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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
February 25, 2015
S. 3
Introduced by Senators L. Martin, Shealy, Malloy, Courson, Fair, Turner, Lourie and Hembree
S. Printed 2/25/15--S.
Read the first time January 13, 2015.
TO AMEND SECTION 16-25-10 OF THE 1976 CODE, TO PROVIDE NECESSARY DEFINITIONS; TO AMEND SECTION 16-25-20 OF THE 1976 CODE, RELATING TO CRIMINAL DOMESTIC VIOLENCE OFFENSES AND PENALTIES, SO AS TO RESTRUCTURE THE CRIMINAL DOMESTIC VIOLENCE OFFENSES INTO DEGREES AND PROVIDE PENALTIES; TO AMEND SECTION 16-25-30, RELATING TO THE ILLEGAL POSSESSION OF A FIREARM BY A PERSON CONVICTED OF A DOMESTIC VIOLENCE OFFENSE, TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON CONVICTED OF A CRIMINAL DOMESTIC VIOLENCE OFFENSE OR A PERSON SUBJECT TO AN ORDER OF PROTECTION FOR DOMESTIC OR FAMILY VIOLENCE TO SHIP, TRANSPORT, OR RECEIVE A FIREARM OR AMMUNITION, AND TO PROVIDE NOTICE TO A PERSON TO WHOM THE STATUTE APPLIES; TO AMEND SECTION 16-25-65, RELATING TO CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE, TO PROVIDE THAT THE COURT MUST ORDER PARTICIPATION IN A DOMESTIC VIOLENCE INTERVENTION PROGRAM AND ALLOW A RESTRICTION ON FIREARMS AND AMMUNITION AS A CONDITION OF BOND; AND TO AMEND CHAPTER 3, TITLE 16, RELATING TO OFFENSES AGAINST THE PERSON, BY ADDING ARTICLE 18, TO PROVIDE NECESSARY DEFINITIONS AND TO ESTABLISH A PROCEDURE FOR THE ISSUANCE OF PERMANENT AND EMERGENCY CIVIL NO-CONTACT ORDERS UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE FOR THE DURATION OF CIVIL NO-CONTACT ORDERS, AND TO PROVIDE A PENALTY FOR THE VIOLATION OF CIVIL NO-CONTACT ORDERS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-25-10 of the 1976 Code, as last amended by Act 166 of 2005, is further amended to read:
"Section 16-25-10. As used in this article:
(1) 'Household member' means:
(1)(a) a spouse;
(2)(b) a former spouse;
(3)(c) persons who have a child in common; or
(4)(d) a male and female who are cohabiting or formerly have cohabited.
(2) 'Great bodily injury' means bodily injury which causes a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
(3) 'Moderate bodily injury' means physical injury that involves loss of consciousness, or that requires medical treatment but does not cause a substantial risk of death or which does not cause serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
(4) 'Deadly weapon' means an article, instrument, or substance which is likely to produce or used to produce death or great bodily harm, including, but not limited to, a pistol, rifle, shotgun, knife, stiletto, sword, dagger, metal knuckles, or fists.
(5) 'Protection order' means an order of protection, restraining order, condition of bond, or similar order issued in this State, another state, tribe, territory, or foreign jurisdiction for the purpose of protecting a household member.
(6) 'Prior conviction of domestic violence' means conviction of a crime in this State, another state, tribe, or territory containing among the crime's elements those elements enumerated in Section 16-25-20(A) or 16-25-65, that is committed against a household member as defined in item (1)."
SECTION 2. Section 16-25-20 of the 1976 Code is amended to read:
"Section 16-25-20. (A) It is unlawful to:
(1) cause physical harm or injury to a person's own household member; or
(2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril; or
(3) violate the provisions of Section 16-3-1700(A) or 16-3-1700(B) against a household member under circumstances reasonably creating fear of physical harm or injury.
