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Bill 3056

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

April 24, 2002

    H. 3056

Introduced by Reps. Meacham-Richardson, Simrill, A. Young, Stille, White, Perry, Rodgers and Gilham

S. Printed 4/24/02--H.

Read the first time January 9, 2001.

    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, so, 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:

    / 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, 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    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.    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.

JAMES H. HARRISON for Committee.

EXPLANATION OF IMPACT:

Department of Corrections

    The department forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation. Specifically, the pertinent sections that could impact the department are (1) Section 16-3-20(C)(a) relating to the addition of a separate aggravating circumstance of murder committed in violation of a protective order, (2) Section 16-25-20 which, through judicial discretion, may sentence an offender to prison in lieu of partial or full suspended sentences for completing court ordered treatment programs, and (3) Section 16-25-65 relating to the offense of criminal domestic violence committed in the presence of a minor. In each of these sections, the department notes that data is not available to accurately predict the number of convictions and the resultant admissions. Regardless, the department does not anticipate a significant inmate population increase.

Department of Probation, Parole & Pardon

    The department forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation. The department does not anticipate a significant population increase related to Section 16-25-40.

Prosecution Coordination Commission

    The commission forecasts no fiscal impact to the General Fund of the State with the passage of the proposed legislation. Charges that could result from Section 16-25-60 would be absorbed by each Solicitor's office, an expense borne by county government.

Commission on Appellate Defense

    The commission forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation. The commission notes that increased sentencing and associated appeals will result in a cost to the agency and the general fund.

Commission on Indigent Defense

    The commission forecasts a cost to the general fund and other funds with the passage of the proposed legislation. Specifically, while noting that costs are indeterminable, the commission anticipates that even one additional capital case resulting from the provision changes cited within the proposed legislation could cost the Death Penalty Trial Fund approximately $100,000.

Judicial Department

    The department has indicated that there would be a cost to the General Fund of the State. Specifically, while noting that costs are indeterminable, the Judicial Department anticipates that an increase in the number of domestic violence cases prosecuted could create the need for additional judges. The cost associated with one additional judge and staff (administrative assistant, court reporter and law clerk) is approximately $314,428 for personal services and associated operating expenses and $26,620 of non-recurring cost for automation and furniture. The addition of new judges would also require more courtroom space, an expense borne by county government.

LOCAL GOVERNMENT IMPACT:

    Pursuant to Section 2-7-76 of the Code of Laws of South Carolina, 1976, the Office of State Budget has surveyed members of the FIST Network. The responses will be forwarded upon receipt.

    Approved By:

    Don Addy

    Office of State Budget

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 2001".

SECTION    2.    Section 16-3-20(C)(a) of the 1976 Code, as last amended by Act 317 of 1996, is further amended by adding appropriately numbered subitems to read:

    "( )    The murder was committed in violation of:

        (1)    a valid order of protection in effect at the time of the murder whether issued:

            (a)    pursuant to Chapter 4, Title 20, the 'Protection from Domestic Abuse Act'; or

            (b)    pursuant to a similar provision of law of another jurisdiction;

        (2)    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

        (3)    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.

    ( )    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:

        (1)    assault and battery;

        (2)    assault and battery of a high and aggravated nature;

        (3)    assault and battery with intent to kill;

        (4)    an offense listed in Chapter 25, Title 16;

        (5)    an offense listed in Chapter 3, Title 16; or

        (6)    an offense of another jurisdiction similar to ones listed in this subitem."

SECTION 3.    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.    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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program with the fee to be determined on a sliding scale based on the offender's income."

SECTION 4.    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 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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program with the fee to be determined on a sliding scale based on the offender's income."

SECTION 5.    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 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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program with the fee to be determined on a sliding scale based on the offender's income. 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 6.    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 before the scheduled trial date, a person charged with a violation provided in this chapter shall appear before a judge for disposition of the case. The solicitor may not drop the charge on his own motion alone.

    (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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program, with the fee to be determined on a sliding scale based on the offender's income.

    (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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program, with the fee to be determined on a sliding scale based on the offender's income;

        (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 7.    Section 16-25-65 of the 1976 Code, as added by Act 516 of 1994, is further 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 A person who violates Section 16-15-20 is guilty of the offense of:

        (1) 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 of a high and aggravated nature or assault and battery of a high and aggravated nature are present.; or

        (2)    criminal domestic violence committed in the presence of a minor when the act is committed in the physical presence of a child under the age of eighteen years.

    (B) A person who commits the a crime of criminal domestic violence of a high and aggravated nature enumerated in subsection (A) is guilty of a misdemeanor felony and, upon conviction, must be fined not more than three thousand dollars or imprisoned not less than ninety days or more than ten years, or both. The court may suspend the imposition or execution of all or part of the sentence, except the mandatory ninety-day minimum, 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 South Carolina Coalition Against Domestic Violence and Sexual Assault. The offender shall pay a reasonable fee for participation in the treatment program with the fee to be determined on a sliding scale based on the offender's income.

    (C) The provisions of this section subsection (A)(1) 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 8.    Section 16-25-70(G) of the 1976 Code, as last amended by Act 120 of 1997, is further amended to read:

    "(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 must dismiss charges against the other party or parties."

SECTION 9.    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 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,

            (d) or 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.

    (B)    However, this section does not apply if the solicitor determines the elements of the crime do not fit the charge."

SECTION 10.        Section 22-5-510(B) of the 1976 Code, as last amended by Act 425 of 1998, is further amended to read:

    "(B)    A person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility. However, in cases involving violations of Chapter 25, Title 16, a magistrate, upon request from the alleged victim and upon good cause shown at the hearing, must deny the defendant's release until forty-eight hours after the defendant's arrest."

SECTION    11.    This act takes effect January 1, 2002, and applies to all offenses occurring on or after that date.

This web page was last updated on Thursday, June 25, 2009 at 2:09 P.M.