HISTORY OF DOMESTIC VIOLENCE LAWS
Domestic Violence is a real problem in South Carolina. In fact, SC has been leading the nation in victimization rates for more than 10 years.
The issue is not going unnoticed and much is being done to reduce the rates. For someone charged with a Domestic Violence offense, this is not good because prosecutors are inclined to proceed with the offense regardless of the severity or wishes of the victim.
In this chapter you will hear some alarming statistics on DV in South Carolina and what is being done to combat it.
Let’s start with some stats from the 2014 “Rule of Thumb” study. “The Rule of Thumb: A Five Year Overview of Domestic Violence” takes a hard look at the problem in South Carolina.
Domestic violence victims make up…
- 26.1 percent of all homicides,
- 52.7 percent of total simple assault, and
- 42.6 percent of all violent victimization incidents.
In addition, the victimization rate among females is 149.9 percent greater than among males.
South Carolina lawmakers have been working to reform the legal system to help cut down domestic violence rates. In 2015, the state legislature made major changes to theDV laws in the state. The state’s first “criminal domestic violence” law was introduced in 1984. . Much has changed in the nearly 40 years since it was first written.
The new 2015 Domestic Violence Reform Act sought to clearly outline the difference between the degrees of the crime. A detailed definition was included, as well as stronger penalties for violations.
Did You Know…?
You do not have to physically injure someone to be charged with domestic violence in South Carolina.
DEFINITION OF DOMESTIC VIOLENCE
The 2015 Reform Act mentioned above includes a detailed definition of DV. You will hear it all next.
In order to provide the best defense possible, criminal defense attorneys need clear cut rules on what does and does not violate the law. It was a long time coming, but the Reform Act gave it to us.
According to SC Code Section 16-25-20, it is against the law to cause physical harm or injury to a person in one’s own household or offer or attempt to cause physical harm or injury with apparent present ability to actually cause the injury under circumstances reasonably creating fear of imminent peril.
That’s the basic definition in South Carolina and also is considered to be “third degree” domestic violence which we’ll cover in Chapter 3. All of the other degrees build on this definition.
Before we start examining each degree and charge separately, it’s important to understand the meaning of “household member.” Domestic violence is only committed if the violence is directed toward a spouse, a former spouse, persons who have a child together, or couples who currently live together or used to live together. If the abuser and victim don’t fit one of these situations, it may still be a crime, just not domestic violence.
The basic definition gives you an idea of what domestic violence entails, but each “degree” of the charge is a little different. The underlying act stays about the same — one person living with another person tries to or actually does physically hurt that person. Now that you have a basic grasp of the crime, let’s move into the details of the charge.
So, to break down the basic elements, the prosecution must prove:
- Offer or attempt to (or to actually) cause physical harm or injury
- With the present ability to carry out the threat
- Reasonably creating fear of imminent peril
- To a household member
Did You Know…?
Domestic Violence charges can even be filed when the alleged abuser and victim aren’t married, but live together.
DEGREES OF CHARGES
(1ST, 2ND, 3RD & DVHAN)
In addition to giving a straightforward definition of domestic violence, the 2015 Reform Act separated the charge into three “degrees,” or levels. There is also a separate charge for the most serious type of domestic violence charge named, Domestic Violence of a High and Aggravated Nature.
Here is a list of the different types of domestic violence charges in South Carolina:
- Domestic Violence of a High and Aggravated Nature (DVHAN) (Highest level)
- Domestic Violence in the 1st degree
- Domestic Volence in the 2nd degree
- Domestic Violence in the 3rd degree (Lowest level)
1st, 2nd, and 3rd degree Domestic Violence
As discussed above in Chapter 2, it is against the law to offer, attempt, or actually cause physical harm or injury to a person in one’s own household or offer or attempt to cause physical harm or injury with apparent present ability to actually cause the injury under circumstances reasonably creating fear of imminent peril.
If this is true, you then move on to the specifics of the incident to determine which degree it fits under.
