H 3825 Session 112 (1997-1998)
H 3825 General Bill, By J. Smith, Cobb-Hunter, J.L.M. Cromer, Harrell,
J.H. Hodges, J.H. Neal and Pinckney
A BILL TO AMEND SECTION 20-3-110, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO INJUNCTIONS IN DIVORCE SUITS, SO AS TO PERMIT COURTS OF COMPETENT
JURISDICTION TO PROVIDE FOR THE ARREST, OR DETENTION UPON REASONABLE
SUSPICION, OF PERSONS VIOLATING OR THREATENING VIOLATION OF INJUNCTIONS
PROTECTING PARTIES FROM INTERFERENCE, MOLESTATION, OR HARM, AND TO PROVIDE FOR
PROSECUTION OF ACTS, OMISSIONS, AND CONDUCT OF A PERSON IN VIOLATION OF
INJUNCTIONS THAT ALSO VIOLATE THE CRIMINAL OR PENAL LAWS OF THIS STATE, TO
PROVIDE FOR TRANSFER OF JURISDICTION OF THOSE VIOLATIONS OF INJUNCTIONS THAT
ALSO VIOLATE THE CRIMINAL LAW OF THIS STATE TO COURTS OF COMPETENT CRIMINAL
JURISDICTION FOR PROSECUTION, AND TO PROVIDE FOR PUNISHMENT FOR CONTEMPT THAT
MAY BE IMPOSED BY THE COURT ISSUING THE INJUNCTION SO LONG AS NO PERSON SHALL
BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY; TO AMEND SECTION
16-3-1700, RELATING TO THE DEFINITION OF HARASSMENT, SO AS TO INCLUDE THE
VIOLATION OF FAMILY COURT INJUNCTIONS ISSUED UNDER THE AUTHORITY OF SECTION
20-3-110 WITHIN THE DEFINITION OF HARASSMENT AND TO PROVIDE THAT HARASSMENT
DOES NOT INCLUDE LICENSED PRIVATE DETECTIVES PERFORMING AUTHORIZED DUTIES IN A
LAWFUL MANNER, TO AMEND SECTION 16-3-1750, RELATING TO JURISDICTION FOR
ACTIONS SEEKING RESTRAINING ORDERS AGAINST PERSONS ENGAGING IN HARASSMENT, SO
AS TO PROVIDE MAGISTRATE'S COURTS WITH CONCURRENT JURISDICTION TO RESTRAIN
CONDUCT IN VIOLATION OF EXISTING INJUNCTIONS ISSUED BY FAMILY COURTS UNDER THE
AUTHORITY OF SECTION 20-3-110; TO AMEND SECTION 16-3-1760, RELATING TO
TEMPORARY RESTRAINING ORDERS THAT MAY BE GRANTED BY MAGISTRATES' COURTS
WITHOUT NOTICE, SO AS TO PROVIDE THAT PROOF OF THE VIOLATION OF PROVISIONS OF
AN EXISTING FAMILY COURT INJUNCTION ISSUED UNDER THE AUTHORITY OF SECTION
20-3-110 CONSTITUTES GOOD CA
04/03/97 House Introduced and read first time HJ-23
04/03/97 House Referred to Committee on Judiciary HJ-23
A BILL
TO AMEND SECTION 20-3-110, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO INJUNCTIONS IN DIVORCE
SUITS, SO AS TO PERMIT COURTS OF COMPETENT
JURISDICTION TO PROVIDE FOR THE ARREST, OR
DETENTION UPON REASONABLE SUSPICION, OF PERSONS
VIOLATING OR THREATENING VIOLATION OF
INJUNCTIONS PROTECTING PARTIES FROM
INTERFERENCE, MOLESTATION, OR HARM, AND TO
PROVIDE FOR PROSECUTION OF ACTS, OMISSIONS, AND
CONDUCT OF A PERSON IN VIOLATION OF INJUNCTIONS
THAT ALSO VIOLATE THE CRIMINAL OR PENAL LAWS OF
THIS STATE, TO PROVIDE FOR TRANSFER OF
JURISDICTION OF THOSE VIOLATIONS OF INJUNCTIONS
THAT ALSO VIOLATE THE CRIMINAL LAW OF THIS STATE
TO COURTS OF COMPETENT CRIMINAL JURISDICTION FOR
PROSECUTION, AND TO PROVIDE FOR PUNISHMENT FOR
