first or second degree or stalking, files a criminal complaint, files a complaint for a restraining order, or who participates in a judicial proceeding under pursuant to this article and who is acting in good faith is immune from criminal and civil liability that might otherwise result from these actions. A rebuttable presumption exists that the person was acting in good faith.

Section 16-3-1830.        A proceeding commenced under pursuant to this article is in addition to other civil and criminal remedies.

Section 16-3-1840.        As a condition of Prior to setting bail, a magistrate or a municipal judge may order a defendant charged with harassment in the first or second degree or stalking under pursuant to this article to undergo a mental health evaluation performed by the local mental health department. The purpose of this evaluation is to determine if the defendant poses a threat to the victim or possesses a mental abnormality which requires immediate commitment or additional treatment as a condition of bond. The evaluation must be scheduled within ten days of the order's issuance. Once the evaluation is completed, the examiner must, within forty-eight hours, issue a report to the local solicitor's office. Upon receipt of the report, the solicitor must arrange for a bond hearing before a circuit court judge. For purposes of this section, 'mental abnormality' means a mental condition affecting a person's emotional or volitional capacity that predisposes the person to commit an offense against another person."

SECTION    2.    Article 17, Chapter 3, Title 16 of the 1976 Code of Laws is amended by adding:

"Section 16-3-1705.    (A)    An electronic mail service provider must not be charged with or have a penalty accessed based upon a violation of this article or have a cause of action filed against it based on the electronic mail service provider's:

(1)    being an intermediary between the sender and recipient in the transmission of an electronic contact that violates this article; or

(2)    providing transmission of an electronic contact over the provider's computer network or facilities that violate this article.

(B)    For purposes of this article, 'electronic mail service provider' means a person or entity which:

(1)    is an intermediary in sending or receiving electronic mail; and

(2)    provides to users of electronic mail services the ability to send or receive electronic mail."

SECTION    3.    The repeal or amendment by this act of any law, whether temporary or permanent, civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly so provides. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    4. This act takes effect upon approval by the Governor and applies to an offense which takes place on or after the effective date.

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