It is very important to note that there is a “new” Criminal Domestic Violence law in South Carolina. If you were arrested before June 4, 2015, the “old” law applies. If you were arrested on or after June 4, 2015, the “new” law applies.
If you are charged with criminal domestic violence (CDV), the State of South Carolina has to prove that there was the requisite relationship. That means the you and the victim are or were married or lived together or have a child together. The prosecution also has to show that the alleged victim was hurt or threatened to be harmed by the you and that you had the ability to carry out the threat. That means that the threat had to be believable. For example, if you said you were going to shoot the alleged victim but victim knew there were no guns readily available, then the threat is not believable. There is no requirement that the person be actually injured. However, police are required to arrest you if there is an injury and the other party says you caused the injury and they determine that you were the aggressor.
The prosecution does not have to prove intent. That means even if it is an accident, you can still be charged, especially if they don’t believe it really was an accident. They do not have to show that you were mad at the other party or wanted to hurt them. You can be charged even if the other party refuses to press charges or tries to drop the charges. Prosecutors often are afraid to drop cases because if the party does actually get hurt in the future, there could be the possibility of a lawsuit or the prosecutor could lose his or her job. This produces many unjust arrests for criminal domestic violence because there are numerous arrests based on the fact that one party is trying to use the domestic violence arrest to gain an advantage in court in a divorce or child custody case. If you are involved in a contested case, you should be cautious of your contacts with the other party. One way is to have the child custody exchange at a public location such as a McDonald's.
Penalties for Criminal Domestic Violence
Under the new law it is important to note the difference between “degrees” and “offenses.” You can be arrested for Criminal Domestic Violence Second Degree, but it may be your first Domestic Violence "offense".
These are the penalties under the "old" CDV statute.
(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;
(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;
(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 "new" CDV statute sets out various degrees of Criminal Domestic Violence.
CDV First Degree is a felony and if found guilty you can be imprisoned for up to ten years.
CDV Second Degree is a misdemeanor with possible jail time of up to three years and a fine of up to $5,000.00.
CDV Third Degree is a misdemeanor with possible jail time of up to ninety days and a fine of up to $2,500.00.
CDV High and Aggravated is a felony and if found guilty you can be imprisoned for up to twenty years.
There are also provisions in the new law prohibiting the possession of firearms or ammunition depending on the degree of the violation.
Is Criminal Domestic Violence Grounds for Divorce
In South Carolina, a divorce on the ground of cruelty is specifically limited to physical cruelty. S.C. Const., art. XVII, § 3 (1895); S.C.Code of Laws § 20-3-10 (1976); see, Sumner, The South Carolina Divorce Act of 1949, 3 S.C.L.Q. 253 at 268-70 (1951). "Physical cruelty," as used in our divorce law, means "actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe." Brown v. Brown, 215 S.C. 502, 506, 56 S.E.2d 330, 333 (1949). In determining what acts constitute physical cruelty, the circumstances of the particular case must be considered. Crowder v. Crowder, 246 S.C. 299, 143 S.E.2d 580 (1965). A single act of physical cruelty, however, will not ordinarily provide a basis for divorce, unless the act "is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future." Smith v. Smith, 253 S.C. 350, 354, 170 S.E.2d 650, 652 (1969). Moreover, a divorce on the ground of physical cruelty will not be granted when the physical cruelty was provoked by the complaining spouse and the physical cruelty is not out of all proportion to the provocation. Miller v. Miller, 225 S.C. 274, 82 S.E.2d 119 (1954)
A single assault by one spouse upon the other spouse, then, can constitute a basis for a divorce on the ground of physical cruelty; however, the assault must be life threatening or it must be either indicative of an intention to do serious bodily harm or of such a degree as to raise a reasonable apprehension of great bodily harm in the future. Cf., Gill v. Gill, 269 S.C. 337, 237 S.E.2d 382 (1977) (husband held not entitled to divorce on ground of physical cruelty where, among other things, wife threatened husband with a BB gun and husband admitted he was not afraid); McKenzie v. McKenzie, 254 S.C. 372, 175 S.E.2d 628 (1970) (a single battery held to be so severe and atrocious as to endanger life where wife shot at husband four times at close range and one bullet entered husband's chest); DeMott v. DeMott, 198 Va. 22, 92 S.E.2d 342 (1956) (a single battery involving husband throwing wife against the wall held not to constitute a ground for divorce).
A showing of a continued pattern of domestic violence or a single charge of criminal domestic violence of a high and aggravated nature could be grounds for divorce in South Carolina.
A person charged with criminal domestic violence should definitely hire a South Carolina family law attorney that also handles criminal matters. If you have been charged with a CDV, call
L. Wayne Patterson
Greenville Criminal Defense Attorney
10 Century Dr.
Greenville, SC 29607
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