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Current Status Bill Number:View additional legislative information at the LPITS web site.3056 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20010109 Primary Sponsor:Meacham-Richardson All Sponsors:Meacham-Richardson, Simrill, A. Young, Stille, White, Perry, Rodgers, Gilham, Lourie Drafted Document Number:l:\council\bills\skb\18030som01.doc Residing Body:Senate Date of Last Amendment:20020501 Subject:Criminal domestic violence, offender penalties and program, additional offenses; Crimes and Offenses, Domestic Relations History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ Senate 20020522 Committee report: Favorable with 11 SJ amendment Senate 20020502 Introduced, read first time, 11 SJ referred to Committee House 20020502 Read third time, sent to Senate House 20020501 Amended, read second time House 20020430 Request for debate by Representative Loftis Rivers Kennedy House 20020430 Amended House 20020430 Debate interrupted House 20020430 Request for debate by Representative Altman Lloyd House 20020425 Co-Sponsor added (Rule 5.2) by Rep. Lourie House 20020424 Committee report: Favorable with 25 HJ amendment House 20020226 Co-Sponsor added (Rule 5.2) by Rep. Gilham House 20010221 Co-Sponsor added (Rule 5.2) by Rep. Rodgers House 20010215 Co-Sponsor added (Rule 5.2) by Rep. Stille White Perry House 20010124 Co-Sponsor removed (Rule 5.2) by Rep. Cobb-Hunter House 20010118 Co-Sponsor added (Rule 5.2) by Rep. Cobb-Hunter House 20010109 Introduced, read first time, 25 HJ referred to Committee House 20001206 Prefiled, referred to Committee 25 HJ Versions of This Bill Revised on April 24, 2002 - Word format Revised on April 30, 2002 - Word format Revised on May 1, 2002 - Word format Revised on May 22, 2002 - Word format
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 22, 2002
H. 3056
Introduced by Reps. Meacham-Richardson, Simrill, A. Young, Stille, White, Perry, Rodgers, Gilham and Lourie
S. Printed 5/22/02--S.
Read the first time May 2, 2002.
To whom was referred a Bill (H. 3056) to enact the "Domestic Violence Prevention Act of 2001" including provisions to amend Section 16-3-20, as amended, relating to the punishment for murder, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. This act may be cited as the "Domestic Violence Prevention Act of 2002".
SECTION 2. Section 16-3-20(C)(a) of the 1976 Code is amended by adding at the end:
"(12) The murder was committed in violation of:
(a) a valid order of protection in effect at the time of the murder whether issued:
(i) pursuant to Chapter 4, Title 20, the 'Protection from Domestic Abuse Act'; or
(ii) pursuant to a similar provision of law of another jurisdiction;
(b) a valid restraining order in effect at the time of the murder issued as part of a decree pursuant to a family court proceeding; or
(c) a restraining order in effect at the time of the murder issued pursuant to Section 16-3-1750 against a person engaged in harassment or stalking. However, a violation of an order of protection or restraining order issued against both the defendant and the victim does not constitute an aggravating circumstance under this section.
(13) The murder was committed against a victim who was a household member as defined in either Section 20-4-20(b) or Section 16-25-10 and the defendant had at least one prior conviction for committing one of the following offenses against the victim:
(a) assault and battery of a high and aggravated nature;
(b) assault and battery with intent to kill;
(c) an offense listed in Chapter 25, Title 16;
(d) an offense listed in Chapter 3, Title 16; or
(e) an offense of another jurisdiction similar to the ones listed in this subitem."
SECTION 3. Section 16-25-10 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, a person under the age of eighteen living in the household, a person who functions cognitively or adaptively under the age of eighteen who lives in the household, and a male and female who are cohabiting or formerly have cohabited."
SECTION 4. Section 16-25-30 of the 1976 Code is amended to read:
"Section 16-25-30. (A) Any A 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. A person who violates Section 16-25-20 and who has been convicted of a violation of that Section within the previous ten years, is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars and imprisoned not more than thirty days. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program but no one shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse
problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(B) The offender may, after ten years from the date of conviction under this section, apply or cause someone acting on his behalf to apply, to the court for an order expunging the records of the arrest and conviction. The court must issue an order expunging the records if the following conditions are met:
(1) the offender has had no other conviction during the ten-year period following the conviction under this section;
(2) the offender previously has not participated in a pretrial intervention program for first offense criminal domestic violence; and
(3) the offender must have completed, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
No person has any rights under this section more than one time. After the expungement, the South Carolina Law Enforcement Division must keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Chapter 4 of Title 30 or any other provision of law, except to authorized law enforcement or court officials who need this information to prevent the rights afforded by this section from being taken advantage of more than once."