Let’s start with 3rd degree, in that it is the least serious of the four charges.
3rd Degree Domestic Violence
Third degree domestic violence charges meet the basic definition of domestic violence without any additional aggravating circumstances as will be discussed below regarding the other charges of 1st and 2nd degree domestic violence. See the statute here under subsection (D).
The state must only prove the basic elements for domestic violence, being:
- Offer or attempt to cause physical harm or injury
- With the present ability to carry out the threat
- Reasonably creating fear of imminent peril
- To a household member
If injury DOES occur, such as a bruise, redness, etc., then realistically the state must only prove
- To a household member
For example, let’s say Tom and Mary live together and Mary sees a text on Tom’s phone from another woman. Mary questions Tom about the text. Tom tries to explain and Mary slaps Tom in the face as she’s arguing with him about the text. Tom calls the police. Mary has just committed domestic violence in the 3rd degree.
2nd Degree Domestic Violence
A charge for Domestic Violence 2nd degree, is necessarily a 3rd degree charge with some other circumstance. See the statute here under subsection (C). There are many ways that a domestic violence incident can result in a 2nd degree charge.
Therefore, a domestic violence incident has occurred, the following could increase the charge to the 2nd degree.
- Moderate bodily injury to the victim or by way of circumstances likely to result in moderate bodily injury.
- An order of protection is in place.
- A prior Domestic violence conviction in the past 10 years
- The offense is committed in the presence of a minor
- The victim is pregnant and the defendant knew or should have known about the pregnancy.
- The offense was committed during a robbery, burglary, kidnapping, or theft. (This will likely never be a factor.)
- The offense interfered with the victim’s ability to breath, like choking.
- The defendant blocked access to a phone or other means to call for help.
The definition statute found in 16-25-10, tells us what “Moderate bodily injury” is:
“Moderate bodily injury” means physical injury that involves prolonged loss of consciousness or that causes temporary or moderate disfigurement or temporary loss of the function of a bodily member or organ or injury that requires medical treatment when the treatment requires the use of regional or general anesthesia or injury that results in a fracture or dislocation. Moderate bodily injury does not include one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.
Advancing our example from above, let’s say Tom and Mary live together and Mary sees a text on Tom’s phone from another woman. Mary questions Tom about the text. Tom tries to explain and Mary persists with arguing with him about the text. Tom has enough of Mary in his face and pushes her away from him and she falls backwards but suffers no injuries. This is witnessed by their 6 year old child. Mary calls the police and the police respond. Tom is appropriately charged with domestic violence in the 2rd degree.
1st Degree Domestic Violence
First degree domestic violence gets a little more serious. You can see the SC statute on the charge here under subsection (B). As with 2nd degree domestic violence, 1st degree requires that the state prove the basic elements of domestic violence with one of the following aggravating circumstances.
- The offense results in actual or potential “great bodily injury.”
- There is an order of protection in place and one of the other aggravating circumstances in 2nd degree domestic violence is present.
- The offender has 2 prior domestic violence convictions in the past 10 years.
- The offense involves the use of a firearm
- The offender commits essentially 2 of the aggravating circumstances in domestic violence 2nd. For example:
The offender commits a 2nd degree domestic violence with one of the other aggravating circumstances and:
- A minor is present
- The victim is pregnant
- The offense was committed during a robbery, burglary, kidnapping, or theft,
- The victim’s ability to breath was restricted
- The offender blocked the victim’s ability to call for help.
The definition section of 16-25-10, tell us,
(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.
Let’s get back to Tom and Mary. Tom and Mary live together and Mary sees a text on Tom’s phone from another woman. Mary questions Tom about the text. Tom tries to explain and Mary persists with arguing with him about the text. Tom has enough of Mary in his face and pushes her away from him and she falls backwards but hits the coffee table in the living room and is knocked unconscious. This is witnessed by their 6 year old child. Mary comes to and calls the police and the police respond. Tom is appropriately charged with domestic violence in the 1st degree.
