South Carolina Domestic Violence Recommendations
South Carolina Domestic Violence Recommendations
1.Allow for Same Sex Partners to Obtain Protective Orders
The Protection from Domestic Abuse Act allows for a “household member to obtain an order of protection. South Carolina Code Section 20-4-20 states that
(b) “Household member” means:
(i) a spouse;
(ii) a former spouse;
(iii) persons who have a child in common;
(iv) a male and female who are cohabiting or formerly have cohabited.
South Carolina thus precludes same sex partners from obtaining protective orders. It is one of only three states that has such a prohibition.[1] Research shows that same sex domestic violence occurs at similar rates and for similar reasons as domestic violence in other relationships. With an estimated 3% of South Carolina’s population being homosexual, this is a significant number of people not protected by the Act. It also means that these individuals have reason to fear prejudicial treatment by the authorities. Finally, the narrow definition of “household member” in the Act likely reinforces stereotypes concerning domestic violence. Therefore, I recommend that South Carolina follow the lead of the 47 states that allow same sex partners to obtain protective orders.
2.Eliminate Disparate Treatment for Spousal Sexual Battery
South Carolina Code Section 16-3-615 reads as follows:
(A) Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.
(B) The offending spouse's conduct must be reported to appropriate law enforcement authorities within thirty days in order for that spouse to be prosecuted for this offense.
First, South Carolina is one of only three states that separates rape or sexual assault by spouses from rape or sexual assault committed by others.[2] Second, South Carolina is the only state that has a lesser maximum penalty for spousal rape: ten years instead of thirty years.[3] Third, South Carolina is the only state that requires “the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature” for a sexual act between spouses to qualify as spousal rape.[4] Fourth, South Carolina is one of only three states that mandates a prompt complaint for a spousal rape action to proceed.[5] Moreover, South Carolina’s time period for reporting is the shortest: thirty days. California requires reporting within one year while Illinois requires reporting in thirty days but allows an extension for good cause.
All four of these elements of South Carolina law should be repealed. Spousal rape should be considered the same as other rapes, the potential punishment should be the same, any involuntary sexual act between spouses should be considered rape, and there should be no prompt complaint requirement. Removing the prompt complaint requirement is especially important given that the victims of spousal rape are especially unlikely to promptly report given the nature of their relationship with their spouses.
3.Make a Second Domestic Violence Conviction a Felony
South Carolina Code Section 16-25-20 states that
(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.
(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.
(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.
Recent legislation has focused on increasing the maximum penalty for a first time CDV offense to 180 days. Such legislation is certainly important and better reflects the gravity of the crime of CDV. I argue, however, that more focus should be placed on a second CDV violation. In many states, a second CDV offense is a felony offense, with all of the collateral consequences that flow from a felony conviction.[6] Given that a defendant who commits a second CDV offense has shown a lack of rehabilitation and unresponsiveness to counseling, it makes sense to classify the second offense as a felony offense.
4.Increase the Number of Domestic Abuse Shelters
The National Coalition Against Domestic Violence has flagged North Carolina as a state with seventeen counties lacking domestic abuse shelters.[7] It has recently been reported that South Carolina is an even worse situation, with twenty-eight out of our forty-six counties lacking such shelters.[8] Given the import role that such shelters play for victims of domestic abuse, this number needs to be increased if the expansion is financially feasible.
5.Take Guns and Ammunition Out of the Hands of Domestic Abusers
In 1996, Congress passed a federal law banning the possession of guns by those convicted of misdemeanor domestic violence.[9] Since then, most states have enacted similar laws, and at least twenty-seven states have passed laws requiring those convicted of misdemeanor domestic violence to surrender their firearms and ammunition.[10] Most states also similar laws that govern those who are the subjects of protective orders.[11] South Carolina has considered passing a similar law but does not currently have a law preventing those with protective orders of misdemeanor domestic violence convictions from possession firearms or ammunition.[12] South Carolina should pass this type of legislation because (1) seven of the ten states with the highest rate of male on female homicide lack such legislation; and (2) “An analysis of female domestic homicides (a woman murdered by a spouse, intimate acquaintance, or close relative) showed that prior domestic violence in the household made a woman 14.6 times more likely, and having one or more guns in the home made a woman 7.2 times more likely, to be the victim of such a homicide.”[13]
6.Increase Bond Cap/Implement Forfeiture to Victim
The current bond cap for a defendant charged with a first CDV offense is $5,000, which means that such a defendant can obtain release by paying more than $500, or 10% of the bond amount.[14] Because this is among the lower caps in the country, there have been proposals to increase that bond cap to $30,000 or remove it altogether.[15] I recommend increasing the bond amount or removing it altogether because it puts trust in a judge to use his discretion in setting a higher bond amount depending upon the gravity of the crime charged and the strength of the evidence.
I would also recommend that South Carolina follow the lead of nine states which “authorize funds from forfeited bail bonds be directed to victims.”[16] Because domestic violence involves domestic partners, the funds use to pay bail bonds usually come out of shared assets. Therefore, if forfeited bail bonds are not directed to victims, a domestic violence victim suffers both a physical and financial injury.