(B) Except as otherwise provided in this section, a A person who violates the provisions of subsection (A) is guilty of commits the offense of criminal domestic violence in the first degree, and upon conviction, must be punished as follows if the person violates the provisions of subsection (A) and:
(1) for a first offense, the person is guilty of a misdemeanor and must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than thirty days. The court may suspend the imposition or execution of all or part of the fine conditioned upon the offender completing, to the satisfaction of the court, and, in accordance with the provisions of Section 16-25-20(H), a program designed to treat batterers. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense pursuant to the provisions of this subsection must be tried in summary court great bodily injury to the person's own household member results or the act is accomplished by means likely to result in great bodily injury to the person's own household member;
(2) for a second offense, the person is guilty of a misdemeanor and must be fined not less than two thousand five hundred dollars nor more than five thousand dollars and imprisoned not less than a mandatory minimum of thirty days nor more than one year. The court may suspend the imposition or execution of all or part of the sentence, except the thirty-day mandatory minimum sentence, conditioned upon the offender completing, to the satisfaction of the court, and in accordance with the provisions of Section 16-25-20(H), a program designed to treat batterers. If a person is sentenced to a mandatory minimum of thirty days pursuant to the provisions of this subsection, the judge may provide that the sentence be served two days during the week or on weekends until the sentence is completed and is eligible for early release based on credits he is able to earn during the service of his sentence, including, but not limited to, good-time credits the person violates a protection order and in the process of violating the order commits domestic violence in the second degree;
(3) for a third or subsequent offense, the person is guilty of a felony and must be imprisoned not less than a mandatory minimum of one year but not more than five years the person has two or more prior convictions of domestic violence within ten years of the current offense;
(4) the person has one prior conviction of domestic violence within five years of the current offense; or
(5) in the process of committing domestic violence in the second degree one of the following also results:
(a) committing the offense in the presence of, or while being perceived by a minor;
(b) committing the offense against a person known, or who reasonably should have been known, by the offender to be pregnant;
(c) committing the offense during the commission of a robbery, burglary, kidnapping, or theft; or
(d) using physical force or the threatened use of force against another to block that person's access to a cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:
(i) the report of a criminal offense, bodily injury, or property damage to a law enforcement agency; or
(ii) a request for an ambulance or emergency medical assistance to a law enforcement agency or emergency medical provider.
A person who violates this subsection is guilty of a felony, and, upon conviction, must be imprisoned for not more than ten years. A person who violates this subsection and has three or more prior convictions of domestic violence within ten years of the current offense is guilty of a felony, and, upon conviction, must be imprisoned for not less than a mandatory minimum of one year nor more than ten years. Domestic violence in the first degree is a lesser included offense of domestic violence of a high and aggravated nature, as defined in Section 16-25-65.
(C) For the purposes of subsections (A) and (B), a conviction within the previous ten years for a violation of subsection (A), Section 16-25-65, or a criminal domestic violence offense in another state which includes similar elements to the provisions of subsection (A) or Section 16-25-65, constitutes a prior offense. A conviction for a violation of a criminal domestic violence offense in another state does not constitute a prior offense if the offense is committed against a person other than a 'household member' as defined in Section 16-25-10.
(D) A person 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 and fined not more than five hundred dollars commits the offense of domestic violence in the second degree, if the person violates subsection (A) and:
(1) moderate bodily injury to the person's own household member results or the act is accomplished by means likely to result in moderate bodily injury to the person's own household member;
(2) the person violates a protection order and in the process of violating the order commits domestic violence in the third degree;
(3) the person has one prior conviction of domestic violence no earlier than five years and no later than ten years from the current offense; or
(4) in the process of committing domestic violence in the third degree one of the following also results:
(a) committing the offense in the presence of, or while being perceived by, a minor;
(b) committing the offense against a person known, or who reasonably should have been known, by the offender to be pregnant;
(c) committing the offense during the commission of a robbery, burglary, kidnapping, or theft; or
(d) using physical force or the threatened use of force against another to block that person's access to a cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:
(i) the report of a criminal offense, bodily injury, or property damage to a law enforcement agency; or
(ii) a request for an ambulance or emergency medical assistance to a law enforcement agency or emergency medical provider.
A person who violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not less than two thousand five hundred dollars nor more than five thousand dollars, or imprisoned for not more than three years, or both. Domestic violence in the second degree is a lesser-included offense of domestic violence in the first degree, as defined in subsection (B), and domestic violence of a high and aggravated nature, as defined in Section 16-25-65.
(E)(D) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a A person charged with a violation provided in this chapter must appear before a judge for disposition of the case commits the offense of domestic violence in the third degree, if the person violates subsection (A). A person who violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned for not more than ninety days, or both. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense pursuant to this subsection must be tried in summary court. Domestic violence in the third degree is a lesser-included offense of domestic violence in the second degree, as defined in subsection (C), domestic violence in the first degree, as defined in subsection (B), and domestic violence of a high and aggravated nature, as defined in Section 16-25-65. A person who violates this subsection is eligible for pretrial intervention pursuant to Chapter 22, Title 17.
