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With the recent publicity connected to the National Football League, domestic violence has become a topic of much discussion. Many of these conversations deal with the cultural aspects of this type of violence, but there are also important legal issues surrounding criminal domestic violence statutes. For instance, what separates domestic violence from other assault and battery? Does a person have to have a physical injury to be a victim of criminal domestic violence? Can I be charged with criminal domestic violence against a person I do not live with?
South Carolina has attempted to answer these questions in detail. Section 16-25-20 of the South Carolina Code of Laws, which defines criminal domestic violence, states that is unlawful to “cause physical harm or injury to a person’s own household member” or “offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril”. Section 16-25-65, which defines aggravated criminal domestic violence, states that a person may be sentenced to harsher penalties if the assault and battery “involves the use of a deadly weapon or results in serious bodily injury” or if there is an “assault, with or without the accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death”. Finally, Section 16-25-10 defines a “household member” as a spouse, former spouse, a person who you have a child with, or someone who you are cohabitating with or have formerly cohabited with.
We will do a more detailed blog about more complicated issues surrounding criminal domestic violence statutes, but our clients are often surprised or confused by the following:
Question #1 I do not live with the person anymore, yet I was charged with criminal domestic violence. Can they do this?
Answer: Yes. South Carolina’s statute clearly gives the state the right to charge you with criminal domestic violence even if you no longer live with a person. This is true as long as you once lived with the person, the person is your spouse or a former spouse, or you share a child in common with the person.
Question #2 My partner and I got in a heated argument, but I never touched them. Can I still be charged with criminal domestic violence?
Answer: Yes. South Carolina defines criminal domestic violence in such a way that it includes assault as well as battery. Assault is defined as conduct which places another in reasonable fear of bodily harm. The State can use threatening conduct that does not end up in physical contact to support a criminal domestic violence charge as long as you had the present ability under the circumstances to act on those threats (thus creating “fear of imminent peril”).
Question #3 I did not start the altercation and merely defended myself. Am I guilty of CRIMINAL DOMESTIC VIOLENCE?
Answer: No. criminal domestic violence laws do not strip a person of their right to defend themselves in a fight. A person has a recognizable claim to self-defense if it can be shown the other person was the primary aggressor.
It is important to note that there is a substantial difference between being charged with criminal domestic violence and being convicted of criminal domestic violence. While the State may make an arrest, they also bear the burden of proving beyond a reasonable doubt that a crime was in fact committed. Hiring an experienced, capable attorney is important so whether there is adequate evidence of reasonable fear, imminent peril, or a person’s status as a household member can be properly investigated and challenged.