S 0447 General Bill, By H.S. Stilwell, Bryan, Cork, Courtney, Hayes, Russell, 
J.V. Smith, Washington and Wilson
 A Bill to amend Chapter 3, Title 16, Code of Laws of South Carolina, 1976, by
 adding Article 17 so as to prohibit harassment and stalking, to provide
 definitions, to provide penalties, and to authorize temporary restraining
 orders; and to repeal Section 16-3-1070, relating to the crime of stalking.

   02/02/95  Senate Introduced and read first time SJ-2
   02/02/95  Senate Referred to Committee on Judiciary SJ-2

A BILL

TO AMEND CHAPTER 3, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 17 SO AS TO PROHIBIT HARASSMENT AND STALKING, TO PROVIDE DEFINITIONS, TO PROVIDE PENALTIES, AND TO AUTHORIZE TEMPORARY RESTRAINING ORDERS; AND TO REPEAL SECTION 16-3-1070, RELATING TO THE CRIME OF STALKING.

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

SECTION 1. Chapter 3, Title 16 of the 1976 Code is amended by adding:

Section 16-3-1700. For the purpose of 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 it not limited to:

(1) following the targeted person as he travels;

(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.

Harassment does not include words or conduct that are protected by the Constitution of this State or the United States.

(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 are protected by the Constitution of this State or the United States.

(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 16-3-1710. (A) A person who engages in harassment 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 against a person within seven years of a prior conviction of harassment 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.

Section 16-3-1720. (A) A person who engages in stalking 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.

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

(C) A person who engages in stalking a person within seven years of 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.

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 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 ten thousand dollars, imprisoned not more than fifteen years, or both.

Section 16-3-1740. Before sentencing a person convicted of stalking, 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 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 this article, the magistrate's court shall have jurisdiction over an action seeking a restraining order against a person engaged in harassment 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 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 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 magistrate's court shall provide forms to facilitate the preparation and filing of a complaint, and motion for restraining order by a plaintiff not represented by counsel. The court also shall provide forms to facilitate the preparation and filing of motions and affidavits to proceed in forma pauperis.

Section 16-3-1760. (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, 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 period. The Rule to Show Cause shall 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 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 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 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 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, in addition to ordinary contempt proceedings'.

Section 16-3-1780. (A) A temporary restraining order shall remain in effect until the hearing on the Rule to Show Cause why the order should not be extended for the full six-month 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, 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 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 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 in effect beyond the six-month 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's court shall 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.

Section 16-3-1800. Law enforcement officers shall 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 or stalking incident is to enforce the law and protect the complainant.

(B) The law enforcement officer shall 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 or stalking, files a criminal complaint, files a complaint for a restraining order, or who participates in a judicial proceeding under 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 this article is in addition to other civil and criminal remedies."

SECTION 2. Section 16-3-1070 of the 1976 Code is repealed.

SECTION 3. This act takes effect upon approval by the Governor.