(F)(E) When a person is convicted of a violation of Section 16-25-20(B), 16-25-20(C) or 16-25-65 or sentenced pursuant to subsection (C), the circuit court may suspend execution of all or part of the sentence, except for the mandatory minimum sentence, and place the offender on probation; or if a person is convicted of a violation of Section 16-25-20 (D), the court may suspend execution of all or part of the sentence, conditioned upon:
(1) the offender completing offender's mandatory completion, to the satisfaction of the court, a of a domestic violence intervention program designed to treat batterers in accordance with the provisions of subsection (G);
(2) fulfillment of all the obligations arising under court order pursuant to this section and Section 16-25-65; and
(3) other reasonable terms and conditions of probation as the court may determine necessary to ensure the protection of the victim; and
(4) the offender making restitution as the court deems appropriate.
(G)(F) 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 shall 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.
(H)(G) An offender who participates in a batterer treatment domestic violence intervention program pursuant to this section, must shall participate in a program offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The Department of Social Services shall not approve a program that does not require at least one meeting per week for at least twenty-six weeks. The offender must shall pay a reasonable fee for participation in the treatment program but no person may be denied treatment participation due to inability to pay. If the offender suffers from a substance abuse problem or mental health concern, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment coordinated through the Department of Alcohol and Other Drug Abuse Services with the local alcohol and drug treatment authorities pursuant to Section 61-12-20 or the Department of Mental Health or the Veteran's Hospital, respectively. The offender must shall pay a reasonable fee for participation in the substance abuse treatment or mental health program, if required, but no person may be denied treatment participation due to inability to pay.
(H) A person who violates an order of protection issued in this State pursuant to Chapter 4, Title 20, the 'Protection from Domestic Abuse Act', or a valid order of protection related to domestic or family violence issued by a court of another state, tribe, or territory in compliance with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, is guilty of a misdemeanor, and, upon conviction, must be fined not more than five hundred dollars and imprisoned for not more than thirty days.
(I) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a person charged with a violation of this chapter must appear before a judge for disposition of the case or be tried in the person's absence."
SECTION 3. Section 16-25-30 of the 1976 Code is amended to read:
"Section 16-25-30. (A) It is unlawful for a person to ship, transport, receive, or possess a firearm or ammunition, if the person:
(1) has been convicted of a violation of Section 16-25-20(B), 16-25-20(C), or 16-25-65;
(2) has been convicted of a violation of Section 16-25-20(D) and the judge at the time of sentencing orders that the person is prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition;
(3) has been convicted of domestic violence in another state, tribe, or territory containing among its elements those elements enumerated in Section 16-25-20(A) or 16-25-65;
(4) is subject to a valid order of protection pursuant to Chapter 4, Title 20, and the judge orders that the person is prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition; or
(5) is subject to a valid order of protection related to domestic or family violence issued by a court of another state, tribe, or territory in compliance with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
(B) A person who violates this section is guilty of a felony, and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned for not more than five years.
(C) A person must not be considered to have been convicted of domestic violence for purposes of this section unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and in the case of a prosecution for an offense described in this section for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. A person must not be considered to have been convicted of domestic violence for purposes of this section if the conviction has been expunged, set aside, or is an offense for which the person has been pardoned.
(D) At the time a person is convicted of violating the provisions of Section 16-25-20 or 16-25-65, or upon the issuance of an order of protection pursuant to Chapter 4, Title 20, the court must deliver to the person a written form that conspicuously bears the following language: 'Pursuant to 18 U.S.C. Section 922, it is unlawful for a person convicted of a violation of Section 16-25-20 or 16-25-65, or a person who is subject to a valid order of protection pursuant to Chapter 4, Title 20, to ship, transport, possess, or receive a firearm or ammunition.'
(E) The provisions of this section prohibiting the possession of firearms and ammunition by persons who have been convicted of domestic violence shall apply to a person who has been convicted of domestic violence for a period of:
(1) ten years from the date of completion of sentence, probation, parole, or suspension of sentence, if the person has been convicted of a violation of Section 16-25-20(B), Section 16-25-20(C), or Section 16-25-65; or
(2) five years from the date of completion of sentence, probation, parole, or suspension of sentence, if the person has been convicted of a violation of Section 16-25-20(D) and the judge at the time of sentencing orders that the person is prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition.
(F) For purposes of this section, 'firearm' means a pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive."
SECTION 4. Section 16-25-65 of the 1976 Code is amended to read:
"Section 16-25-65. (A) A person who violates Section 16-25-20 (A) is guilty of the offense of criminal domestic violence of a high and aggravated nature when one of the following occurs. The person commits:
(1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; commits the offense under circumstances manifesting extreme indifference to the value of human life and great bodily injury to the victim results; or
(2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death. commits the offense, with or without an accompanying battery and under circumstances manifesting extreme indifference to the value of human life, and would reasonably cause a person to fear imminent great bodily injury or death; or
(3) violates a protection order and in the process of violating the order commits domestic violence in the first degree.
