Criminal Domestic Violence

It is a criminal offense in South Carolina to cause physical harm or injury to another “household member”  or even to attempt to cause physical harm or injury. It is fairly common to see a criminal charge of domestic violence occur when the parties are divorcing or separating. A "household member" is fairly loosely defined and can be a spouse; a former spouse; someone you have a child with; or someone you live with or even someone you used to live with regardless of sex. Typically you will see this referred to as a "CDV". The law defines four different classes of domestic violence: High and Aggravated; 3rd Degree; 2nd Degree and 1st Degree.

South Carolina Code of Laws on Domestic Violence

High and Aggravated CDV

High and Aggravated CDV is the most serious type of criminal domestic violence charge in South Carolina. In addition to a showing of harm or the threat of harm to a household member, the prosecutor has to show that the harm occured under one of the three following scenarios:

  1. The harm was caused under circumstances manifesting extreme indifference to the value of human life and the victim suffers some type of great bodily injury;
  2. The harm was under circumstances manifesting extreme indifference to the value of human life. Here. the victim does not have to sustain a physical injury but the victim reasonably feared great bodily injury or death; or
  3. There was a violation of an existing order of protection while committing 1st degree criminal domestic violence.

High and Aggravated CDV is a felony and you can be sentenced to up to twenty years in jail.

1st Degree Domestic Violence

First Degree Criminal Domestic Violence is one step lesser in degree than a High and Aggravated charge in South Carolina. In addition to a showing of harm or the threat of harm to a household member, the prosecutor has to show that the harm occured under one of the five following scenarios:

  • There was an injury that caused a substantial risk of death or which caused serious, permanent disfigurement or protracted loss or impairment of the function of a body member or organ;
  • There was a Violation of a Protection Order AND any other CDV 2nd factor;
  • You have two or more convictions of domestic violence in the past 10 years;
  • There was the use of a firearm in any manner; or
  • During the commission of domestic violence 2nd degree a minor child was present; the victim was pregnant; it occurred during a robbery, burglary, kidnapping, or theft; the victim’s breathing was restriced in some manner; or you physically stopped the victim from calling 911.

1st degree CDV is a felony and you can be sentenced to up to ten years in jail.

2nd Degree Domestic Violence

2nd Degree CDV is one step lesser in degree than 1st degree charge in South Carolina. In addition to a showing of harm or the threat of harm to a household member, the prosecutor has to show that the harm occured under one of the five following scenarios:

  • There was or likely to have been what is defined as a "moderate bodily injury". This includes prolonged loss of consciousness, temporary or moderate disfigurement, temporary loss of the function of a body member requiring medical attention using anesthesia, or a fracture or dislocation. This does not include the presence of scratches, cuts, bruises, burns, or other minor injuries that do not require extensive medical care;
  • Violation of a protection order;
  • A prior conviction for CDV in the last 10 years;
  • The presence of a minor;
  • You knew or should have known that the victim was pregnant;
  • The CDV is committed during a robbery, burglary, kidnapping, or theft;
  • The victim’s breathing or air flow is affected; or
  • You physically stopped the victim from calling 911.

2nd degree CDV is a misdemeanor and you must be fined not less than 2,500.00 nor more than 5,000.00 or imprisoned for not more than three years, or both.

Third Degree Domestic Violence

3rd Degree is the lowest criminal domestic violence charge in South Carolina. The prosecutor only has to show that you caused physical harm or injury to another household member or to offer or attempt to cause physical harm or injury to a household member with apparent present ability to reasonably create imminent fear. This is a fairly low burden of proof. It is prosecuted in summary court as a misdemeanor violation.

For a 3rd degree DV violation you can be fined between $1,000 and $2,000, jailed up to 90 days, or both depending on the severity of the violation.

Defenses to a CDV Charge

The other party is not a houshold member.

A "household member" is defined as a spouse; a former spouse; someone you have a child with; or someone you live with or someone you used to live with regardless of sex. If they do not meet this definition, then you may be able to have the charge reduced.

You were not the primary aggressor.

The police are "supposed" to fairly evaluate each occurance separately in order to determine who was the primary aggressor. If you were not the primary aggressor, you are not "supposed" to be arrested. Sometimes, due to the conflicting stories, the officer will simply charge the party that did not call 911 first or simply the man that is involved in the altercation.

A reduction in the charge.

For an enhanced CDV violation, the prosecutor has to show that one of the required elements occurred. If that cannot be shown, then you would be entitled to a reduction.

Pretrial Intervention.

If you have a clean record, you may be eligible for pretrial intervention and have the arrest expunged upon completion.

The other party refuses to testify.

Unfortunately, in South Carolina there is a "no drop" policy for a CDV charge. Even if the other party wants to drop the charges, they can be required to come to court and testify.



NOTICE: ONLY AN ATTORNEY IN YOUR STATE CAN GIVE YOU LEGAL ADVICE

Divorce and Criminal Domestic Violence

What happens if we are divorcing and I am charged with domestic violence? In South Carolina, you have to be living separate and apart to file for a no fault divorce. That means that one party has to move out of the house. If you refuse to move out, the other party may instigate an altercation whereby you are arrested for domestic violence. That means you will be under a no contact order and cannot return to the home. If child custody is an issue, the arrest could also be used to try and show that you are an unfit parent. 

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