S*0195(Rat #0514, Act #0519)  General Bill, By Hayes, Martin, Peeler, 
H.S. Stilwell and Wilson

Similar(H 3146)
 A Bill to amend Chapter 25, Title 16, Code of Laws of South Carolina, 1976, so
 as to create the criminal domestic violence of a high and aggravated nature
 and to provide a penalty for violation; to increase the penalty for the crime
 of criminal domestic violence, to increase the penalty for violating the terms
 and conditions of an order of protection, to delete references to family to
 conform to other provisions in this Act, and to authorize the court to suspend
 the imposition or execution of a violation of Sections 16-25-20 or 16-25-50;
 to amend Section 20-4-20, relating to the definitions used in the "Protection
 from Domestic Abuse Act"; so as to change the "family or household member" to
 "household member" and include in these definitions persons who have a child
 in common, and a male and female who are cohabitating or formerly have
 cohabitated, to delete from the definition of "order of protection" a
 reference to family; and to amend Section 20-4-40, relating to a petition for
 an order of protection, so as to delete references to family.-amended title

   01/13/93  Senate Introduced and read first time SJ-8
   01/13/93  Senate Referred to Committee on Judiciary SJ-8
   04/07/93  Senate Committee report: Favorable with amendment
                     Judiciary SJ-17
   04/13/93  Senate Amended SJ-23
   04/13/93  Senate Read second time SJ-28
   04/13/93  Senate Ordered to third reading with notice of
                     amendments SJ-28
   04/14/93  Senate Read third time and sent to House SJ-11
   04/15/93  House  Introduced and read first time HJ-5
   04/15/93  House  Referred to Committee on Judiciary HJ-6
   02/09/94  House  Committee report: Favorable with amendment
                     Judiciary HJ-22
   02/24/94  House  Debate adjourned until Tuesday, March 1, 1994 HJ-408
   03/01/94  House  Amended HJ-28
   03/01/94  House  Debate adjourned until Thursday, March 3, 1994 HJ-31
   03/07/94  House  Debate adjourned until Tuesday, March 15, 1994 HJ-15
   03/22/94  House  Amended HJ-32
   03/22/94  House  Read second time HJ-33
   03/23/94  House  Reconsider vote whereby read second time HJ-28
   03/23/94  House  Read second time HJ-30
   03/24/94  House  Read third time and returned to Senate with
                     amendments HJ-14
   03/29/94  Senate Non-concurrence in House amendment SJ-21
   03/30/94  House  House insists upon amendment and conference
                     committee appointed Reps. Hodges, Harrell &
                     Thomas HJ-3
   03/30/94  Senate Conference committee appointed Sens. Hayes, G.
                     Smith, Cork SJ-7
   06/01/94  Senate Free conference powers granted SJ-19
   06/01/94  Senate Free conference committee appointed Sens. Hayes,
                     G. Smith, Cork SJ-19
   06/01/94  Senate Free conference report received and adopted SJ-19
   06/01/94  House  Free conference powers granted HJ-289
   06/01/94  House  Free conference committee appointed Reps. Hodges,
                     Harrell & Thomas HJ-291
   06/01/94  House  Free conference report received and adopted HJ-291
   06/01/94  Senate Ordered enrolled for ratification SJ-25
   06/02/94         Ratified R 514
   09/23/94         Signed By Governor
   09/23/94         Effective date 09/23/94
   10/03/94         Copies available

AN ACT TO AMEND CHAPTER 25, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO CREATE THE CRIME OF CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE AND TO PROVIDE A PENALTY FOR VIOLATION; TO INCREASE THE PENALTY FOR THE CRIME OF CRIMINAL DOMESTIC VIOLENCE, TO INCREASE THE PENALTY FOR VIOLATING THE TERMS AND CONDITIONS OF AN ORDER OF PROTECTION, TO DELETE REFERENCES TO FAMILY TO CONFORM TO OTHER PROVISIONS IN THIS ACT, AND TO AUTHORIZE THE COURT TO SUSPEND THE IMPOSITION OR EXECUTION OF A VIOLATION OF SECTION 16-25-20 OR 16-25-50; TO AMEND SECTION 20-4-20, RELATING TO THE DEFINITIONS USED IN THE "PROTECTION FROM DOMESTIC ABUSE ACT" SO AS TO CHANGE THE "FAMILY OR HOUSEHOLD MEMBER" TO "HOUSEHOLD MEMBER" AND INCLUDE IN THESE DEFINITIONS "PERSONS WHO HAVE A CHILD IN COMMON, AND A MALE AND FEMALE WHO ARE COHABITATING OR FORMERLY HAVE COHABITATED", TO DELETE FROM THE DEFINITION OF "ORDER OF PROTECTION" A REFERENCE TO FAMILY; AND TO AMEND SECTION 20-4-40, RELATING TO A PETITION FOR AN ORDER OF PROTECTION, SO AS TO DELETE REFERENCES TO FAMILY.

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

Criminal domestic violence of a high and aggravated nature

SECTION 1. Chapter 25, Title 16 of the 1976 Code is amended to read:

Section 16-25-10. As used in this article, `household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited.

Section 16-25-20. It is unlawful to: (1) cause physical harm or injury to a person's own household member, (2) offer or attempt to cause physical harm or injury to a person's own 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 the misdemeanor of criminal domestic violence and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days.

Section 16-25-40. Any person who violates Section 16-25-20 after having previously been convicted of two violations of Section 16-25-20 or two violations of Section 16-25-65 or a violation of Section 16-25-20 and a violation of Section 16-25-65 is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than three years, or both.

Section 16-25-50. 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 and, upon conviction, must be imprisoned not more than thirty days or fined not more than five hundred dollars. A person found guilty of a violation of Section 16-25-20 and this section may not be sentenced under both sections for the same offense.

Section 16-25-60. (A) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a person charged with a violation provided in this chapter shall appear before a judge for disposition of the case.

(B) When a person is convicted of a violation of Section 16-25-20 or 16-25-50, the court may suspend the imposition or execution of all or part of the sentence conditioned upon 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.

(C) When a person is convicted of a violation of Section 16-25-40 or 16-25-65, 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 and this section;

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

(D) In determining whether or not to suspend the imposition or execution of all or part of a sentence as provided in this section, the court must consider the nature and severity of the offense, the number of times the offender has repeated the offense, and the best interests and safety of the victim. A court may require an offender to pay for participation in a program or treatment or counseling as an appropriate term or condition for suspending the imposition or execution of all or part of a sentence.

Section 16-25-65. (A) The elements of the common law crime of assault and battery of a high and aggravated nature are incorporated in and made a part of the offense of criminal domestic violence of a high and aggravated nature when a person violates the provisions of Section 16-25-20 and the elements of assault and battery of a high and aggravated nature are present.

(B) A person who commits the crime of criminal domestic violence of a high and aggravated nature is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than ten years, or both.

(C) The provisions of this section create a statutory offense of criminal domestic violence of a high and aggravated nature and must not be construed to codify the common law crime of assault and battery of a high and aggravated nature.

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, 16-25-50, or 16-25-65 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."

Definition

SECTION 2. Section 20-4-20(b) of the 1976 Code is amended to read:

"(b) `Household member' means spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited."

Definition

SECTION 3. Section 20-4-20(f) of the 1976 Code is amended to read:

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

Petition for an order of protection

SECTION 4. Section 20-4-40 of the 1976 Code is amended to read:

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

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

(b) A petition for relief must allege the existence of abuse to a 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."

Time effective

SECTION 5. This act takes effect upon approval by the Governor.

Approved the 23rd day of September, 1994.