(B) A person who violates subsection (A) is guilty of a felony, and, upon conviction, must be imprisoned not less than a mandatory minimum of one year nor more than ten years. The court may suspend the imposition or execution of all or part of the sentence, except the one-year mandatory 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 may 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 coordinated through the Department of Alcohol and Other Drug Abuse Services with the local alcohol and drug treatment authorities pursuant to Section 61-12-20. The offender must pay a reasonable fee for participation in the substance abuse treatment program, but no person may be denied treatment due to inability to pay for not more than twenty years.
(C) The provisions of 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.
(D) Circumstances manifesting extreme indifference to the value of human life include, but are not limited to, the following:
(1) using a deadly weapon;
(2) knowingly impeding the normal breathing or circulation of the blood of a household member by applying pressure to the throat or neck or by obstructing the nose or mouth of a household member;
(3) committing the offense in the presence of a minor;
(4) committing the offense against a person the offender knew or should have known to be pregnant;
(5) committing the offense during the commission of a robbery, burglary, kidnapping, or theft; and
(6) using physical force or the threatened use of force against a person to block that person's access to a cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:
(a) the report of a criminal offense, bodily injury, or property damage to a law enforcement agency; or
(b) a request for an ambulance or emergency medical assistance to a law enforcement agency or emergency medical provider."
SECTION 5. Section 16-25-70(B) of the 1976 Code is amended to read:
"(B) A law enforcement officer must may 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(A) or (D), or 16-25-65 even if the act did not take place in the presence of the officer. A law enforcement officer is may not required to make an arrest if he determines probable cause does not exist after consideration of the factors set forth in subsection (D) and observance that no physical manifestation of injury is present. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency."
SECTION 6. Chapter 3, Title 16 of the 1976 Code is amended by adding:
Section 16-3-1900. For purposes of this article:
(1) 'Complainant' means a victim of a criminal offense that occurred in this State, a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State, or a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(2) 'Conviction' means a conviction, adjudication of delinquency, guilty plea, nolo contendere plea, or forfeiture of bail.
(3) 'Criminal offense' means an offense against the person of an individual when physical or psychological harm occurs, including both common law and statutory offenses contained in Sections 16-3-1700, 16-3-1710, 16-3-1720, 16-3-1730, 16-25-20, 16-25-30, 16-25-65 and 23-3-430; criminal sexual conduct offenses plead down to assault and battery of a high and aggravated nature; domestic violence offenses plead down to assault and battery or assault and battery of a high and aggravated nature; and the common law offense of attempt, punishable pursuant to Section 16-1-80.
(4) 'Family' means a spouse, child, parent, sibling, or a person who regularly resides in the same household.
(5) 'Respondent' means a person who was convicted of a criminal offense for which the victim was the subject of the crime or the witness who assisted the prosecuting entity in prosecuting the criminal offense.
(6) 'Victim' means:
(a) a person who suffers direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a criminal offense; or
(b) the spouse, parent, child, or lawful representative of a victim who is deceased, a minor, incompetent, or physically or psychologically incapacitated.
'Victim' does not include a person who is the subject of an investigation for, charged with, or has been convicted of the offense in question; a person, including a spouse, parent, child, or lawful representative, who is acting on behalf of a suspect, juvenile offender, or defendant, unless such actions are required by law; or a person who was imprisoned or engaged in an illegal act at the time of the offense.
(7) 'Witness' means a person who has been or is expected to be summoned to testify for the prosecution, or who by reason of having relevant information is subject to being called or likely to be called as a witness for the prosecution, whether or not any action or proceeding has been commenced.
Section 16-3-1910. (A) The circuit court and family court have jurisdiction over an action seeking a permanent civil no-contact order.
(B) To seek a permanent civil no-contact order, a person must:
(1) request the order in general sessions court or family court, as applicable, at the time the respondent is convicted for the criminal offense committed against the complainant; or
(2) file a summons and complaint in common pleas court in the county in which:
(a) the respondent resides when the action commences;
(b) the criminal offense occurred; or
(c) the complainant resides, if the respondent is a nonresident of the State or cannot be found.
(C) The following persons may seek a permanent civil no-contact order:
(1) a victim of a criminal offense that occurred in this State;
(2) a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State; or
(3) a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(D) A complaint must:
(1) state that the respondent was a person convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity;
(2) state when and where the conviction took place, and the name of the prosecuting entity and court;
(3) be verified; and
(4) inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.