Domestic Violence of a High and Aggravated Nature
Domestic Violence of a High and Aggravated Nature or DVHAN as it is commonly called, is covered in SC Code Section 16-25-65. It is the most serious type of domestic violence charge in South Carolina. Domestic violence of a high and aggravated nature requires harm or the threat of harm to a household member just like 1st, 2nd and 3rd degree domestic violence charges. In addition to this requirement, one of 3 following scenarios must also be true:
- The accused commits the offense “under circumstances manifesting extreme indifference to the value of human life” AND the victim suffers some type of great bodily injury;
- The accused commits the offense “under circumstances manifesting extreme indifference to the value of human life” with no physical injury occurring, but the victim reasonably feared great bodily injury or death; or
- The accused violates an existing protection order while committing 1st degree domestic violence.
Let’s get back to Tom and Mary. Tom and Mary live together and Mary sees a text on Tom’s phone from another woman. Mary questions Tom about the text. Tom tries to explain and Mary persists with arguing with him about the text. Tom has enough of Mary and walks to the nightstand to get his gun. Mary follows and Tom fires the gun into the floor at her feet. Mary is terrified and runs to the neighbor’s where she calls the police. Tom is appropriately charged with domestic violence of a high and aggravated nature.
Let me take a moment to clarify, that if Tom had actually shot Mary, he would still technically be guilty of DVHAN, but realistically he would be charged with the greater offense of Attempted Murder instead or maybe even both offenses. If she perished, he would be charged with Murder.
Did You Know…?
Domestic Violence of a High & Aggravated Nature is the most serious type of domestic violence charge.
Let’s start this section off by saying that South Carolina does not currently have a mandatory arrest policy for domestic violence incidents. However, the version of the domestic violence statute prior to the 2015 amendments did include a provision that required an officer to make an arrest when there was any manifestation of injury. This language of “must arrest” was changed to “may arrest” in the 2015 amendment.
However, realistically, many law enforcement officers are still operating under the assumption that they are required to arrest someone if there is an alleged domestic violence case with any manifestation of injury.
The article, “Till Death Do Us Part” that appeared in the Post and Courier pointed out one very dangerous consideration — there is an increase in domestic violence deaths after a person is released on bond following a domestic violence charge. It is this reason that prosecutors and law enforcement take domestic violence cases so seriously.
Domestic Violence Arrest Practice
So how does South Carolina currently handle domestic violence arrests? The answer is – it depends. The only thing that must happen under the Domestic Violence Act is the requirement that an official incident report be filed by the responding officer. The officer will also check to see if there is a current order of protection in place. As mentioned however, most law enforcement agencies still follow the “mandatory” arrest policy when there is any manifestation of injury.
A police officer does not have to have a warrant to arrest a person for domestic violence. If the officer has probable cause to believe that someone committed a crime, that person can be arrested even if the officer wasn’t present at the time, and without an arrest warrant. The decision of whether to make an arrest lies with the officer.
Interestingly, the officer may never be required to get a warrant for a 3rd or 2nd degree domestic violence. The motor vehicle code, of all things, allows a traffic ticket to be written for domestic violence in the 2nd and 3rd degree if the offense was “freshly committed”. See 56-7-10(A)(29).
In carrying out a warrantless arrest, the officer can enter the residence of the accused if the officer has probable cause to believe that doing so is reasonably necessary to prevent physical harm or danger to a family member or household member.
During the course of the arrest, the officer may seize, photograph or otherwise document any evidence of the crime. Likewise, if the victim is a household member, such as a spouse, the victim may be able to consent to a further search of the premises.
Determination of the “Primary Aggressor”
Domestic violence incidents are rarely straightforward. They can be messy and difficult to decipher since many times both parties have caused the other harm. While I certainly am not diminishing victimization in legitimate domestic violence cases, there’s no real debate that most domestic violence cases at the lower levels involve some mutual argument between the two parties resulting in a physical altercation between the two parties.