7.Increase the Number of Domestic Violence Courts
Greenville County has recently been testing a domestic violence court as part of a pilot program, and the response to the court has been positive.[17] If resources allow, I would recommend the expansion of this pilot program and the creation of more domestic violence courts. It has been noted that
Interviews conducted of women following the disposition of their cases in specialized domestic violence court programs indicate the positive effects of the kind of training these programs mandate. When judges and court personnel are familiar with the dynamics of abuse, and the remedies that they ultimately employ in the disposition of cases reflect that familiarity, women feel supported and positive about the legal process.[18]
8.Create a Fatality Review Team
Currently, forty-one states have fatality review teams that study domestic killings. These teams both (1) increase the likelihood of domestic abusers being brought to justice; and (2) allow states to study patterns and learn lessons that can be effective in reducing domestic violence. South Carolina is currently one of only nine state that does not have such a team.[19] I would thus recommend the creation of such a team if resources are available.
9.Amend South Carolina’s Mandatory Arrest Law
Section 16-25-70(B) of the South Carolina Code states that
(B) A law enforcement officer must 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 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.
South Carolina is one of only three states with mandatory arrest policies that requires both probable cause and a physical injury to trigger application of its policy.[20] I would argue that probable cause to believe that an act of domestic violence is being committed or has freshly been committed should be sufficient to trigger to mandatory arrest policy regardless of whether physical is visible.
I also believe that the language regarding the domestic violence to be current of “freshly committed” turns a mandatory arrest policy into a discretionary one. Many states have no temporal requirement in their mandatory arrest statutes while others have statutes with definite timing requirements making arrest mandatory if the domestic violence was committed in the prior 12 or 24 hours.[21] I would thus recommend amending or altering South Carolina’s timing requirement.
10.Amend South Carolina’s Medical Reporting Rule
Section 16-3-1072(A) of the South Carolina Code states that
(A) Any physician, nurse, or any other medical or emergency medical services personnel of a hospital, clinic, or other health care facility or provider who knowingly treats any person suffering from a gunshot wound or who receives a request for such treatment shall report within a reasonable time the existence of the gunshot wound to the sheriff’s department of the county in which the treatment is administered or a request is received. However, no report is necessary if a law enforcement officer is present with the victim while treatment is being administered.
This means that medical personnel are not obligated to report domestic violence cases involving injuries from knives or other weapons besides firearms to the sheriff’s department. This is contrary to the law in forty-two states, which “have reporting requirements for injuries resulting from firearms, knives, or other weapons.”[22] I would thus recommend at a minimum that South Carolina amend its medical reporting rule to put our state in compliance with these forty-two other states.
Moreover, “[t]wenty-three states have reporting requirements for injuries resulting from crimes,” and “[s]even states have statutes that specifically require health providers to report injuries resulting from domestic violence.”[23] Given the enormity of the domestic violence issue in this state, I recommend expanding South Carolina’s medical reporting rile to put us in compliance with these other states.
[1] See Domestic Violence Civil Protection Orders (CPOs) By State, at
[2] See Morgan Lee Woodley, Note, Marital Rape: A Unique Blend of Domestic Violence and Non-Marital Rape Issues, 18 HASTINGS WOMEN’S L.J. 269, 283 (2007) (noting that six states had such statutes as of 2003, with three since repealing them).
[3] See id. (noting that four states used to have a distinction but that the other three states have repealed their distinctions).
[4] Michelle J. Anderson, Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates, 54 HASTINGS L.J. 1465, 1496 (2003).
[5] Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. REV. 945, 949 (2004).
[6] See, e.g., Ohio Revised Code Section 2919.25.
[7] North Carolina Domestic Violence Facts, at
[8] Connor Friedersdorf, A Deadly Epidemic of Violence Against Women, The Atlantic, at
[9] See 18 U.S.C. § 922(g)(9).
[10] See Removing Guns from Domestic Violence Offenders, at http://www.jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-gun-policy-and-research/publications/RemovingGunsfromIPVOffenders7Oct09.pdf.
[11] See id.
[12] See Harrison Cahill, S.C. advocates push bill banning gun purchases by criminal domestic abusers, at
[13] Facts of Firearms and Domestic Violence, at
[14] See Jenna Troum, Solicitor: Domestic Violence Court Will Empower Victims, Cut Crime, at
[15] Id.
[16] Pretrial Release: Victims’ Rights and Protections, at
[17] See, e.g., Jenna Troum, Solicitor: Domestic Violence Court Will Empower Victims, Cut Crime, at
[18] Jennifer Thompson, Comment, Who’s Afraid of Judicial Activism? Reconceptualizing a Traditional Paradigm in the Context of Specialized Domestic Violence Court Programs, 56 ME. L. REV. 407, 428-29 (2004).
[19] Doug Paradise & Glenn Smith, Looking for lessons in domestic tragedies, at
[20] David Hirschel, Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest Rates, at http://www.nij.gov/publications/dv-dual-arrest-222679/documents/dv-dual-arrest.pdf.
[21] See id.
[22] Violence-inflicted injuries: reporting laws in the fifty states, at http://www.ncbi.nlm.nih.gov/pubmed/11782731.
[23] Id.