(E) A complainant shall provide his address to the court and to any appropriate law enforcement agencies. The complainant's address must be kept under seal, omitted from all documents filed with the court, and is not subject to Freedom of Information Act requests pursuant to Section 30-4-10, et seq. The complainant may designate an alternative address to receive notice of motions or pleadings from the respondent.
(F) The circuit court must provide forms to facilitate the preparation and filing of a summons and complaint for a permanent civil no-contact order by a complainant not represented by counsel. The court must not charge a fee for filing a summons and complaint for a permanent civil no-contact order.
(G) A complainant shall serve his summons and complaint for a permanent civil no-contact order along with a notice of the date, time, and location of the hearing on the complaint pursuant to Rule 4 of the South Carolina Rules of Civil Procedure. The summons must require the respondent to answer or otherwise plead within thirty days of the date of service.
(H) The court may enter a permanent civil no-contact order by default if the respondent was served in accordance with the provisions of this section and fails to answer as directed, or fails to appear on a subsequent appearance or hearing date agreed to by the parties or set by the court.
(I) The hearing on a permanent civil no-contact order may be done electronically via closed circuit television or through other electronic means when possible. If the respondent is confined in a Department of Corrections facility, the complainant may come to the Department of Probation, Parole and Pardon Services in Richland County to have the hearing held electronically via closed circuit television or through other electronic means.
(J) Upon a finding that the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable, the court may issue a permanent civil no-contact order. In determining whether to issue a permanent civil no-contact order, physical injury to the victim or witness is not required.
(K) The terms of a permanent civil no-contact order must protect the victim or witness and may include enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the victim, witness, or members of the victim's or witness' family;
(2) entering or attempting to enter the victim's or witness' place of residence, employment, education, or other location; and
(3) communicating or attempting to communicate with the victim, witness, or members of the victim's or witness' family in a way that would violate the provisions of this section.
(L) A permanent civil no-contact order must conspicuously bear the following language: 'Violation of this order is a felony criminal offense punishable by up to five years in prison.'
(M)(1) A permanent civil no-contact order remains in effect for the life of the complainant. If a victim or witness is a minor at the time a permanent civil no-contact order is issued on the minor's behalf, the victim or witness, upon reaching the age of eighteen, may file a motion with the circuit court to have the permanent civil no-contact order removed.
(2) The court may modify the terms of a permanent civil no-contact order.
(N) Notwithstanding another provision of law, a permanent civil no-contact order is enforceable throughout this State.
(O) Law enforcement officers shall arrest a respondent who is acting in violation of a permanent civil no-contact order after service and notice of the order is provided. A respondent who is in violation of a permanent civil no-contact order is guilty of a felony, and, upon conviction, must be imprisoned up to five years.
(P) In proceedings for a permanent civil no-contact order or prosecutions for violation of a permanent civil no-contact order, the prior sexual activity and the reputation of the victim is inadmissible except when it would be admissible in a criminal prosecution as provided by law.
(Q) Permanent civil no-contact orders are protection orders for purposes of Section 20-4-320, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as long as all other criteria of Article 3, Chapter 4, Title 20, are met. However, permanent civil no-contact orders are not orders of protection for purposes of Section 16-25-30.
(R) The remedies provided by this section are not exclusive, but are additional to other remedies provided by law.
Section 16-3-1920. (A) The magistrates court has jurisdiction over an action seeking an emergency civil no-contact order.
(B) An action for an emergency civil no-contact order must be filed in the county in which:
(1) the respondent resides when the action commences;
(2) the criminal offense occurred; or
(3) the complainant resides, if the respondent is a nonresident of the State or cannot be found.
(C) A summons and complaint for an emergency civil no-contact order may be filed by:
(1) a victim of a criminal offense that occurred in this State;
(2) a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State; or
(3) a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(D) The complaint must:
(1) state that the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity;
(2) state when and where the conviction took place, and the name of the prosecuting entity and court;
(3) be verified; and
(4) inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.
(E) A complainant shall provide his address to the court and to any appropriate law enforcement agencies. The complainant's address must be kept under seal, omitted from all documents filed with the court, and is not subject to Freedom of Information Act requests pursuant to Section 30-4-10, et seq. The complainant may designate an alternative address to receive notice of motions or pleadings from the respondent.
(F) The court must provide forms to facilitate the preparation and filing of a summons and complaint for an emergency civil no-contact order by a complainant not represented by counsel. The court must not charge a fee for filing a summons and complaint for an emergency civil no-contact order.