When police are called to these types of cases, the officer(s) must decide who is the “primary aggressor.” The officer can use any detail that is relevant, but here are a few that are listed in the SC statute:
- previous domestic violence or family violence complaints;
- The severity of the injures to each person;
- The likelihood of future injury to each person;
- Whether one of the persons acted in self-defense; and
- Accounts of previous domestic violence from household members.
If the officer can’t determine who is the primary physical aggressor, both parties may be arrested. If the court later finds that one party was the primary aggressor, the charges against the other person may be dismissed.
If the law enforcement officer decides not to make an arrest on the spot, an arrest warrant can be obtained later after presenting the details of the investigation to a judge to determine if there is enough for probable cause. If there is, an arrest warrant may be issued at that time.
Statute of Limitations for Arrests
An arrest for a domestic violence charge can happen at any time. There is no time limit or statute of limitations that law enforcement must follow to make an arrest. Realistically, the more time that goes by, the less likely an arrest is. Likewise, if someone reports a domestic violence incident months after the event, law enforcement is less likely to follow up with an investigation unless there is a good reason for the delay in reporting.
Getting Out of Jail: Bond Considerations
There are two factors a court considers when deciding if someone will be let out on bond. Those factors are: is the person a danger to the community or victim, and second, is the person a flight risk – (will they show up for court?). The court may use any factor it sees appropriate, but here are several from the statute to determine the answer to those two questions:
- family ties;
- financial resources;
- character and mental condition;
- length of residence in the community;
- record of convictions;
- record of flight to avoid prosecution or failure to appear at other court proceedings; and
- any charges pending against a person at the time release is requested.
On a third degree domestic violence charge, the highest bond that is appropriate is the amount of the “fine” that can be imposed. See 22-5-530. This amount would be $2500. However, I can tell you that in practice, the magistrates and municipal court judges generally interpret this to include costs and assessments. With those costs and assessments, a bond on a 3rd degree domestic violence can be around $5000.
For a domestic violence of a high and aggravated nature charge, there may even be additional considerations for the court since DVHAN is a “violent” offense. Violent offenses in South Carolina are those that are defined by statute. Obviously since the crime is much more serious, it is likely to carry a higher bond. If the person is subject to an existing order of protection or restraining order in any state at the time of the offense or it the person has a prior conviction for violating a valid order of protection or restraining order in any state these additional items are considered in deciding whether to release a person on bond:
- Whether the person has a history of domestic violence or a history of other violent offenses;
- The person’s mental health;
- Whether the person has a history of violating the orders of a court or other governmental agency; and
- Whether the person poses a potential threat to another person.
Once the bond hearing is held and the amount of the bond is determined, the person, or a family member or friend can post the bond. This can be in the form of cash or money order to the clerk of court or more realistically, though a bondsman. Once the bond is posted, the clerk will sign an order of release and the person will be released from jail usually within about four (4) hours.
Did You Know…?
A police officer can arrest a person for Domestic Violence and only give them a “traffic ticket”.
PENALTIES & CONSEQUENCES
The potential penalties for a domestic violence conviction are stiff. The penalties were increased with the 2015 amendments. Here they are below:
Third Degree Domestic Violence
This least serious type of domestic violence is a misdemeanor. The potential penalties for a conviction include a fine of $1,000 to $2,500, up to 90 days in jail, or BOTH. This means with costs and assessments, a person could pay over $5000 in fees AND be sentenced to 90 days in jail.
The court has the ability to suspend the sentence ordered for a 3rd degree DV conviction under limited circumstances. All of the following must be true for this to happen:
- The offender completes a domestic violence intervention program,
- The offender complies with any required court obligations,
- The offender pays any restitution ordered by the court.
- The statute mentions probation, but a magistrate or municipal judge cannot give a probationary sentence.
Second Degree Domestic Violence
A 2nd degree domestic violence conviction is also misdemeanor. The penalties can include a fine between $2,500 and $5,000, jail time of up to 3 years, or BOTH. The decision to order a fine, jail, how much of either, or both penalties lies with the judge.
