In recent years, the state of South Carolina has implemented a number of changes to its domestic violence laws, with the goal of increasing penalties for those found guilty of such offenses.
However, this push to combat domestic violence in South Carolina has resulted in a wide net being cast, which has led to many innocent individuals being caught up in the legal system.
Many people are charged with domestic violence based on a neighbor’s complaint.
Some police officers will tell couples, “If someone calls the police to report domestic violence, we have to take someone to jail in most situations.”
Other times police officers will arrest both parties without investigating and identifying the primary aggressor, and defendants are often arrested and prosecuted even when the alleged victim denies that an assault happened.
In this article, we will cover the basics of the most recent domestic violence laws in SC, including:
- The differing degrees of domestic violence – DV 1st Degree, 2nd Degree, 3rd Degree,
- The most serious charge of Domestic Violence of a High and Aggravated Nature (DVHAN),
- What elements the state must prove to get a conviction:,
- The potential penalties and consequences for a DV conviction, and
- When a domestic violence conviction can be expunged.
Domestic Violence Charges in SC
Domestic violence charges in SC increase in severity based on the number of previous DV convictions the person has, the degree of injury suffered by the alleged victim, and other aggravating circumstances.
In addition to the loss of a person’s right to own a firearm, the penalties can range from up to 90 days in jail for a DV third offense to up to 20 years in prison for a DVHAN (domestic violence high and aggravated) conviction.
The 4 Types of Domestic Violence Charges in South Carolina
Below, we will look at each degree of domestic violence charges in turn, beginning with the lowest “baseline” offense of third-degree domestic violence.
Domestic Violence (DV) 3rd Degree
SC Code § 16-25-20 says that 3rd-degree DV requires proof that a person:
- Caused physical harm to a household member (battery), or
- Offered or attempted to cause physical harm to a household member (assault).
All DV charges require proof of these two elements, but DV 2nd, 3rd, and DVHAN require proof of additional aggravating factors.
What is the definition of a household member?
SC Code § 16-25-10 defines “household member” as:
- A spouse,
- A former spouse,
- Persons who have a child together, or
- A male and female who are cohabiting or formerly have cohabited (lived together).
Note that, in July 2017, the SC Supreme Court invalidated the definition of “household member” as a “male and female” who live together to the extent that it does not include same-sex couples. Same-sex couples can be charged with criminal domestic violence, and they can seek a protective order from the family court when needed.
DV 3rd degree is a misdemeanor that carries up to 90 days in jail, a fine of $1000-$2500 plus court costs, and it may include mandatory counseling as part of the sentence.
Domestic Violence (DV) 2nd Degree
As with DV 3rd degree, Second-degree domestic violence requires proof that a person:
- Caused physical harm to a household member (battery), or
- Offered or attempted to cause physical harm to a household member (assault).
Second-degree DV also requires proof of one or more aggravating factors which include:
- Moderate bodily injury to the alleged victim (or the potential for moderate bodily injury),
- The defendant was violating a protection order while committing what would have been a DV 3rd degree,
- A prior conviction for domestic violence within ten years, or
- The defendant committed a DV 3rd degree and there is one of the following aggravating factors: 1) a minor was present, 2) the alleged victim was pregnant, 3) the DV happened during a robbery, burglary, kidnapping, or theft, 4) the defendant “imped[ed] the victim’s air flow or breathing,” or 5) the defendant used or threatened physical force to block access to a communication device to prevent the alleged victim from reporting the crime or seeking medical help.
What is “moderate bodily injury?”
“Moderate bodily injury” doesn’t mean scratches, cuts, or bruises that do not require extensive medical care. It is defined as a “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.”
DV 2nd degree is a misdemeanor offense, but it is prosecuted in General Sessions Court and carries up to three years in prison and a fine of $2500 – $5000 plus court costs if convicted.