(G)(1) Except as provided in subsection (H), the court shall hold a hearing on an emergency civil no-contact order within fifteen days of the filing of a summons and complaint, but not sooner than five days after service has been perfected upon the respondent.
(2) The court shall serve a copy of the summons and complaint upon the respondent at least five days before the hearing in the same manner required for service as provided in the South Carolina Rules of Civil Procedure.
(3) The hearing may be done electronically via closed circuit television or through other electronic means when possible. If the respondent is confined in a Department of Corrections facility, the complainant may come to the Department of Probation, Parole and Pardon Services in Richland County to have the hearing held electronically via closed circuit television or through other electronic means.
(4) The court may issue an emergency civil no-contact order upon a finding that:
(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable; and
(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent civil no-contact order.
In determining whether to issue an emergency civil no-contact order, physical injury to the victim or witness is not required.
(H)(1) Within twenty-four hours after the filing of a summons and complaint seeking an emergency civil no-contact order, the court may hold an emergency hearing and issue an emergency civil no-contact order without giving the respondent notice of the motion for the order if:
(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable;
(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent civil no-contact order;
(c) it clearly appears from specific facts shown by a verified complaint or affidavit that immediate injury, loss, or damage will result to the victim or witness before the respondent can be heard; and
(d) the complainant certifies to the court that one of the following has occurred:
(i) efforts have been made to serve the notice; or
(ii) there is good cause to grant the remedy because the harm that the remedy is intended to prevent would likely occur if the respondent were given prior notice of the complainant's efforts to obtain judicial relief.
In determining whether to issue an emergency civil no-contact order, physical injury to the victim or witness is not required.
(2) An emergency civil no-contact order granted without notice must be endorsed with the date and hour of issuance and entered of record with the magistrates court. The order must be served upon the respondent together with a copy of the summons, complaint, and a Rule to Show Cause why the order should not be extended until the hearing for a permanent civil no-contact order.
(I) The terms of an emergency civil no-contact order must protect the victim or witness and may include temporarily enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the victim, witness, or members of the victim's or witness' family;
(2) entering or attempting to enter the victim's or witness' place of residence, employment, education, or other location; and
(3) communicating or attempting to communicate with the victim, witness, or members of the victim's or witness' family in a way that would violate the provisions of this section.
(J) An emergency civil no-contact order conspicuously must bear the following language: 'Violation of this order is a felony criminal offense punishable by up to five years in prison.'
(K) The court shall serve the respondent with a certified copy of the emergency civil no-contact order and provide a copy to the complainant and to the local law enforcement agencies having jurisdiction over the area where the victim or witness resides. Service must be made without charge to the complainant.
(L)(1) An emergency civil no-contact order remains in effect until a hearing on a permanent civil no-contact order. However, if a complainant does not seek a permanent civil no-contact order pursuant to Section 16-3-1910 within forty-five days of the issuance of an emergency civil no-contact order, the emergency civil no-contact order no longer remains in effect.
(2) The court may modify the terms of an emergency civil no-contact order.
(M) Notwithstanding another provision of law, an emergency civil no-contact order is enforceable throughout this State.
(N) Law enforcement officers shall arrest a respondent who is acting in violation of an emergency civil no-contact order after service and notice of the order is provided. An arrest warrant is not required. A respondent who is in violation of an emergency civil no-contact order is guilty of a felony, and, upon conviction, must be imprisoned up to five years.
(O) In proceedings for an emergency civil no-contact order or prosecutions for violation of an emergency civil no-contact order, the prior sexual activity and the reputation of the victim is inadmissible except when it would be admissible in a criminal prosecution as provided by law.
(P) Emergency civil no-contact orders are protection orders for purposes of Section 20-4-320, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as long as all other criteria of Article 3, Chapter 4, Title 20 are met. However, permanent civil no-contact orders are not orders of protection for purposes of Section 16-25-30.
(Q) The remedies provided by this section are not exclusive but are additional to other remedies provided by law."
SECTION 7. Section 16-1-60 of the 1976 Code is amended to read:
"Section 16-1-60. For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first, second, and third degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-930); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); domestic violence in the first degree (Section 16-25-20 (B)); criminal domestic violence of a high and aggravated nature (Section 16-25-65); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator's failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses."
SECTION 8. Section 17-25-45 of the 1976 Code is amended to read:
"Section 17-25-45. (A) Notwithstanding any other provision of law, except in cases in which the death penalty is imposed, upon a conviction for a most serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has either:
(1) one or more prior convictions for:
(a) a most serious offense; or
(b) a federal or out-of-state conviction for an offense that would be classified as a most serious offense under this section; or
(2) two or more prior convictions for:
(a) a serious offense; or
(b) a federal or out-of-state conviction for an offense that would be classified as a serious offense under this section.
