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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 27, 2008
H. 5001
Introduced by Reps. Owens, Hiott, F.N. Smith, Cotty, Haley, Simrill, Merrill, Spires, M.A. Pitts, Skelton, E.H. Pitts, Bedingfield, Kirsh, Mitchell, Perry, D.C. Smith, J.R. Smith, Erickson, Crawford, Daning, Leach, Ballentine, Bowen, Brantley, Cato, Clemmons, Clyburn, Cobb-Hunter, Dantzler, Duncan, Hamilton, Hardwick, Hosey, Jefferson, Kelly, Lowe, Mack, Moss, J.M. Neal, Rice, Scarborough, Shoopman, G.R. Smith, Taylor, Umphlett, Vick, Walker, White, Witherspoon and Young
S. Printed 5/27/08--S. [SEC 5/28/08 1:15 PM]
Read the first time April 30, 2008.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-25-125 SO AS TO CREATE THE OFFENSE OF TRESPASS UPON THE GROUNDS OR STRUCTURE OF A DOMESTIC VIOLENCE SHELTER AND TO PROVIDE A PENALTY; AND TO AMEND SECTION 16-25-70, AS AMENDED, RELATING TO A WARRANTLESS ARREST OR SEARCH WHEN A PERSON IS BELIEVED TO HAVE COMMITTED A CRIMINAL DOMESTIC VIOLENCE OFFENSE, SO AS TO CLARIFY A WARRANTLESS ARREST OR SEARCH MAY BE UNDERTAKEN BY LAW ENFORCEMENT WHEN THERE IS PROBABLE CAUSE TO BELIEVE A VIOLATION HAS OCCURRED.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 25, Title 16 of the 1976 Code is amended by adding:
"Section 16-25-125. (A) For purposes of this section:
(1) 'Domestic violence shelter' means a facility whose purpose is to serve as a shelter to receive and house persons who are victims of criminal domestic violence and that provides services as a shelter.
(2) 'Grounds' means the real property of the parcel of land upon which a domestic violence shelter or a domestic violence shelter's administrative offices are located, whether fenced or unfenced.
(3) 'Household member' means a household member as defined in Section 16-25-10.
(B) It is unlawful for a person who has been charged with or convicted of a violation of Section 16-25-20 or Section 16-25-65, who is subject to an order of protection issued pursuant to Chapter 4 of Title 20, or who is subject to a restraining order issued pursuant to Article 17, Chapter 3 of Title 16, to enter or remain upon the grounds or structure of a domestic violence shelter in which the person's household member resides or the domestic violence shelter's administrative offices.
(C) The domestic violence shelter must post signs at conspicuous places on the grounds of the domestic violence shelter and the domestic violence shelter's administrative offices which, at a minimum, read substantially as follows:
(D) This section does not apply if the person has legitimate business or any authorization, license, or invitation to enter or remain upon the grounds or structure of the domestic violence shelter or the domestic violence shelter's administrative offices.
(E) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned for not more than three years, or both. If the person is in possession of a dangerous weapon at the time of the violation, the person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both."
SECTION 2. Section 16-3-1770(C) of the 1976 Code is amended to read:
"(C) A restraining order issued pursuant to this article conspicuously must bear the following language:
(1) 'Violation of this order is a criminal offense punishable by thirty days in jail, a fine of five hundred dollars, or both'; and
(2) 'Pursuant to Section 16-25-125 of the South Carolina Code of Laws, it is unlawful for a person who has been charged with or convicted of criminal domestic violence or criminal domestic violence of a high and aggravated nature, who is subject to an order of protection, or who is subject to a restraining order, to enter or remain upon the grounds or structure of a domestic violence shelter in which the person's household member resides or the domestic violence shelter's administrative offices. A person who violates this provision is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned for not more than three years, or both. If the person is in possession of a dangerous weapon at the time of the violation, the person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both.' "
SECTION 3. Section 16-25-70(A) of the 1976 Code is 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 pursuant to the provisions of Section 16-25-20(A) or (E), or 16-25-65, or 16-25-125 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 probable cause related to a violation pursuant to the provisions of this chapter by telephone or radio communication with the appropriate 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. If an arrest warrant is sought, the law enforcement agency must present the results of the investigation and any other relevant evidence to a magistrate who may issue an arrest warrant if probable cause is established."
