Our Charleston criminal defense lawyers deal with criminal domestic violence cases in family court and criminal court. In other words, we’ve defended persons accused of criminal domestic violence and have helped victims of CDV. In 2015, our law was changed, and now most prosecutors and criminal defense attorneys refer to the cases simply as Domestic Violence (DV) cases instead of CDV. One of the primary changes to the law is that there are now more “levels” of DV whereas the old CDV cases simply had either misdemeanor CDV or CDV of a High and Aggravated Nature. In this article, we examine the laws covering DV, the rights of victims, and the rights of the accused.
What Are “Household Members” Under South Carolina’s Domestic Violence Laws?
For a charge to be DV instead of Assault and Battery, it must be committed against a “household member.” This term is confusing because the statute defines “household member” more broadly than what it sounds like. A household member is:
- A spouse;
- A former spouse;
- Someone you have a child with; or
- Someone you live with or used to live with.
What is Domestic Violence in the 3rd Degree in South Carolina?
This is the lowest of the degrees of DV. It is illegal to cause physical harm or injury to another “household member” as defined under the law, or to offer or attempt to cause physical harm or injury to a household member with apparent present ability to reasonably create imminent fear a misdemeanor and will receive of fine of between $1,000 and $2,000, jailed up to 90 days or both. This offense is prosecuted in Magistrate or Municipal Court (also called Summary Court).
What is Domestic Violence in the 2nd Degree in South Carolina?
It is similar to 3rd Degree in that the defendant either caused harm or injury to a household member or threatened it, but a 2nd Degree factor must ALSO be proven. These factors are:
- Moderate bodily injury results or the act was accomplished by means likely to result in moderate bodily injury. “Moderate bodily injury” includes prolonged loss of consciousness, temporary or moderate disfigurement, temporary loss of the function of a bodily member or organ that needs medical attention using regional or general anesthesia, or fracture or dislocation. One-time treatment or later presence of scratches, cuts, bruises, burns, or other minor injuries that do not ordinarily require extensive medical care generally should NOT enhance a charge from 3rd Degree to 2nd Degree;
- Violation of a protection order;
- Prior conviction for CDV or DV in the last 10 years;
- The act is done in the presence of a minor or can be seen or heard by a minor;
- The offender knew or should have known that the alleged victim is pregnant;
- The offense is committed during a robbery, burglary, kidnapping, or theft;
- The alleged victim’s breathing or air flow is affected; or
- The offender used force to block the alleged victim’s access to a phone or electronic device to stop them from calling the police or medical care.
Only one of these factors has to be proven for Domestic Violence to be considered in the 2nd Degree. If convicted, the defendant is guilty of a misdemeanor and will receive a fine between $2,500 and $5,000, or jail up to 3 years, or both.
What is Domestic Violence in the 1st Degree in South Carolina?
Similar to 2nd Degree, for DV 1st Degree, a factor has to be proven in addition to the violence or threat. These factors include:
- Great bodily injury occurs. “Great bodily injury” is injury that 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;
- Violation of a Protection Order AND any other CDV 2nd factor;
- Two or more conviction of CDV or DV in the past 10 years;
- Use of a firearm in any manner; or
- While committing what would have been DV 2nd Degree, one of the following ALSO happens: presence of a minor; alleged victim is pregnant; occurrence during the commission of robbery, burglary, kidnapping, or theft; impeding the alleged victim’s breathing or air flow; or block of access to phone or electronic device to stop the victim from calling the police or medical care.
If convicted, the person is guilty of a felony and can be imprisoned up to ten (10) years.
What is Domestic Violence of a High and Aggravated Nature (DVHAN) in South Carolina?
Like 2nd Degree and 1st Degree, Domestic Violence of a High and Aggravated Nature (DVHAN) requires an additional factor. These factors are:
- The offense is committed under circumstances manifesting extreme indifference to the value of human life and great bodily injury to the victim results;
- The offense is committed, 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
- The accused violates a protection order and, in the process of violating the order, commits domestic violence in the first degree.