(B) Notwithstanding any other provision of law, except in cases in which the death penalty is imposed, upon a conviction for a serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for:
(1) a serious offense;
(2) a most serious offense;
(3) a federal or out-of-state offense that would be classified as a serious offense or most serious offense under this section; or
(4) any combination of the offenses listed in items (1), (2), and (3) above.
(C) As used in this section:
(1) 'Most serious offense' means:
16-1-40 Accessory, for any offense enumerated in this item
16-1-80 Attempt, for any offense enumerated in this item
16-3-10 Murder
16-3-29 Attempted Murder
16-3-50 Voluntary manslaughter
16-3-85 (A)(1) Homicide by child abuse
16-3-85 (A)(2) Aiding and abetting homicide by child abuse
16-3-210 Lynching, First degree
16-3-210 (B) Assault and battery by mob, First degree
16-3-620 Assault and battery with intent to kill
16-3-652 Criminal sexual conduct, First degree
16-3-653 Criminal sexual conduct, Second degree
16-3-655 Criminal sexual conduct with minors, except where evidence presented at the criminal proceeding and the court, after the conviction, makes a specific finding on the record that the conviction obtained for this offense resulted from consensual sexual conduct where the victim was younger than the actor, as contained in Section 16 3 655(3)
16-3-656 Assault with intent to commit criminal sexual conduct, First and Second degree
16-3-910 Kidnapping
16-3-920 Conspiracy to commit kidnapping
16-3-930 Trafficking in persons
16-3-1075 Carjacking
16-11-110 (A) Arson, First degree
16-11-311 Burglary, First degree
16-11-330 (A) Armed robbery
16-11-330 (B) Attempted armed robbery
16-11-540 Damaging or destroying building, vehicle, or other property by means of explosive incendiary, death results
24-13-450 Taking of a hostage by an inmate
25-7-30 Giving information respecting national or state defense to foreign contacts during war
25-7-40 Gathering information for an enemy
43-35-85 (F) Abuse or neglect of a vulnerable adult resulting in death
55-1-30(3) Unlawful removing or damaging of airport facility or equipment when death results
56-5-1030 (B)(3) Interference with traffic control devices or railroad signs or signals prohibited when death results from violation
58-17-4090 Obstruction of railroad, death results.
(2) 'Serious offense' means:
(a) any offense which is punishable by a maximum term of imprisonment for thirty years or more which is not referenced in subsection (C)(1);
(b) those felonies enumerated as follows:
16-3-220 Lynching, Second degree
16-3-210 (C) Assault and battery by mob, Second degree
16-3-600 (B) Assault and battery of a high and aggravated nature
16-3-810 Engaging child for sexual performance
16-9-220 Acceptance of bribes by officers
16-9-290 Accepting bribes for purpose of procuring public office
16-11-110 (B) Arson, Second degree
16-11-312 (B) Burglary, Second degree
16-11-380 (B) Theft of a person using an automated teller machine
16-13-210 (1) Embezzlement of public funds
16-13-230 (B)(3) Breach of trust with fraudulent intent
16-13-240 (1) Obtaining signature or property by false pretenses
16-25-20 (B) Domestic Violence in the First Degree
16-25-65 Domestic Violence of a High and Aggravated Nature
38-55-540 (3) Insurance fraud
44-53-370 (e) Trafficking in controlled substances
44-53-375 (C) Trafficking in ice, crank, or crack cocaine
44-53-445 (B)(1)&(2) Distribute, sell, manufacture, or possess with intent to distribute controlled substances within proximity of school
56-5-2945 Causing death by operating vehicle while under influence of drugs or alcohol; and
(c) the offenses enumerated below:
16-1-40 Accessory before the fact for any of the offenses listed in subitems (a) and (b)
16-1-80 Attempt to commit any of the offenses listed in subitems (a) and (b)
43-35-85(E) Abuse or neglect of a vulnerable adult resulting in great bodily injury.
(3) "Conviction" means any conviction, guilty plea, or plea of nolo contendere.
(D) Except as provided in this subsection or subsection (E), no person sentenced pursuant to this section shall be eligible for early release or discharge in any form, whether by parole, work release, release to ameliorate prison overcrowding, or any other early release program, nor shall they be eligible for earned work credits, education credits, good conduct credits, or any similar program for early release. A person is eligible for work release if the person is sentenced for voluntary manslaughter (Section 16-3-50), kidnapping (Section 16-3-910), carjacking (Section 16-3-1075), burglary in the second degree (Section 16-11-312(B)), armed robbery (Section 16-11-330(A)), or attempted armed robbery (Section 16-11-330(B)), the crime did not involve any criminal sexual conduct or an additional violent crime as defined in Section 16-1-60, and the person is within three years of release from imprisonment.
