H 4934 Session 110 (1993-1994)
H 4934 General Bill, By Cobb-Hunter
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
16-3-612 so as to create the offense of domestic assault and domestic assault
and battery; to amend Article 1, Chapter 25, Title 16, relating to criminal
domestic violence, so as to revise the definition of "family or household
member"; to authorize the court to order specialized counseling to revise
penalties; to amend Section 20-4-20, relating to definitions in the Protection
from Domestic Abuse Act, so as to revise the definition of "family or
household member"; to amend Section 20-4-70, relating to duration of orders,
so as to authorize the indefinite duration of a protective order; to amend
Section 20-4-100, relating to the responsibilities of law enforcement in
domestic abuse matters, so as to clarify the duties; to amend Section
20-7-420, as amended, relating to the jurisdiction of the family court, so as
to authorize the court to order specialized counseling in cases of domestic
abuse and to order that the respondent pay for the counseling if able to do
so.
03/17/94 House Introduced and read first time HJ-7
03/17/94 House Referred to Committee on Judiciary HJ-8
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 16-3-612 SO AS TO CREATE THE
OFFENSE OF DOMESTIC ASSAULT AND DOMESTIC ASSAULT
AND BATTERY; TO AMEND ARTICLE 1, CHAPTER 25, TITLE 16,
RELATING TO CRIMINAL DOMESTIC VIOLENCE, SO AS TO
REVISE THE DEFINITION OF "FAMILY OR HOUSEHOLD
MEMBER"; TO AUTHORIZE THE COURT TO ORDER
SPECIALIZED COUNSELING TO REVISE PENALTIES; TO
AMEND SECTION 20-4-20, RELATING TO DEFINITIONS IN THE
PROTECTION FROM DOMESTIC ABUSE ACT, SO AS TO REVISE
THE DEFINITION OF "FAMILY OR HOUSEHOLD
MEMBER"; TO AMEND SECTION 20-4-70, RELATING TO
DURATION OF ORDERS, SO AS TO AUTHORIZE THE
INDEFINITE DURATION OF A PROTECTIVE ORDER; TO AMEND
SECTION 20-4-100, RELATING TO THE RESPONSIBILITIES OF
LAW ENFORCEMENT IN DOMESTIC ABUSE MATTERS, SO AS
TO CLARIFY THE DUTIES; TO AMEND SECTION 20-7-420, AS
AMENDED, RELATING TO THE JURISDICTION OF THE FAMILY
COURT, SO AS TO AUTHORIZE THE COURT TO ORDER
SPECIALIZED COUNSELING IN CASES OF DOMESTIC ABUSE
AND TO ORDER THAT THE RESPONDENT PAY FOR THE
COUNSELING IF ABLE TO DO SO.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 16-3-612. (A) An assault based upon circumstances
which constitute a violation of Section 16-25-20 is a misdemeanor.
Upon conviction or a guilty plea to this offense, it must be designated,
for purposes of the offender's criminal record, as domestic assault.
(B) An assault and battery based upon circumstances which
constitute a violation of Section 16-25-20 is a misdemeanor. Upon a
conviction of or a guilty plea to this offense it must be designated, for
purposes of the offender's criminal record, as domestic assault and
battery."
SECTION 2. Article 1, Chapter 25, Title 16 of the 1976 Code is
amended to read:
"CHAPTER 25
Criminal Domestic Violence
Article 1
General Provisions
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, and
persons who have a child in common.
Section 16-25-20. It is unlawful to:
(1) cause physical harm or injury to his or her a person's
own family or household member,;
(2) offer or attempt to cause physical harm or injury to his or
her a person's own family or household member with
apparent present ability under circumstances reasonably creating fear of
imminent peril.
Section 16-25-30. Any A person who violates
Section 16-25-20 is guilty of criminal domestic violence and upon
conviction must be punished by a fine of fined not more
than two five hundred dollars or imprisonment
of imprisoned not more than thirty days. The court may
order the defendant to complete an appropriate program designed to treat
battering spouses or other counseling, if available.
Section 16-25-40. Any A person who violates
Section 16-25-20 after previously having previously
been twice convicted of a violation of Section 16-25-20
upon conviction must be punished upon conviction by a fine
of fined not more than three thousand dollars or by
imprisonment for imprisoned not more than three years or
both.