The court has the ability to suspend the sentence ordered for a 2st degree DV conviction and place the offender on probation.
First Degree Domestic Violence
A conviction for 1st degree domestic violence is a felony. It carries up to 10 years in prison. This means the court could impose a sentence from 0 to 10 years and anything in between.
The court has the ability to suspend the sentence ordered for a 1st degree DV conviction and place the offender on probation.
A first degree domestic violence charge is also considered a “serious offense” by statute. This means that after 3 convictions for other “serious” or “most serious” offenses, the penalty could increase to life without parole.
Domestic Violence of a High and Aggravated Nature
A conviction for domestic violence of a high and aggravated nature carries up to 20 years in prison. It is very important to note that DVHAN is also considered violent. A violent designation affects a person’s placement within the department of corrections and has other collateral effects.
The court has the ability to suspend the sentence ordered for a DVHAN conviction and place the offender on probation, however, any active portion of a sentence for DVHAN is considered “no-parole.” This means that an offender would have to serve at least 85% of the sentence before being eligible for “community supervision”. See 24-13-100.
Like first degree domestic violence, DVHAN is also considered a “serious” offense.
Thus, DVHAN is violent, serious and a no-parole offense that carries up to 20 years in prison.
What does the judge consider when deciding if all or part of a sentence will get suspended?
The court can consider a number of things in making this important decision, including the “nature and severity of the offense,” prior criminal record, and the best interest and safety of the victim. Likewise a court will consider the recommendation or wishes of the prosecutor and victim. There is no magic to figuring out what a sentence will be. No one knows that answer until the time of sentencing and the sentence of another defendant for similar charges may have no resemblance to the sentence of someone else.
Pretrial Intervention Programs
Pretrial Intervention Programs also exist and may be available for domestic violence charges. These programs are tailored to the type of charge at hand, for example, domestic violence pretrial intervention will usually include a domestic violence treatment or counseling program. These programs are usually centered around anger management relating to the domestic setting. Successful completion of PTI will lead to a dismissal and expungement of the person’s charge.
The prosecutor or magistrate / municipal court may refer a case to PTI. Ultimately the decision to allow participation in the PTI program is up to the elected solicitor (prosecutor). The solicitor will evaluate the seriousness of the case and the input of the victim when making that decision.
There are fees associated with the PTI program, and the offender is expected to cover those fees as well as the counseling costs. There may be some waiver of the fees for indigency.
Orders of Protection
Many times, victim’s advocates will attempt to assist victims of domestic violence with an Order of Protection from family court. These orders prohibit the person from contacting the victim and require the person to be arrested if there is a violation.
Violating an existing protection order can result in additional charges and consequences. A conviction for violating this type of order is a misdemeanor that carries up to 30 days in jail and a fine up to $500 in addition to possible civil sanctions for contempt.
No Contact Order or No Contact Provision in Bond
In almost every bond for a domestic violence case, there is a “no contact order” or in other words a provision in the bond that requires the defendant to have “no contact” with the victim. This can create huge problems for couples and the condition is generally imposed whether the victim wants it or not. There is some argument that this is in violation of public policy in that it separates married couples without any ability to get back together without further order of the court unless the couple chooses to be in violation of the bond. Remember, at the bond stage, there has been absolutely no judicial hearing on guilt or innocence or even if there is any probable cause in most cases. (Remember a DV 3rd or 2nd, doesn’t even require a warrant.) If there is a further violation or if the prosecutor chooses, a motion can be made before the court to revoke the person’s bond. A revoked bond essentially means that the person returns to jail pending resolution of the case.
Permanent Restraining Orders
Another consequence of a domestic violence conviction is a permanent restraining order. The Domestic Violence Act allows for this type of restraining order under limited conditions. A person can pursue a permanent restraining order if their abuser has been convicted of domestic violence or if they are the guardian or parent of a minor that is a victim of domestic violence. The intent is to protect victims of domestic violence from all contact with the abuser including threats, further abuse, confrontation by the abuser, etc. Violating a permanent restraining order can result in a sentence of up to 5 years in prison.