CONTEMPT THAT MAY BE IMPOSED BY THE COURT
ISSUING THE INJUNCTION SO LONG AS NO PERSON SHALL
BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN
JEOPARDY; TO AMEND SECTION 16-3-1700, RELATING TO
THE DEFINITION OF HARASSMENT, SO AS TO INCLUDE
THE VIOLATION OF FAMILY COURT INJUNCTIONS ISSUED
UNDER THE AUTHORITY OF SECTION 20-3-110 WITHIN THE
DEFINITION OF HARASSMENT, AND TO PROVIDE THAT
HARASSMENT DOES NOT INCLUDE LICENSED PRIVATE
DETECTIVES PERFORMING AUTHORIZED DUTIES IN A
LAWFUL MANNER; TO AMEND SECTION 16-3-1750,
RELATING TO JURISDICTION FOR ACTIONS SEEKING
RESTRAINING ORDERS AGAINST PERSONS ENGAGING IN
HARASSMENT, SO AS TO PROVIDE MAGISTRATE'S COURTS
WITH CONCURRENT JURISDICTION TO RESTRAIN
CONDUCT IN VIOLATION OF EXISTING INJUNCTIONS
ISSUED BY FAMILY COURTS UNDER THE AUTHORITY OF
SECTION 20-3-110; TO AMEND SECTION 16-3-1760,
RELATING TO TEMPORARY RESTRAINING ORDERS THAT
MAY BE GRANTED BY MAGISTRATES' COURTS WITHOUT
NOTICE, SO AS TO PROVIDE THAT PROOF OF THE
VIOLATION OF PROVISIONS OF AN EXISTING FAMILY
COURT INJUNCTION ISSUED UNDER THE AUTHORITY OF
SECTION 20-3-110 CONSTITUTES GOOD CAUSE FOR A
MAGISTRATE'S COURT TO ISSUE A TEMPORARY
RESTRAINING ORDER WITHOUT NOTICE; TO AMEND
SECTION 16-3-1770, RELATING TO THE FORM AND
CONTENT OF TEMPORARY RESTRAINING ORDERS, SO AS
TO PROVIDE FOR THE FORM AND CONTENT OF
TEMPORARY RESTRAINING ORDERS REQUIRING A
PERSON TO REFRAIN FROM VIOLATING AN EXISTING
INJUNCTION ISSUED BY A FAMILY COURT UNDER
SECTION 20-3-110, AND TO REQUIRE MAGISTRATES
ISSUING SUCH RESTRAINING ORDERS TO REPORT THEIR
ACTIONS TO THE FAMILY COURT ISSUING THE PRIOR
INJUNCTION; AND BY ADDING SECTION 16-3-1850 SO AS TO
PRESERVE THE JURISDICTION OF FAMILY COURTS TO
PUNISH VIOLATORS AND TO OTHERWISE ENFORCE
INJUNCTIONS ISSUED BY THE FAMILY COURTS, AND TO
PROVIDE FOR PROSECUTION OF CRIMINAL OFFENSES
WITHIN THE JURISDICTION OF MAGISTRATE'S COURTS
THAT ALSO CONSTITUTE VIOLATIONS OF CERTAIN
PROVISIONS OF FAMILY COURT INJUNCTIONS PROVIDED
NO PERSON SHALL BE SUBJECT FOR THE SAME OFFENSE
TO BE TWICE PUT IN JEOPARDY.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 20-3-110 of the 1976 Code, is amended to
read:
"Section 20-3-110. (A) The court, pending the
termination of the action or by final order, may restrain or enjoin
either party to the cause from in any manner interposing any restraint
upon the personal liberty of, or from harming, interfering with or
molesting, the other party to the cause during the pendency of the suit
or after final judgment. It may also, during the pendency of such
action, restrain or enjoin any other person who is made a party to the
action from doing or threatening to do any act calculated to prevent
or interfere with a reconciliation of the husband and wife or other
amicable adjustment of the action.
