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
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".
The South Carolina CDV statute sets out various degrees of Criminal Domestic Violence and there are provisions prohibiting the possession of firearms or ammunition depending on the degree of the violation.
The lowest degree of domestic violence in South Carolina is 3rd degree. It states that you cannot cause injury or physical harm to a household member or threaten them with harm causing imminent fear. It’s a misdemeanor and can cost the abuser between $1,000 and $2,000 and up to 90 days in jail.
2nd degree domestic violence includes everything from 3rd degree plus one additional factor. These factors may include moderate bodily injury that leads to loss of consciousness, disfigurement, fracture, dislocation, or needing to receive medical attention with anesthesia for loss of function in a body part or organ. It also includes a prior domestic violence conviction in the last 10 years, violation of a protection order, abuse in the presence of a minor, attacking a pregnant victim, restricting the victim’s air flow, committing the offense during a robbery or kidnapping, or blocking access to a phone or device to stop the victim from calling medical care or police. To be considered 2nd degree, only one of these factors has to be proven. Punishment is up to 3 years in jail and a fine costing between $2,500 and $5,000.
Like 2nd degree domestic violence, 1st degree requires an additional factor on top of the threat of violence. 1st degree factors include injury that results in a substantial risk of death, causes protracted impairment or loss of function of a body part or organ, or causes permanent disfigurement; two or more domestic violence convictions in the last 10 years; use of a firearm; violation of a protection order with any other 2nd degree factor; or a 2nd degree offense that happens during a robbery or kidnapping, against a pregnant victim, in front of a child, or while impeding the victim’s breathing or blocking them from calling for medical care or police. 1st degree domestic violence is considered a felony and is punishable by up to 10 years in prison.
Domestic violence of a high and aggravated nature needs one factor past 1st degree. These include extreme indifference to the value of human life, causing fear of imminent great bodily injury or death, and violation of a protection order leading to domestic violence in the 1st degree.
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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