Domestic Violence (DV) 1st Degree
As with DV 2nd and 3rd degree, First-degree domestic violence requires proof that a person:
- Caused physical harm to a household member (battery), or
- Offered or attempted to cause physical harm to a household member (assault).
First-degree DV also requires proof of one or more aggravating factors which include:
- Great bodily injury to the alleged victim (or the potential for great bodily injury),
- The defendant was violating a protection order while committing what would have been a DV 2nd degree,
- Two or more prior convictions for domestic violence within ten years,
- The defendant used a firearm to commit domestic violence, or
- The defendant committed a DV 2nd degree and there is one of the following aggravating factors: 1) a minor was present, 2) the alleged victim was pregnant, 3) the DV happened during a robbery, burglary, kidnapping, or theft, 4) the defendant “imped[ed] the victim’s air flow or breathing,” or 5) the defendant used or threatened physical force to block access to a communication device to prevent the alleged victim from reporting the crime or seeking medical help.
What is “great bodily injury?”
“Great bodily injury” is defined as “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.”
DV first-degree is a felony offense that carries up to ten years in prison and is designated as a “serious” offense for purposes of SC’s three-strikes law.
Domestic Violence of a High and Aggravated Nature (DVHAN)
The most serious DV offense is domestic violence of a high and aggravated nature (DVHAN), found in SC Code § 16-25-65.
As with the other degrees of DV, DVHAN requires proof that a person:
- Caused physical harm to a household member (battery), or
- Offered or attempted to cause physical harm to a household member (assault).
It also requires proof of one or more aggravating factors which include:
- There were “circumstances manifesting extreme indifference to the value of human life” and 1) the alleged victim suffers great bodily injury, or 2) the alleged victim reasonably feared great bodily injury or death, or
- The person was violating a protection order while committing domestic violence first degree.
What are “circumstances manifesting extreme indifference to the value of human life?”
It could mean:
- A minor was present,
- The alleged victim was pregnant,
- The DV happened during a robbery, burglary, kidnapping, or theft,
- The defendant caused stupor or loss of consciousness for any period of time by “impeding the normal breathing or circulation of the blood of a household member by applying pressure to the throat or neck or by obstructing the nose or mouth,” or
- The defendant used or threatened physical force to block access to a communication device to prevent the alleged victim from reporting the crime or seeking medical help.
DVHAN is a felony offense that carries up to 20 years in prison, is classified as a “violent offense,” and is designated as a “serious” offense for purposes of SC’s three-strikes law.
How Does a Domestic Violence Conviction Affect Your Gun Rights?
Under SC Code § 16-25-30, it is a crime for any person convicted of any domestic violence offense or any person who has a protection order that says the person cannot possess a firearm to “ship, transport, receive, or possess a firearm or ammunition,” and this includes:
- Misdemeanor DV convictions,
- Equivalent domestic violence convictions from another state, and
- Protection orders from other states as well as SC family courts.
A pardon will restore your right to own a firearm or to get a concealed weapon permit in SC.
Can a Domestic Violence Conviction be Expunged in SC?
Although most misdemeanor offenses in the magistrate or municipal court can be expunged after three years, you must wait five years before you can expunge a DV 3rd conviction in SC.
A domestic violence second-degree conviction can only be expunged if the person was sentenced under the Youthful Offender Act (YOA). More serious DV offenses cannot be expunged.
This only applies to a third-degree domestic violence conviction, and more serious domestic violence offenses cannot be expunged.
It is important to note that even if a DV 3rd charge is expunged, a person is still very likely to receive a “denial” on a background check when trying to purchase a firearm.
Questions About Domestic Violence Charges in SC?
If you or someone you know has been charged with domestic violence in SC an experienced domestic violence lawyer may be able to help.
We have obtained favorable outcomes including, but not limited to, dismissals, pretrial diversion or acquittals at trial in hundreds of criminal cases.
Call our office today at 843-853-3310 or use this form to email us through our website and let’s see if we can help.