SECTION 5. Section 16-25-40 of the 1976 Code is amended to read:
"Section 16-25-40. Any A person who violates Section 16-25-20 after previously 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 less than ninety days but not more than three years, or both. The court may suspend the imposition or execution of all or part of
the sentence, except the mandatory ninety-day minimum sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services."
SECTION 6. Section 16-25-50 of the 1976 Code is amended to read:
"Section 16-25-50. A person violating who violates the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the 'Protection from Domestic Abuse Act', or a valid protection order related to domestic or family violence issued by a court of another state, tribe, or territory is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or and fined not more than five hundred dollars. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services. A person found guilty convicted of a violation of Section 16-25-20 and this section may not be sentenced under both sections for the same offense. A person convicted of a violation of Section 16-25-65 and this section for the same offense must be imprisoned for not more than ten years as provided for in Section 16-25-65."
SECTION 7. Section 16-25-60 of the 1976 Code is amended to read:
"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 must 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 offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(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, except for the minimum mandatory sentence, and place the offender on probation, conditioned upon:
(1) the offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services;
(2) fulfillment of all the obligations arising under court order pursuant to Section 20-4-60 and this section; and
(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 8. Section 16-25-65 of the 1976 Code is amended to read:
"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.
A person who violates Section 16-25-20 is guilty of the offense of criminal domestic violence of a high and aggravated nature when one of the following occurs:
(1) the person intentionally commits an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or
(2) the person intentionally commits an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.
(B) A person who commits the a crime of criminal domestic violence of a high and aggravated nature contained in subsection (A) is guilty of a misdemeanor felony and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than ten years, or both. The court may suspend the imposition or execution of all or part of the sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person shall be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order or the batterer treatment program may refer the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(C) The provisions of this section subsection (A) 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 9. Section 16-25-70 of the 1976 Code is amended to read:
"Section 16-25-70. (A) A law enforcement officer may arrest, with or without a warrant, a person at 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 a 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 law enforcement agency. A law enforcement agency must complete an investigation of an alleged violation of this chapter even if the law enforcement agency was not notified at the time the alleged violation occurred. A charge may be brought only by presenting the results of the investigation conducted by the law enforcement agency and any other evidence for review by a judge who may issue an arrest warrant upon a showing of probable cause.
(B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a 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. If no physical manifestation of injury can be determined and there is insufficient probable cause, the officer is not required to make an arrest. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department law enforcement agency.
(C) 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 a family or household member.
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer shall must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer shall must consider:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement by a party.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.
(H) No evidence other than evidence of violations of this article found as a result of a warrantless search is admissible in a court of law. Evidence discovered as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in a court of law:
(1) if it is found:
(a) in plain view of a law enforcement officer in a room in which the officer is interviewing, detaining, or pursuing a suspect; or
(b) pursuant to a search incident to a lawful arrest for a violation of this article or for a violation of Chapter 3, Title 16; or
(2) if it is evidence of a violation of this article.
An officer may arrest and file criminal charges against a suspect for any offense that arises from evidence discovered pursuant to this section.
Unless otherwise provided for in this section, no evidence of a crime found as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in any court of law.
(I) In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, wilfulness, or wantonness."
SECTION 10. Section 17-22-50 of the 1976 Code is amended to read:
"Section 17-22-50. (A) A person may shall not be considered for intervention if:
(1) he has previously has been accepted into an intervention program nor may intervention be considered for those individuals; or
(2) the person is charged with:
(a) blackmail,;
(b) driving under the influence of intoxicating liquor or drugs,;
(c) any a traffic-related offense which is punishable only by fine or loss of points, or;
(d) any a fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen points as provided in Section 50-9-1020, or;
(e) any a crime of violence as defined in Section 16-1-60; or
(f) an offense contained in Chapter 25 of Title 16 if the offender has been convicted previously of a violation of that chapter or a similar offense in another jurisdiction.
(B) However, this section does not apply if the solicitor determines the elements of the crime do not fit the charge."
SECTION 11. 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, a person under the age of eighteen living in the household, a person who functions cognitively or adaptively under the age of eighteen who lives in the household, and a male and female who are cohabiting or formerly have cohabited."
SECTION 12. The 1976 Code is amended by adding:
"Section 22-5-920. Following a first offense conviction as a youthful offender, the defendant after ten years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50, or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, to an offense classified as a violent crime in Section 16-1-60, to an offense contained in Chapter 25 of Title 16, except as otherwise provided in Section 16-25-30, or to the offense of committing a lewd act upon a child under sixteen, as provided for in Section 16-15-130. If the defendant has had no other conviction during the ten-year period following the first offense conviction as a youthful offender, the circuit court may issue an order expunging the records. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred before the effective date of this section.