(B) A court of competent jurisdiction issuing an injunction
under this section may include provisions authorizing any law
enforcement officer to arrest, with or without an arrest warrant, any
person who violates or threatens to violate any term or provision of
the injunction that enjoins that person from interposing any restraint
upon the personal liberty of, or from harming, interfering with, or
molesting the person or persons protected by the injunction, and any
person who is a party to the action who violates the injunction by
doing or threatening to do any act calculated to prevent or interfere
with a reconciliation of the husband and wife or other amicable
adjustment of the action. The conduct or threat constituting a
violation or threatened violation of the injunction need not have been
witnessed by the arresting officer, and need not have occurred in the
arresting officer's presence, so long as the arresting officer has
knowledge of the terms and provisions of that portion of the
injunction enjoining a person from interposing any restraint upon the
personal liberty of, or from harming, interfering with, or molesting
the person or persons protected by the injunction, and enjoining any
person who is a party to the action who violates the injunction by
doing or threatening to do any act calculated to prevent or interfere
with a reconciliation of the husband and wife or other amicable
adjustment of the action, and has probable cause to believe the person
arrested has been served with or received a copy of the injunction, or
has actual knowledge of the contents of the injunction, and has
violated or threatened to violate the injunction. When a law
enforcement officer does not have probable cause for arrest but does
have a reasonable suspicion supported by articulable facts that a
person has violated or threatened to violate that portion of an
injunction issued under the authority of this section, the law
enforcement officer has the authority and may briefly detain any
person reasonably suspected of violating, threatening, or having
threatened, to violate that portion of the injunction issued under the
authority of this section, and to prevent the injury or abuse of any
person or a breach of the peace. Any person arrested for violating or
threatening to violate an injunction authorized by this section may be
incarcerated and must be taken before the family court that issued the
injunction, or a magistrate, as expeditiously as circumstances permit
and dealt with according to law.
(C) Any person subject to an injunction issued under
the authority of this section who knowingly disobeys or violates any
term, provision, or command of the injunction that enjoins that
person from interposing any restraint upon the personal liberty of, or
from harming, interfering with, or molesting the person or persons
protected by the injunction, and any person who is a party to the
action who violates the injunction by doing or threatening to do any
act calculated to prevent or interfere with a reconciliation of the
husband and wife or other amicable adjustment of the action, may be
held in contempt of court and punished as the court issuing the
injunction may direct.
(D) Whenever any act, omission, or conduct of any person who
violates the terms of an injunction issued under the authority of this
section also constitutes a violation of the criminal law of this state,
the court issuing the injunction, upon learning of the violation of the
criminal law, must, on its own motion, relinquish and by appropriate
order transfer jurisdiction of all criminal aspects of the case to a court
of competent criminal jurisdiction for prosecution of the criminal
offense according to law. The court transferring jurisdiction of a
criminal matter to another court for prosecution shall retain
jurisdiction of all civil aspects of the case and continue the civil
proceedings until concluded according to law. In addition, so long
as no person is subject for the same offense to be twice put in
jeopardy, a person violating any portion of an injunction issued by
the family court, including that portion of an injunction issued under
the authority of this section, may be held in contempt by the family
court as in other cases."
SECTION 2. Section 16-3-1700 of the 1976 Code, as added
by Act 94 of 1995, is amended to read:
"Section 16-3-1700. As used in this article:
(A) 'Harassment' means a pattern of intentional, substantial, and
unreasonable intrusion into the private life of a targeted person that
causes the person and would cause a reasonable person in his position
to suffer mental distress. Harassment may include, but is not limited
to:
(1) following the targeted person as he moves from location to
location;
(2) visual, physical, or verbal 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.;
and
(5) violation of an injunction issued under the authority of
Section 20-3-110.
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, licensed private detectives, or
process servers performing their authorized or official
duties. in a lawful manner.
(B) 'Stalking' means a pattern of words or conduct that 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, licensed private detectives, or
process servers performing their authorized or official
duties. in a lawful manner.
(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.