“Circumstances manifesting extreme indifference to the value of human life” include, but are not limited to, the following:
- Using a deadly weapon;
- Impeding the normal breathing or circulation of the blood by applying pressure to the throat or neck or by obstructing the nose or mouth causing stupor or loss of consciousness for any period of time;
- Committing the offense in the presence of a minor;
- Committing the offense against a pregnant person;
- Committing the offense during the commission of a robbery, burglary, kidnapping, or theft; or
- Blocking access to a phone or electronic device to stop them from calling the police or medical care.
What Are Lesser Included Offenses?
All of these charges are “lesser included offenses” of each other, which means if you are tried on one, the jury could find you guilty of that one or a lesser one. For example, if you are tried for Domestic Violence in the 1st Degree, the jury can find you guilty of 1st Degree, 2nd Degree, or 3rd Degree. Also, Assault and Battery is a lesser included offense of DV. An example of this is where you are tried for DV 2nd Degree, but the jury doesn’t believe the victim was your “household member,” then they could convict you of Assault and Battery in the 2nd Degree instead.
Can I Carry a Firearm if I’m Convicted of Domestic Violence in South Carolina?
If a person is convicted of any of South Carolina’s DV charges, even the lowest one of 3rd Degree, the person forever loses his or her right to possess a firearm. This is under all cases by federal law and many cases by state law. You might be able to get these rights back through expungement or pardon, but it can be difficult or impossible to do depending on your circumstances. We discuss expungements in more detail below.
Can the Court Require Batterers’ Treatment and Counseling?
In many instances, the court can cause you to engage in batterer’s treatment programs or drug and alcohol counseling if you are convicted.
How Do They Determine Who is the “Primary Aggressor?”
Often, the law enforcement officer receives conflicting stories about a domestic violence incident. In this instance, the officer is supposed to evaluate each complaint separately to determine who was the primary aggressor. If the person determines one was the primary aggressor, the officer is not supposed to arrest the other. The officer can consider prior complaints of domestic, the nature of any injuries, the likelihood of future injury, whether someone acted in self-defense, and household member accounts regarding the history of domestic violence.
What Bond Conditions and Restrictions Can I Have While the Charge is Pending?
Often, the bond court judge will make a condition of bond be that the accused have “no contact” with the alleged victim or victim’s family members. The order sometimes adds detail such as: “no contact verbally, in person, by telephone, by other electronic means, or through third parties.” The judge may order you not to carry a firearm. Someone accused of Domestic Violence needs to review the bond order carefully to see if any of these restrictions apply. The accused’s lawyer should also review this order to confirm what bond conditions might be present.
Also, a person accused of Domestic Violence cannot go to a Domestic Violence Shelter. A trespass violation under this section could add a new criminal charge that would be a very steep misdemeanor that carries a fine up to $3,000, imprisonment of up to 3 years, or both. If the person has a dangerous weapon at the time of a trespass, it is a felony that carries up to a $5,000 fine, imprisonment up to 5 years, or both.
What Are Domestic Violence Victim’s Rights in South Carolina?
A victim of DV has many rights. Some of these rights are set forth in the South Carolina Constitution, and these rights include the right to be treated with fairness and free from intimidation; to be reasonably informed when the defendant is arrested, released from custody, or has escaped; to be informed of any criminal proceedings which may dispose of the charges; to make written or oral statements at any bond hearings; to be heard regarding any plea bargains or sentencing decisions; to speak to the prosecutor; to have access to documents relating to the crime; and to receive compensation for any medical expenses incurred.
A victim of DV may also be able to petition the family court for a type of restraining order, known as an Order of Protection. This restraining order may last up to a year and may also provide, in some instances, for forms of financial support and may set forth custody and visitation provisions relating to any children. The sooner a victim acts on this type of petition, the more likely it is to be granted. We discuss this petition in more detail here [https://www.charlestonlaw.net/restraining-order-south-carolina/]
As discussed above, the bond judge often will require, as a condition of the bond, that the defendant have “no contact” with the victim while the charges are pending. However, this order is more difficult to enforce than a family court Order of Protection.