Did You Know…?
Even a misdemeanor conviction for the lowest level of Domestic Violence can come with jail time and thousands of dollars in fines.
The criminal penalties of a domestic violence conviction are serious, but they aren’t the only potential consequences you may face. Many times, especially with a third degree domestic violence charge, a person may think that they can pay a fine and put all this behind them. This is simply not the case. A Domestic Violence conviction can potentially have lifelong effects in addition to a scar on the relationship.
Many jobs require a clean background. Even if your job does not, chances are the next job you apply for will. Having a domestic violence charge on your record may be an indicator to a potential employer that you’re a “hot head”. Remember, they won’t see any of the facts in doing a background check. All they see is the charge and conviction.
If your job requires a security clearance, you can bet they will eventually find out about the charge. Unfortunately, “innocent until proven guilty” doesn’t really apply to employers or the federal government for that matter. You don’t believe me? Go try to get a security clearance with a pending domestic violence charge and tell them, “I’m innocent until proven guilty.” Their next move will be a point towards the door. Likewise, a charge for domestic violence is good enough to revoke any security clearance which often times results in the loss of a job. I’ve seen this happen many times only for the charges to later be dismissed.
While you may be able to get a third degree domestic violence charge expunged from your record after a period of time, the reality is that it will still come back to haunt you in some form.
There are even some rights that you may lose by state law, including gun rights. SC Code Section 16-25-30 takes away your ability to ship, transport, receive, or possess a firearm or ammunition in certain cases. This right is taken away for domestic violence of a high and aggravated nature and 1st degree domestic violence convictions. For 2nd degree domestic violence convictions there must have been a finding that the person caused moderate bodily injury to a household member to lose gun rights. A judge can also specify at sentencing that gun rights are affected for 2nd and 3rd degree convictions.
If a person is caught shipping, transporting, receiving, or possessing a firearm or ammunition after losing the right to do so there are serious consequences. The specific penalty depends on the domestic violence conviction degree:
- DVHAN and 1st degree domestic violence = person is guilty of a felony and is fined up to $2,000, sentenced to jail up to 5 years, or both
- 2nd and 3rd degree domestic violence = person is guilty of a misdemeanor and could face a fine up to $1,000, jail time of up to 3 years, or both.
Federal law regarding domestic violence convictions is even more strict. Under 18 U.S.C. Sec. 922, it is unlawful for a person convicted of a domestic violence charge to possess any firearm or ammunition. Likewise, it makes it illegal for anyone to sell you a firearm or ammunition.
Did You Know…?
The right to possess a firearm can be taken away under certain circumstances for ANY type of Domestic Violence conviction.
It’s a common misconception that you can plead guilty, get it all over with, and your record will be wiped clean or that nothing will ever show on your record. This is false.
Convictions can only be expunged or removed from your criminal record in limited situations. Regarding domestic violence charges, only a conviction for a third degree domestic violence may be expunged. All other degrees are ineligible with the possible exception of a defendant being sentenced as a youthful offender.
A third degree domestic violence charge may be expunged if there is no other criminal history and five (5) years has lapsed since the date of conviction.
For more information on expungements, you may want to read this article.
Did You Know…?
Most Domestic Violence convictions can’t be wiped from your record. Only the lowest level DV convictions may be eligible for expungement.
TRUTHS & MYTHS
We’ve already established that Domestic Violence is a prevalent issue in SC. Being such a big topic comes with many commonly held beliefs that are plain wrong. Let’s dive into a couple of the most important misconceptions. Some of these are discussed in more detail above.
1. Myth – I can’t get jail time for a first offense.
Truth – Even first offense DV can carry up to 90 days in jail.
Section 16-25-20(D) says, for a first offense of DV 3rd degree “… must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than ninety days, or both.”
This means that you can get the fine or the jail time OR BOTH of “not more than ninety days days.” There is no requirement that the Magistrate impose the fine instead of the jail time. While it is unlikely that a person will be ordered to jail, it is certainly a real possibility.
