Domestic violence: the “new” law Donna M. Green Chief magistrates court prosecutor 10th Judicial circuit Solicitor’s office

oVERVIEW Dynamics of a domestic violence relationship Review of newly enacted Domestic Violence and related laws How Service Providers can assist victims of Domestic Violence

What is domestic violence? Abuse of an intimate partner by a partner, with the intent of one partner to gain power and control over the other through the use of violence and fear Types of abuse: Physical (assaults, generally recurring and increasing in both severity and frequency over time) Emotional/Psychological (use of intimidation, degradation, isolation tactics, etc. to manipulate victim as a means of controlling through fear and degradation. Usually precedes and accompanies physical abuse) Sexual (including forced sex/rape, or sexual degradation) Economic (controlling access to the purse strings, used as either a barrier for victims to leave or as a coercion to stay)

Examples of abuse Excessive jealousy or possessiveness Controlling behavior Traditionalist beliefs Family history of violence Substance abuse Isolation from family or friends Fast-moving relationship Dating violence Low self-esteem Unbalanced financial arrangement

Characteristics of a “typical” DV Victim Low Self-esteem Strong belief in family unity (stereotypes) Accept responsibility for batterer’s actions Deny the terror and anger they feel Have severe stress reactions Believe that no one can help them May be too ashamed or embarrassed to reveal/discuss injuries May appear incoherent and hysterical after battering incident May bail batterer out of jail May accompany batterer to court, refuse to testify , or testify for the batterer Often still loves the batterer and is emotionally dependent Believes the batterer is all-powerful and can find them anywhere Feels they are the only ones who can help batterer with their problems

Why do victims stay? Emotional factors Situational Factors: Love/hope Physical danger/fear (Most domestic homicides occur after the victim leaves!) Economic dependence Isolation Lack of alternative housing Children Cultural and religious constraints Lack of job skills Emotional factors Love/hope Low self-esteem Shame/embarrassment Fear of change/fear of unknown Belief that the batterer will change Childhood experiences

Characteristics of an abuser Experienced or witnessed violence in childhood Low self-esteem Overly dependent on victim Comes from all social, ethnic and socio-economic backgrounds Believe in traditional views of stereotypical male/female sex roles Blame others for their actions/no accountability Deny /minimize the effects of violence on victims and witnesses Extremely jealous or possessive Abuse alcohol or drugs Does not believe that violent behavior should have negative consequences Exhibit cruelty to animals and children Become quickly involved in the relationship Isolate their partner from family/friends Verbal abuse/intimidation Alternate from extreme tenderness to extreme aggression Public vs. private personality

Why change the previous laws? Punishment based on number of convictions, not severity of incident Increased penalties/punishments for offenses DV Task Force recommendations New protections for victims

New SC Domestic violence laws What changed? Terminology (classified by degree instead of offense) Enhancements (several factors, if present, can enhance a charge to the next higher level) Penalties (increased penalties based on degree of offense) Emergency Restraining Orders, Permanent Restraining Orders, and General Restraining Orders Bond conditions (Magistrates can require officer to appear or provide report at bond hearing, more restrictions can be put in place) New gun restrictions (Federal law already existed; new State law has gun restrictions and criminal charges)

Domestic Violence- Definitions Basic element of all Domestic Violence offenses: Household member (spouse, former spouse, male & female who cohabitate(d) or have a child in common) Applies to same sex marriages under USSC ruling, but currently not to same-sex couples who cohabitate (not specified in the statutory language) Defendant inflicted physical harm/injury to a household member OR Defendant offered/attempted to cause such with the apparent present ability under circumstances reasonably creating fear of imminent peril

Definitions (continued) Great Bodily Injury: an injury that causes substantial risk of death or serious, permanent disfigurement or protracted loss or impairment Moderate Bodily Injury: physical injury that either involves prolonged loss of consciousness, causes temporary/moderate disfigurement, causes temporary loss of function of bodily member or organ, results in need for medical treatment requiring use of regional or general anesthesia, results in fracture or dislocation. Deadly weapon: any pistol, dirk, slingshot, metal knuckles, razor, or other instrument which can be used to inflict deadly force. Firearm: Pistol, revolver, rifle, shotgun, machine gun, submachine gun, or assault rifle designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive, but does not include an antique firearm as defined in 18 U.S.C. 921(a)(16)