After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Chapter 4 of Title 30 or any other provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once.
As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail."
SECTION 13. This act takes effect January 1, 2003, and applies to all offenses occurring on or after that date. /
Renumber sections to conform.
Amend title to conform.
C. BRADLEY HUTTO for Committee.
TO ENACT THE "DOMESTIC VIOLENCE PREVENTION ACT OF 2001" INCLUDING PROVISIONS TO AMEND SECTION 16-3-20, AS AMENDED, RELATING TO THE PUNISHMENT FOR MURDER, SO AS TO ADD AS SEPARATE AGGRAVATING CIRCUMSTANCES WHICH MAY BE CONSIDERED IN THE DETERMINATION OF THE SENTENCE TO BE IMPOSED, A MURDER COMMITTED IN VIOLATION OF A PROTECTIVE ORDER OR A RESTRAINING ORDER, AND A MURDER COMMITTED AGAINST A HOUSEHOLD MEMBER WHEN THE DEFENDANT HAD A PRIOR CONVICTION FOR COMMITTING CERTAIN LISTED OFFENSES AGAINST THE HOUSEHOLD MEMBER VICTIM; TO AMEND SECTIONS 16-25-30, 16-25-40, 16-25-50, 16-25-60, 16-25-70, ALL AS AMENDED, AND SECTION 16-25-65, ALL RELATING TO PROCEDURES AND PENALTIES FOR CRIMINAL DOMESTIC VIOLENCE SO AS TO DELETE FINES AS A PENALTY FOR THESE OFFENSES AND TO AUTHORIZE SUSPENSION OF THE SENTENCE IMPOSED, EXCEPT MANDATORY MINIMUM SENTENCES WHERE APPLICABLE, UPON THE OFFENDER SATISFACTORILY COMPLETING AN APPROVED TREATMENT PROGRAM FOR BATTERERS, TO PROVIDE THAT THE SOLICITOR MAY NOT DROP A CRIMINAL DOMESTIC VIOLENCE CHARGE BEFORE TRIAL, TO CREATE THE OFFENSE OF CRIMINAL DOMESTIC VIOLENCE IN THE PRESENCE OF A MINOR AND TO PROVIDE PENALTIES; TO AMEND SECTION 17-22-50, AS AMENDED, RELATING TO PERSONS NOT TO BE CONSIDERED FOR A PRETRIAL INTERVENTION PROGRAM, SO AS TO PROVIDE THAT PERSONS CHARGED WITH CRIMINAL DOMESTIC VIOLENCE OFFENSES UNDER TITLE 16, CHAPTER 25 MAY NOT BE CONSIDERED FOR THIS PROGRAM; AND TO AMEND SECTION 22-5-510, AS AMENDED, RELATING TO BOND HEARINGS AND THE RELEASE OF DEFENDANTS, SO AS TO REQUIRE A MAGISTRATE TO HOLD A DEFENDANT IN A CASE INVOLVING CRIMINAL DOMESTIC VIOLENCE FORTY-EIGHT HOURS AFTER ARREST, UPON GOOD CAUSE SHOWN AT THE BOND HEARING.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Domestic Violence Prevention Act of 2002".
SECTION 2. The 1976 Code is amended by adding:
"Section 16-25-35. A person who violates Section 16-25-20, and who has previously been convicted of a violation of that section or Section 16-25-65 within the previous ten years, is guilty of the misdemeanor of criminal domestic violence and, upon conviction, must be fined not more than five hundred dollars and imprisoned not more than thirty days. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services."
SECTION 3. Section 16-3-20(C)(a) of the 1976 Code, as last amended by Act 317 of 1996, is further amended by adding at the end:
"( 12 ) The murder was committed in violation of:
(a) a valid order of protection in effect at the time of the murder whether issued:
(i) pursuant to Chapter 4, Title 20, the 'Protection from Domestic Abuse Act'; or
(ii) pursuant to a similar provision of law of another jurisdiction;
(b) a valid restraining order in effect at the time of the murder issued as part of a decree pursuant to a family court proceeding; or
(c) a restraining order in effect at the time of the murder issued pursuant to Section 16-3-1750 against a person engaged in harassment or stalking. However, a violation of an order of protection or restraining order issued against both the defendant and the victim does not constitute an aggravating circumstance under this section.