2. Myth – My spouse can dismiss the charges against me.
Truth – Your spouse, or household member can request that the charges be dismissed, but that doesn’t equate to a dismissal.
When a person is charged criminally, the “State” will prosecute the charges and make the decision as to whether a charge will be dismissed or not. The victim has a lot of say in the prosecution of the case, but a prosecutor does not have to yield to the victim in deciding whether to pursue a charge. This is increasingly true where there have been past charges of domestic violence.
3. Myth – First Offense DV charges are routinely dismissed.
Truth – First offense DV charges are routinely prosecuted despite the request of the victim or even the evidence that that State has against the defendant.
Where there is probable cause to proceed with a case, it is a rarity that the case will be dismissed without judicial intervention. It baffles me by some of the allegations that prosecutors will proceed on. Allegations of, “he pushed me” or “she through water on me” are routinely the basis for domestic violence cases that are really no better than backseat sibling behavior. Regardless, these cases get prosecuted and sometimes go to trial. Often times, these cases get diverted to PTI if eligible.
4. Myth – I can still carry a gun after a DV conviction.
Truth – Under federal law, section 18 U.S.C 922(g)(9) prohibits a person from carrying any firearm or ammunition after a conviction for a “misdemeanor crime of domestic violence.” The statute also includes other charges that carry “more than a year in jail.” This would encompass the rest of the domestic violence charges whether misdemeanors or felony.
The state law has been modified as well to potentially affect the ability to possess a firearm or ammunition after having been convicted of DV. See SC Code 16-25-30.
5. Myth – Physical injury must occur to be charged with DV.
Truth – The South Carolina statute for domestic violence does not require physical injury.
The “offer or attempt” to cause injury is sufficient to sustain a conviction for DV.
6. Myth – My spouse has to testify to be convicted of DV.
Truth – While testimony of a spouse certainly helps the prosecution, it is not required.
Exceptions to the hearsay rule can be used to bring in statements from the victim; 911 recordings of the victim can be used if authenticated to bring in the victim’s story as well as photographs of any injuries taken by the officer or other personnel.
Not to mention, any statements made by the defendant can be used as well.
7. Myth – If my spouse doesn’t show up for court, the case will be dismissed.
Truth – If the spouse or witness is served with a subpoena he or she must appear or be subject to a bench warrant or contempt charges.
If there is not a subpoena, the case might be continued until one is issued or the prosecutor may proceed by using the methods described in the answer above. A cooperative victim is not always required for a domestic violence conviction.
8. Myth – If the officer doesn’t show up for court, the case will be dismissed.
Truth – This is going to depend more on the jurisdiction.
However, many times, an attorney from the attorney general’s office or an assistant solicitor will be assigned to prosecute domestic violence cases.
If the prosecutor is there and the officer is not, likely the case will be continued.
Likewise, in cases where the victim is cooperative with the prosecutor, the victim may testify and the testimony of law enforcement might not be required.
9. Myth – If the police can’t determine who injured who, no one will be arrested.
Truth – Generally, if the police are called, someone is going to be arrested.
South Carolina law section 16-25-70(b) previously mandated that law enforcement arrest a person on a domestic violence call where there is probable cause to believe that the person is the primary aggressor.
The statute has now been modified to allow the officer freedom to decide if an arrest should in fact be made.
Regardless, most officers take the position that they must still make an arrest to remove one person from the dispute to prevent or minimize potential or further injury. In some situations, law enforcement may arrest both parties.
10. Myth – They didn’t read me my rights when I was arrested, therefore the case has to be dismissed.
Truth – This misconception is one that I hear over and over again.
The truth is that “Miranda” rights only apply when there is questioning by law enforcement when the person is “in custody.”
Simply asking a few questions at the outset may not be enough to require that Miranda warnings be given.
And, just because an officer arrests someone doesn’t immediately require that the Miranda warnings be given.
Did You Know…?
The state can sometimes successfully prosecute a DV case even without a cooperating victim.