(E) For the purpose of this section only, a person sentenced pursuant to this section may be paroled if:
(1) the Department of Corrections requests the Department of Probation, Parole and Pardon Services to consider the person for parole; and
(2) the Department of Probation, Parole and Pardon Services determines that due to the person's health or age he is no longer a threat to society; and
(a) the person has served at least thirty years of the sentence imposed pursuant to this section and has reached at least sixty-five years of age; or
(b) the person has served at least twenty years of the sentence imposed pursuant to this section and has reached at least seventy years of age; or
(c) the person is afflicted with a terminal illness where life expectancy is one year or less; or
(d) the person can produce evidence comprising the most extraordinary circumstances.
(F) For the purpose of determining a prior or previous conviction under this section and Section 17-25-50, a prior or previous conviction shall mean the defendant has been convicted of a most serious or serious offense, as may be applicable, on a separate occasion, prior to the instant adjudication. There is no requirement that the sentence for the prior or previous conviction must have been served or completed before a sentence of life without parole can be imposed under this section.
(G) The decision to invoke sentencing under this section is in the discretion of the solicitor.
(H) Where the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant's counsel not less than ten days before trial."
SECTION 9. Section 16-3-600 of the 1976 Code is amended to read:
"Section 16-3-600. (A) For purposes of this section:
(1) 'Great bodily injury' means bodily injury which causes a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
(2) 'Moderate bodily injury' means physical injury requiring treatment to an organ system of the body other than the skin, muscles, and connective tissues of the body, except when there is penetration of the skin, muscles, and connective tissues that require surgical repair of a complex nature or when treatment of the injuries requires the use of regional or general anesthesia. that involves loss of consciousness, or that requires medical treatment but does not cause a substantial risk of death or which does not cause serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
(3) 'Private parts' means the genital area or buttocks of a male or female or the breasts of a female.
(B)(1) A person commits the offense of assault and battery of a high and aggravated nature if the person unlawfully injures another person, and:
(a) great bodily injury to another person results; or
(b) the act is accomplished by means likely to produce death or great bodily injury.
(2) A person who violates this subsection is guilty of a felony, and, upon conviction, must be imprisoned for not more than twenty years.
(3) Assault and battery of a high and aggravated nature is a lesser-included offense of attempted murder, as defined in Section 16-3-29.
(C)(1) A person commits the offense of assault and battery in the first degree if the person unlawfully:
(a) injures another person, and the act:
(i) involves nonconsensual touching of the private parts of a person, either under or above clothing, with lewd and lascivious intent; or
(ii) occurred during the commission of a robbery, burglary, kidnapping, or theft; or
(b) offers or attempts to injure another person with the present ability to do so, and the act:
(i) is accomplished by means likely to produce death or great bodily injury; or
(ii) occurred during the commission of a robbery, burglary, kidnapping, or theft.
(2) A person who violates this subsection is guilty of a felony, and, upon conviction, must be imprisoned for not more than ten years.
(3) Assault and battery in the first degree is a lesser-included offense of assault and battery of a high and aggravated nature, as defined in subsection (B)(1), and attempted murder, as defined in Section 16-3-29.
(D)(1) A person commits the offense of assault and battery in the second degree if the person unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so, and:
(a) moderate bodily injury to another person results or moderate bodily injury to another person could have resulted; or
(b) the act involves the nonconsensual touching of the private parts of a person, either under or above clothing.
(2) A person who violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than two thousand five hundred dollars, or imprisoned for not more than three years, or both.
(3) Assault and battery in the second degree is a lesser-included offense of assault and battery in the first degree, as defined in subsection (C)(1), assault and battery of a high and aggravated nature, as defined in subsection (B)(1), and attempted murder, as defined in Section 16-3-29.
(E)(1) A person commits the offense of assault and battery in the third degree if the person unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so.
(2) A person who violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than five hundred dollars, or imprisoned for not more than thirty days, or both.
(3) Assault and battery in the third degree is a lesser-included offense of assault and battery in the second degree, as defined in subsection (D)(1), assault and battery in the first degree, as defined in subsection (C)(1), assault and battery of a high and aggravated nature, as defined in subsection (B)(1), and attempted murder, as defined in Section 16-3-29."
SECTION 10. 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 11. This act takes effect upon approval by the Governor.
This web page was last updated on February 25, 2015 at 5:05 PM