Current Status Bill Number:3825 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970403 Primary Sponsor:J. Smith All Sponsors:J. Smith, Pinckney, Cobb-Hunter, Hodges, Neal, Harrell and Cromer Drafted Document Number:egm\18557djc.97 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Harassment, restraining orders, detailed provisions; Crimes and Offenses, Courts, Family
Body Date Action Description Com Leg Involved
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House 19970403 Introduced, read first time, 25 HJ
referred to Committee
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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.