SECTION 4. Section 16-25-120(D) of the 1976 Code is amended to read:
"(D) (1) At the bond hearing pursuant to the provisions of this section or another provision of law, the court shall inform in writing the person charged with a violation of Article 1, Chapter 25, Title 16 of his right to obtain counsel and, if indigent, his right to court-appointed counsel along with instructions on how to obtain court-appointed counsel.
(2) If the court decides to release the person pending his trial, the court shall provide the person with a written notice that must conspicuously bear the following language:
'Pursuant to Section 16-25-125 of the South Carolina Code of Laws, it is unlawful for a person who has been charged with or convicted of criminal domestic violence or criminal domestic violence of a high and aggravated nature, who is subject to an order of protection, or who is subject to a restraining order, to enter or remain upon the grounds or structure of a domestic violence shelter in which the person's household member resides or the domestic violence shelter's administrative offices. A person who violates this provision is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned for not more than three years, or both. If the person is in possession of a dangerous weapon at the time of the violation, the person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both.'
(3) The court shall provide the person with an opportunity to sign the notice evidencing the person's acknowledgment of having received and read the notice."
SECTION 5. Section 20-4-60 of the 1976 Code is amended to read:
"Section 20-4-60. (aA) Any order of protection granted under this chapter shall be to protect the petitioner or the abused person or persons on whose behalf the petition was filed and may include:
(1) Temporarily temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed.;
(2) Temporarily temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner's place of residence, employment, education, or other location as the court may order.
(bB) Every order of protection issued pursuant to this chapter shall conspicuously bear the following language:
(1) 'Violation of this order is a criminal offense punishable by thirty days in jail or a fine of two hundred dollars or may constitute contempt of court punishable by up to one year in jail and/or a fine not to exceed fifteen hundred dollars'; and
(2) 'Pursuant to Section 16-25-125 of the South Carolina Code of Laws, it is unlawful for a person who has been charged with or convicted of criminal domestic violence or criminal domestic violence of a high and aggravated nature, who is subject to an order of protection, or who is subject to a restraining order, to enter or remain upon the grounds or structure of a domestic violence shelter in which the person's household member resides or the domestic violence shelter's administrative offices. A person who violates this provision is guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned for not more than three years, or both. If the person is in possession of a dangerous weapon at the time of the violation, the person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both.'
(cC) When the court has, after a hearing for any order of protection, issued an order of protection, it may, in addition:
(1) Award award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody.;
(2) Direct direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child.;
(3) When when the respondent has a legal duty to support the petitioner or minor children living in the household and the household's residence is jointly leased or owned by the parties or the respondent is the sole owner or lessee, grant temporary possession to the petitioner of the residence to the exclusion of the respondent.;
(4) Prohibit prohibit the transferring, destruction, encumbering, or otherwise disposing of real or personal property mutually owned or leased by the parties or in which one party claims an equitable interest, except when in the ordinary course of business.;
(5) Provide provide for temporary possession of the personal property of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent's eviction has not been ordered.;
(6) Award award costs and attorneys' attorney's fees to either party.;
(7) Award award any other relief authorized by Section 20-7-420; provided, however, the court must have due regard for any prior family court orders issued in an action between the parties.
(dD) No protective order issued pursuant to this chapter may, in any manner, affect the title to real property.
(eE) No mutual order of protection may be granted unless the court sets forth findings of fact necessitating the mutual order or unless both parties consent to a mutual order."
SECTION 6. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 7. This act takes effect upon approval by the Governor.
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