Section 16-25-45. A conviction or guilty plea to charges of
domestic assault or domestic assault and battery, as defined in Section
16-3-612, must be considered a previous conviction of criminal domestic
violence for purposes of Section 16-25-40 and for purposes of Section
22-5-910.
Section 16-25-50. Any A person violating the terms
and conditions of an order of protection issued under the `Protection
from Domestic Abuse Act' is guilty of a misdemeanor. If the
violation involves acts prohibited in Section 16-25-20, the person is
guilty of criminal domestic violence and must be punished in accordance
with Section 16-25-30 or Section 16-25-40, as appropriate. If the
violation does not involve acts prohibited in Section 16-25-20
and upon conviction shall the person must be
punished by imprisonment for imprisoned not more than
thirty days or by a fine of fined not more than
two five 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. (A) When any If a
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 successful completion by
the offender, to the satisfaction of the court, in of a
program designed to treat battering spouses where, if
available, or in of other appropriate psychiatric
or therapeutic treatment or counseling;
(2) fulfillment of all the obligations arising under court order
pursuant to Section 20-4-60; and
(3) other reasonable terms and conditions of probation as the
court may determine necessary to ensure the protection of the victim.
(B) If a person is convicted of a violation of Section
16-25-40, no portion of the sentence may be suspended.
Section 16-25-70. (A) A law enforcement officer may
arrest, with or without a warrant, a person at his the
person's place of residence or elsewhere if the officer has probable
cause to believe that the person is committing or has freshly committed
any a 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,
may verify the existence of an order of protection by telephone
or radio communication with the appropriate police department.
(B) 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 a family or household member.
(C) No evidence other than evidence of violations of this
article found as a result of a warrantless search shall be
is admissible in any a court of law.
Section 16-25-80. (A) Nothing in this article affects or
limits the powers of any a court to enforce its own
orders by civil or criminal contempt or the powers of the police to make
other lawful arrests.
(B) 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."
SECTION 3. Section 20-4-20(b) of the 1976 Code is amended to read:
"(b) `Family or household member' means spouses, former
spouses, parents and children, and persons related by
consanguinity or affinity within the second degree, persons
cohabiting or formerly cohabiting, and persons who have a child in
common."
SECTION 4. Section 20-4-70 of the 1976 Code is amended to read:
"Section 20-4-70. (A) Any An
order of protection issued under subsection (a) of Section
20-4-60(a) shall must 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, except as provided for in subsection (B). A
respondent shall have has 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.
(B)Provisions included in an order of protection granting relief
pursuant to Section 20-4-60(a)(1) or Section 20-4-60(d) continue in
effect indefinitely unless otherwise provided for by the family court.
(C) 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
the order unless, prior to before the expiration
of such period the sixty days, 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 a hearing has been scheduled, relief granted under
Section 20-4-60(c) shall remain remains in effect
beyond the sixty-day period only until an order pursuant to the
hearing is issued by the court.
(D) The family court may modify the terms of any order
issued under this section.
(E) Any An order of protection issued by
a magistrate shall expire expires as provided under the
terms of the order or upon the issuance of a subsequent order by the
family court, whichever occurs first."
SECTION 5. Section 20-4-100 of the 1976 Code is amended to read:
"Section 20-4-100. The primary duty of a law enforcement
officer when responding to a domestic abuse incident, whether or
not an order of protection has been issued, is to enforce the laws
allegedly violated and to protect the abused person if facts are found
which substantiate the complaint. In such incidents, in addition to
the requirements of Section 16-25-70, the law enforcement officer
must take the following protective measures:
(a)(1) notify the abused person of the right to initiate
criminal proceedings and to seek an order of protection under this
chapter.;
(b)(2) 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 the person's residence to allow for the removal of
clothing, medication, and such personal property as is reasonably
necessary."
SECTION 6. Section 20-7-420 of the 1976 Code is amended by adding
an appropriately numbered section to read:
"( ) If, after a hearing for an order of protection under the
`Protection from Domestic Abuse Act' the court has issued an order of
protection, the court may in addition:
(a) order the respondent to complete an appropriate program
designed to treat battering spouses or other counseling, if available, and
may order the respondent to pay for the counseling depending upon the
respondent's ability to pay;
(b) order other family or household members to attend an
appropriate program of intervention or other counseling, if available, and
may order the respondent to pay for the counseling depending upon the
respondent's ability to pay."
SECTION 7. This act takes effect upon approval by the Governor.
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