H*3459 Session 111 (1995-1996)
H*3459(Rat #0147, Act #0094 of 1995) General Bill, By L.M. Martin, Allison,
Askins, J.M. Baxley, Boan, Cato, Clyburn, Davenport, Delleney, R.C. Fulmer,
Gamble, H.M. Hallman, Harrell, J.L. Harris, Harrison, J. Hines, T.E. Huff,
Jennings, Kelley, Lanford, L.H. Limbaugh, Littlejohn, Mason, McCraw, McKay,
Meacham, Neilson, Phillips, Rice, Robinson, Sandifer, Sharpe, J.S. Shissias,
Simrill, D. Smith, R. Smith, Spearman, P.H. Thomas, Townsend, Walker,
C.C. Wells, Whipper, L.S. Whipper, S.S. Wofford, D.A. Wright and Young-Brickell
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 House Introduced and read first time HJ-3
02/02/95 House Referred to Committee on Judiciary HJ-3
03/21/95 House Committee report: Favorable with amendment
Judiciary HJ-3
03/23/95 House Amended HJ-13
03/23/95 House Read second time HJ-14
03/23/95 House Unanimous consent for third reading on next
legislative day HJ-14
03/24/95 House Read third time and sent to Senate HJ-1
03/28/95 Senate Introduced and read first time SJ-14
03/28/95 Senate Referred to Committee on Judiciary SJ-14
04/27/95 Senate Committee report: Favorable with amendment
Judiciary SJ-16
05/10/95 Senate Amended SJ-18
05/10/95 Senate Read second time SJ-18
05/10/95 Senate Ordered to third reading with notice of
amendments SJ-18
05/11/95 Senate Read third time and returned to House with
amendments SJ-28
05/16/95 House Concurred in Senate amendment and enrolled HJ-5
06/06/95 Ratified R 147
06/12/95 Signed By Governor
06/12/95 Effective date 06/12/95
08/15/95 Copies available
08/15/95 Act No. 94
(A94, R147, H3459)
AN ACT 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:
Harassment and stalking
SECTION 1. Chapter 3, Title 16 of the 1976 Code is amended by
adding:
"Article 17
Harassment and Stalking
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.
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) `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 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.
(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 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.
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 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 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 a 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.
(E) Notwithstanding any other provision of law, a restraining order or
a temporary restraining order issued pursuant to this article shall be
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 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'.
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 16-3-1840. As a condition of bail, a magistrate may order a
defendant charged with harassment or stalking under this article to
undergo a mental health evaluation performed by the local mental health
department."
Repeal
SECTION 2. Section 16-3-1070 of the 1976 Code is repealed.
Time effective
SECTION 3. This act takes effect upon approval by the Governor.
Approved the 12th day of June, 1995. |