DV Third Degree Defendant committed basic element against household member, i.e.: Defendant actually inflicted physical harm or injury to a household member, OR Defendant offered or attempted to cause such harm or injury with the apparent present ability under circumstances reasonably creating fear of imminent peril Jurisdiction: Magistrates Court OR General Sessions Court Classification: Misdemeanor Punishment: 0-90 days imprisonment and/or $1000-2500 fine (plus costs & assessments)

DV Second Degree Defendant committed basic element PLUS one of the following: Moderate Bodily Injury resulted or was likely to result; OR Prior conviction for DV within past 10 years; OR Committed DV 3rd Degree and an enhancement factor was also present:

“Enhancement Factors” Element present during commission of a DV event that can increase the charge and punishment Violation of a Protective Order Knew/should have known V pregnant In presence of or perceived by minor Committed during robbery, burglary, kidnapping, or theft Impeded victim’s breathing or air flow (includes loss of consciousness for DVHAN) PFTBA (Offense committed by using physical force or threat of such force to block person’s access to phone/electronic communication device with purpose of preventing or interfering with report to LE agency or request for emergency medical assistance

DV Second Degree (continued) Enhancements move case from DV 3rd degree to DV 2nd degree, with higher punishments Only need 1 enhancement to increase charge Multiple enhancements do not “aggregate” to increase to another higher charge Jurisdiction: General Sessions (not eligible for Transfer Court) Classification: Misdemeanor Penalties: 0-3 years imprisonment and/or $2500-$5000 fine

DV First Degree Defendant committed basic element (caused harm or offered/attempted to cause harm to Household member) AND: 2 or more prior DV convictions within prior 10 years; OR Inflicted GBI or actions accomplished by means likely to result in GBI; OR Used firearm while committing Basic Element; OR Committed DV 2nd Degree AND Either (enhancement factor present): Was in process of violating PO; OR Defendant knew/should have known v pregnant; OR Minor was present/perceived event; OR Committed during Robbery, burglary, kidnapping or theft; OR Offense impeded v’s breathing or air flow (strangulation); OR PFTBA (physical force or threat to block access)

DV First degree (continued) Jurisdiction: General Sessions Classification: Felony, (Violent Crime, Serious Offense) Penalties: 0-10 years imprisonment

DV of a High and Aggravated Nature Evidence shows defendant either: Committed offense under circumstances manifesting extreme indifference to the value of human life and GBI results; OR Committed offense (with or without accompanying battery) under circumstances manifesting extreme indifference to value of the human life and would reasonably cause a person to fear either GBI or death; OR Violated PO and, in process, committed DV 1st Degree Examples include: Use of deadly weapon and other enhancements previously listed

DVHAN (continued) All other DVs (1st, 2nd and 3rd degrees) are made lesser included offenses of DVHAN Jursidiction: General Sessions Classification: Felony (Violent Crime, and Serious Offense) Penalties: 0-20 years imprisonment

Restraining Orders & Orders of Protection Types: Emergency Restraining Order (new) Permanent Restraining Order (new) Order of Protection

Emergency Restraining Order Emergency Restraining Order- issued by magistrate, for purposes of protecting victim of or witness to a crime from a defendant Issued after CONVICTION of Defendant for qualifying criminal offense Remains in effect until a hearing for a Permanent Restraining Order or 45 days, if no PRO sought Penalties for violation are based on underlying charge (0-3 years and/or $0-2000 fine if misdemeanor; 0-5 years if felony) Jurisdiction: Order can be ISSUED by a Magistrate, Circuit Court, or Family Court Judge Violation is tried in General Sessions (Felony or Misdemeanor)