(E) 'Family' means a spouse, child, parent, sibling, or a person
who regularly resides in the same household as the targeted person."
SECTION 3. Section 16-3-1750(A) of the 1976 Code, as added by
Act 94 of 1995, is amended to read:
"(A) Under this article, the magistrate's court shall have
jurisdiction over an action seeking a restraining order against a
person engaged in harassment or stalking., including
concurrent jurisdiction to restrain conduct by any person in violation
of an existing injunction issued by the family court under the
authority of Section 20-3-110 pending further action in connection
with the violation or enforcement of the existing injunction by the
family court."
SECTION 4. Section 16-3-1760(A) of the 1976 Code, as added by
Act 94 of 1995, is amended to read:
"(A) Within twenty-four hours after the filing of a complaint and
motion seeking a restraining order under 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, or an authentic copy of an existing injunction issued
by a family court under the authority of Section 20-3-110, proof of
service of the injunction on the person violating the injunction, and
facts showing the violation or threatened violation of the injunction
verified by supporting affidavits, constitutes good cause."
SECTION 5. Section 16-3-1770 of the 1976 Code, as added by
Act 94 of 1995, is amended to read:
"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 court.
(B) The terms of the restraining order shall 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,
other than a restraining order requiring a person to refrain from
violating an existing injunction issued by a family court under the
authority of Section 20-3-110, conspicuously shall 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;'
(D) A restraining order issued pursuant to this article to
restrain conduct in violation of an existing injunction issued by a
family court under the authority of Section 20-3-110 conspicuously
shall bear the following language: 'Violation of this order, requiring
you to refrain from violating the existing injunction issued by the
family court under the authority of Section 20-3-110, is a criminal
offense punishable in magistrate's court by thirty days in jail, a fine
of five hundred dollars, or both. Actual violation of the existing
injunction issued by the family court under the authority of Section
20-3-110 is a separate matter within the jurisdiction of the family
court for which you may be held in civil or criminal contempt by the
family court and punished in accordance with law.'
(E) A magistrate's court called upon to act pursuant to this article
to restrain a violation of an existing injunction issued by a family
court under the authority of Section 20-3-110 must promptly, and no
later than three days after the magistrate court's action, notify the
family court of the action taken by the magistrate's court by
forwarding a complete copy of its records and files pertaining to the
action taken to the clerk of the family court that issued the prior
injunction, together with full and complete statements of all witnesses
appearing before the magistrate's court, including the statements of
law enforcement officers, and legible copies of all incident or police
reports made and filed by law enforcement officers involved in the
case. Upon receipt of the magistrate's court's return the family court
may schedule a hearing and take such other and further action as may
be necessary in connection with the matter reported on by the
magistrate's court."
SECTION 6. The 1976 Code is amended by adding:
"Section 16-3-1850. To preserve the jurisdiction, power, and
authority of the family court to punish violators of, and to otherwise
enforce its existing injunctions, a magistrate's court, after issuing and
serving an order of the magistrate's court restraining a person from
violating an existing injunction issued by a family court under the
authority of Section 20-3-110, may find a person violating the
magistrate's court order guilty of the offense of violating the order of
the magistrate's court only after making the return to the family court
required by Section 16-3-1770(E) and relinquishment and transfer by
appropriate order of the jurisdiction of the criminal aspects of the
case that are within the criminal jurisdiction of the magistrate's court.
Under no circumstances may a magistrate's court usurp the power
and jurisdiction of the family court to punish violators of the family
court's existing injunction issued under the authority of Section
20-3-110, or to otherwise enforce its prior injunction by civil
contempt proceedings, criminal contempt proceedings, or otherwise.
A magistrate's court may sentence a person who has been charged
with violating an existing injunction issued by a family court under
the authority of Section 20-3-110 for any criminal offense within the
magistrate court's jurisdiction for which the person is convicted in
separate proceedings not involving punishing the person for the
actual violation of the family court's existing injunction, and for any
offense within the magistrate court's jurisdiction that is transferred
from a family court to the magistrate's court for prosecution,
provided no person shall be subject for the same offense to be twice
put in jeopardy."
SECTION 7. This act takes effect upon approval by the Governor.
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