(13) The murder was committed against a victim who was a household member as defined in either Section 20-4-20(b) or Section 16-25-10 and the defendant had at least one prior conviction for committing one of the following offenses against the victim:
(a) assault and battery of a high and aggravated nature;
(b) assault and battery with intent to kill;
(c) an offense listed in Chapter 25, Title 16;
(d) an offense listed in Chapter 3, Title 16; or
(e) an offense of another jurisdiction similar to the ones listed in this subitem."
SECTION 4. Section 16-25-30 of the 1976 Code, as last amended by Act 519 of 1994, is further amended to read:
"Section 16-25-30. (A) Any A 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. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(B) After a conviction under this section, the offender may, after five years from the date of the conviction, apply, or cause someone acting on his behalf to apply, to the court for an order expunging the records of the arrest and conviction. The court shall issue an order expunging the records if the following conditions are met:
(1)The offender has had no other conviction during the five-year period following the conviction under this section;
(2) The offender previously has not participated in a pretrial intervention program for first offense criminal domestic violence; and
(3) The offender must have completed, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
No person has any rights under this section more than one time. After the expungement, the South Carolina Law Enforcement Division must keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under the Freedom of Information Act, or any other provision of law, except to authorized law enforcement or court officials who need this information to prevent the rights afforded by this section from being taken advantage of more than once."
SECTION 5. Section 16-25-40 of the 1976 Code, as last amended by Act 519 of 1994, is further amended to read:
"Section 16-25-40. Any A person who violates Section 16-25-20 after previously 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 less than ninety days or more than three years, or both. The court may suspend the imposition or execution of all or part of the sentence, except the mandatory ninety-day minimum sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services."
SECTION 6. Section 16-25-50 of the 1976 Code, as last amended by Act 312 of 1998, is further amended to read:
"Section 16-25-50. A person violating the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the 'Protection from Domestic Abuse Act' or a valid protection order related to domestic or family violence issued by a court of another state, tribe, or territory is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or and fined not more than five hundred dollars. The court may suspend the imposition or execution of all or part of the sentence conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services. 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. A person found guilty of a violation of Section 16-25-65 and this section for the same offense must be sentenced under Section 16-25-65."
SECTION 7. Section 16-25-60 of the 1976 Code, as last amended by Act 138 of 1995, is further amended to read:
"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 offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(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, except for the minimum mandatory sentence, and place the offender on probation, conditioned upon:
(1) the offender completing, to the satisfaction of the court, a program designed to treat battering spouses where available or in other appropriate psychiatric or therapeutic treatment or counseling batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services;
(2) fulfillment of all the obligations arising under court order pursuant to Section 20-4-60 and this section; and
(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 8. Section 16-25-65 of the 1976 Code, as added by Act 516 of 1994, is amended to read:
"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.
A person who violates Section 16-25-20 is guilty of the offense of criminal domestic violence of a high and aggravated nature when one of the following occurs:
(1) the person intentionally commits an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or
(2) the person intentionally commits an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.
(B) A person who commits the a crime of criminal domestic violence of a high and aggravated nature contained in subsection (A) is guilty of a misdemeanor felony and, upon conviction, must be fined not more than three thousand dollars or imprisoned not more than ten years, or both. The court may suspend the imposition or execution of all or part of the sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender shall pay a reasonable fee for participation in the treatment program but no one will be denied treatment due to an inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment through the Department of Alcohol and Other Drug Abuse Services.
(C) The provisions of this section subsection (A) 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 9. Section 16-25-70(A) of the 1976 Code, as last amended by Act 83 of 1995, is further amended to read:
"(A) A law enforcement officer may arrest, with or without a warrant, a person at 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 a 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 communications with the appropriate police department. If a violation of this chapter is reported at a later time, and a law enforcement agency was not notified at the time the alleged violation occurred, the law enforcement agency must complete an investigation of the allegations. A charge may be brought only by presenting the results of the investigation conducted by the law enforcement agency and any other evidence for review by a judge who may issue an arrest warrant upon a showing of probable cause."
SECTION 10. Section 17-22-50 of the 1976 Code, as last amended by Act 499 of 1992, is further amended to read:
"Section 17-22-50. (A) A person may not be considered for intervention if:
(1) he has previously has been accepted into an intervention program nor may intervention be considered for those individuals; or
(2) The person is charged with:
(a) blackmail,
(b) driving under the influence of intoxicating liquor or drugs,
(c) any a traffic-related offense which is punishable only by fine or loss of points, or
(d) any a fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen points as provided in Section 50-9-1020, or
(e) any a crime of violence as defined in Section 16-1-60, or
(f) an offense contained in Chapter 25 of Title 16 if the offender has been previously convicted of a violation of that chapter or a similar offense in another jurisdiction.