Permanent Restraining Order Permanent Restraining Order- issued by GS or Family Court at time of conviction Issued after CONVICTION of Defendant for qualifying criminal offense Lasts for period of time specified by judge in PRO Penalties for violation depends on underlying charge (0-3 years and/or $0-2000 fine if misdemeanor; 0-5 years if felony) Jurisdiction: Can only be issued by Circuit Court and Family Court Violation heard in General Sessions Court

order of protection Order of Protection Family Court issued: valid for 6 months up to a year, punishable by up to 1 year in jail and/or $1500 fine for contempt Can be extended with hearing & notice to defendant Extensive list of additional remedies that Family Court can also order, such as custody/visitation, financial support, etc. Magistrate issued: valid for 6 months up to a year, punishable by up to 30 days in jail and $500 fine Can (should) be issued during non-business hours or when Family Court is not in session Can include a “no contact order” as a condition of bond for pending case Can be issued after WITHOUT REGARD TO whether defendant has been convicted of underlying offense

Bond Conditions Bond conditions amended to include that the setting judge may consider whether defendant’s release would constitute an unreasonable danger to an individual (particularly the victim) Bond hearings for a DV offense must occur within 24 hours of arrest; Bond hearing may not proceed without the defendant’s criminal record and incident report OR presence of arresting officer

Gun Restrictions Unlawful for person to Ship, Transport, Receive or Possess Firearm or Ammunition (STROPFA): Ever convicted of DVHAN or DV 1st degree: gun rights restricted for LIFE (DVHAN), or 10 years from date of conviction or release from imprisonment, whichever is later. Jurisdiction: General Sessions Classification: Felony Punishment: 0-5 years imprisonment and/or $0-2000 fine

Gun Restrictions (Continued) Unlawful for person to Ship, Transport, Receive or Possess Firearm or Ammunition (STROPFA): Ever convicted of DV 2nd or 3rd degrees & specific order of court restricting defendant’s gun rights, gun rights restricted for 3 years from date of conviction or release from imprisonment, whichever is later Jurisdiction: General Sessions Classification: Misdemeanor Punishment: 0-3 years imprisonment and/or $0-1000 fine

Gun Restrictions (Continued) Unlawful for person to Ship, Transport, Receive or Possess Firearm or Ammunition (STROPFA): Defendant subject to a valid Order of Protection from Family Court or similar court of another state (not an ERO or PRO); Protective Order contains specific findings of physical harm, BI or assault (offer or attempt); AND Court specifically ordered defendant could not own/possess guns Jurisdiction: Summary Court or Court issuing Protective Order Classification: Misdemeanor Punishment: 0-30 days imprisonment and/or $0-500 fine

Gun Restrictions (continued) Appears that court has to make specific findings on the record of both the degree and type of bodily injury inflicted, and must put defendant on notice that s/he cannot STROPFA Unclear if it applies to convictions on CDV or CDVHAN prior to new law If in doubt, can still pursue prosecute under Federal Statute (18 USC 922(g))

Additional Changes Solicitors, not DSS, now approve batterer’s treatment programs for their Circuit DV 2nd or 3rd degree can be written on UTT; all other DV offenses MUST be on a warrant LEA must prepare an incident report if someone is arrested for DV offense Mandatory arrest provision for “physical manifestation of injury” is now discretionary Provided, however, that there still has to be Probable Cause for the arrest (i.e., no arrest if officer determines wounds are self-inflicted, caused by person defending themselves, not caused by defendant, etc.) Victim definition includes minors who witness DV offense Only first offense DV 3rd conviction can be expunged after 5 years, if no other convictions during 5 years DV 2nd degree is not eligible for PTI (even if no prior conviction/based on enhancing factor- specifically excluded) New act is not retroactive for cases pending on June 4, 2015.

What role can you play in breaking the cycle? Victims: Developing a safety plan for victims who want to safely leave violent intimate relationships Identify shelters, non-profit and governmental agencies that can provide immediate and emergency assistance Identify long-term services, including counseling and support groups, for victims and their families Treatment (mental health, physical health, substance abuse treatment, support groups) Job skills training, education Batterers Batterers Treatment Programs Mental health, substance abuse treatment Job skills, education

Agencies providing victim services State Office of Victim Assistance South Carolina Victim Assistance Network South Carolina Crime Victim Ombudsman South Carolina Coalition Against Domestic Violence and Sexual Assault National Coalition against Domestic Violence Domestic Abuse Centers (FCC, CASA, Carolina Family Services, etc.) & many others

Questions? Donna M Green Chief Magistrate Court Prosecutor 10th Judicial Circuit Solicitor’s Office Donna.Green@Solicitor10.org (864) 260-4268 (office)