Current Status Introducing Body:House Bill Number:4934 Primary Sponsor:Cobb-Hunter Committee Number:25 Type of Legislation:GB Subject:Domestic violence and assault Residing Body:House Current Committee:Judiciary Computer Document Number:CYY/15894AC.94 Introduced Date:19940317 Last History Body:House Last History Date:19940317 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Cobb-Hunter Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
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4934 House 19940317 Introduced, read first time, 25
referred to Committee
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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:
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.