(B) However, this section does not apply if the solicitor determines the elements of the crime do not fit the charge."
SECTION 11. Section 16-3-26(A) of the 1976 Code, as last amended by Act 458 of 1996, is further amended to read:
"(A) (1) Whenever the solicitor seeks the death penalty he shall notify the defense attorney of his intention to seek such penalty at least thirty days prior to the trial of the case. At the request of the defense attorney, the defense attorney shall be excused from all other trial duties ten days prior to the term of court in which the trial is to be held.
(2) When a solicitor gives a defense attorney notice of intent to seek the death penalty, he also must provide a copy of the notice of intent to seek the death penalty to the court administrator of this State and to the Commission on Indigent Defense. If he does not contain it in his notice, the solicitor notifying the court administrator of his intent to seek the death penalty in a death penalty case simultaneously must provide the court administrator with the information required by Section 14-29-10."
SECTION 12. Title 14 of the 1976 Code is amended by adding:
Section 14-29-10. (A) When a solicitor gives a defense attorney notice of the solicitor's intent to seek the death penalty as required under Section 16-3-26, the solicitor also must provide a copy of his notice of intent to seek the death penalty to the court administrator of this State.
(B) The solicitor's notice to the court administrator also must include the date the notice is made, the alleged crime, the date the alleged crime occurred, the county in which the alleged crime occurred, demographic information about the victim, and the person or persons charged with the crime, including their age, race, sex, and ethnic background.
(C) The court administrator must use data provided by the solicitors to maintain records and statistics regarding the basic information submitted by the solicitors.
(D) The Office of Court Administration must compile, collate, index, and maintain a file of the information required by subsection (B). The file must be available to the general public during the normal business hours of the offices of Court Administration.
(E) Nothing in this section may be construed to prohibit the Office of Court Administration from requiring solicitors to report information which is required by another statute to be reported to the office.
(F) If a person desires to question the accuracy or completeness of any information submitted by the solicitor to the Office of Court Administration, he may submit a written request to the Office of Court Administration. The request must include a statement of the alleged inaccuracy or incompleteness, and must specify any proof or corroboration available. Upon receipt of the request, the office, within sixty days of receipt of a written request for clarification, must review its information and forward the results of the review to the person requesting the review.
(G) If the office concurs in the allegations of inaccuracy or incompleteness, it must correct the record, and the office must inform the individual of its correction of any error in the record under this subdivision within sixty days.
(H) If the office denies the allegations of inaccuracy or incompleteness in the record, the matter, at the option of the applicant, may be referred for administrative adjudication in accordance with the rules of the local governing body.
(I) For purposes of this section, 'Court Administrator' and 'Office of Court Administration' have the same meaning and may be used interchangeably as the context may require.
(J) Nothing in this section, nor the failure of a solicitor to notify the court administrator of his intent to seek the death penalty or to supply the court administrator with information required by this section, nor the failure of the court administrator or another person to comply with this section, may be taken or construed to confer a benefit or defense upon a defendant charged with a criminal offense in this State."
SECTION 13. Section 16-25-10 of the 1976 Code, as last amended by Act 519 or 1994, is further 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 14 Section 20-4-20(b) of the 1976 Code, as last amended by Act 519 of 1994, is further amended to read:
"(b) 'Household member'; means spouses, former spouses, 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 15. The 1976 Code is amended by adding:
"Section 22-5-920. Following a first offense conviction as a youthful offender, the defendant after fifteen years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, to an offense classified as a violent crime in Section 16-1-60, or to an offense contained in Chapter 25 of Title 16, except as otherwise provided in Section 16-25-30. If the defendant has had no other conviction during the fifteen-year period following the first offense conviction as a youthful offender, the circuit court may issue an order expunging the records. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred before the effective date of this section.
After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once.
As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail."
SECTION 16. Section 24-19-10(d)(i) of the 1976 Code, as last amended by Act 441 of 1996, is further amended to read:
"(i) under seventeen years of age and has been bound over for proper criminal proceedings to the court of general sessions pursuant to Section 20-7-7605 for allegedly committing an offense that is not a violent crime, as defined in Section 16-1-60, and that is a misdemeanor, a Class E or F felony, as defined in Section 16-1-20, or a felony which provides for a maximum term of imprisonment of less than fifteen years, or less; or/"
SECTION 17. This act takes effect January 1, 2003, and applies to all offenses occurring on or after that date.
This web page was last updated on Tuesday, December 8, 2009 at 4:14 P.M.