What Are the Rights of Someone Accused of Domestic Violence in South Carolina?
A person charged with DV has all of the rights afforded to defendants in other types of criminal cases, including the right to a trial by jury, the right to cross-examine any witnesses at trial, the right to call his or her own witnesses, and the right to testify or not testify. The defendant also has the ability to examine any written or recorded statements taken by the alleged victim or anyone else prior to any trial. Also, the defendant has a right to legal counsel and due to the serious nature of a DV or DVHAN charge, any defendant should exercise this right before going into court alone.
The burden is on the prosecution to prove the defendant guilty beyond a reasonable doubt. At trial, guilt will be left in the hands of the judge or jury. In many cases, there are no witnesses to the incident except for the defendant and the alleged victim. These cases are referred to by many as “he said-she said” cases or “swearing contests,” and the judge or the jury will have to decide who is telling the truth. Photographs of any injuries (even minor bruises) are often submitted by the prosecution to try to have the judge or jury believe the alleged victim.
The defendant also has the right to assert defenses, and “self-defense” is one that is often raised. However, for self-defense to apply, the defendant may have only used enough force that is reasonable under the circumstances.
Can a Victim Drop a Domestic Violence Charge in South Carolina?
Sometimes, the victim decides after the attacker is arrested that he or she wants to drop the charges. This can be for many reasons. In some cases (usually involving female victims), the victim is so emotionally or financially dependent on the defendant that she does not want him going to jail. In other cases, the victim is so frightened of the defendant that she fears retaliation by the defendant if she continues to press the DV charge. These reasons are of great concern to law enforcement and prosecutors.
Prosecutors and law enforcement deal with so many DV cases. It is a daunting task to determine which cases may actually deserve to be dropped and which ones involve a defendant who should be prosecuted. Law enforcement and the prosecutor’s office prosecute DV charges, not the victim. So even if the victim wishes to drop the charges, it is ultimately the prosecutor’s decision. A victim may request that charges be dropped, but the prosecutor will likely want to discuss it with the victim first before making the determination. Any belief that the victim may simply not show up at trial is mistaken because the prosecutor may simply subpoena the victim to trial, and a person who does not comply with a lawful subpoena is subject to the court’s contempt power. While it’s much harder to do, in some instances, a prosecutor can even subpoena a victim from out of state.
What is the “No Drop” Policy in South Carolina?
In 2001, the South Carolina Attorney General implemented a “no drop” policy and instructed all law enforcement agencies in South Carolina to prosecute every CDV. The proposed benefit of this policy was to ensure that the true victims of CDV were not left abandoned by law enforcement or prosecutors. However, opponents of this policy were concerned that it would also end up in convictions of innocent people because it eliminated good judgment and proper discretion by the police and prosecutors.
Today, the policy is not strictly adhered to, and prosecutors do dismiss cases if the facts of the case warrant it. However, they do exercise judgment and discretion and do not dismiss cases lightly.
Can a Domestic Violence Charge be Expunged from a Criminal Record in South Carolina?
A DV 3rd Degree charge is eligible for expungement in limited circumstances. Generally, if the DV conviction is a first criminal conviction for the defendant, and if he or she does not receive any other convictions for five years thereafter, the charge is eligible for expungement. The higher DV charges are rarely expunged, but they may qualify if the defendant was less than 25 years old at the time of the conviction.
If a DV is expunged, the defendant’s gun rights are restored, although he or she may have to go through an appeals process with the FBI to accomplish this.
Final Thoughts on Domestic Violence in South Carolina
Domestic Violence creates difficult situations. They often involve people who live together and are on a deed or lease together. Sometimes they have children in common. Unlike other assault type cases, where the defendant and victim can go their separate ways, DV’s are not that easy.
Due to the serious consequences, defendants should contact an attorney to determine their rights and determine what their options are. Likewise, victims may need assistance in obtaining family court orders of protection and determining their rights, especially in cases that may end up in divorce or having child custody issues.