A Guide to Domestic Violence Charges in SC

Domestic violence charges in SC can lead to substantial prison sentences and a loss of your right to own a firearm or a concealed weapon permit (CWP).

What is domestic violence and what are the consequences of a conviction? Below, we will discuss:

  • How domestic violence is defined in SC,
  • The degrees of domestic violence charges,
  • Important definitions in SC domestic violence laws,
  • The potential penalties for a domestic violence conviction,
  • How a domestic violence conviction affects your right to own a firearm, and
  • When a domestic violence conviction can be expunged in SC.

What are Domestic Violence Charges in SC?

There are four “levels” of domestic violence (DV) charges in SC, with the potential penalties increasing based on the severity of the offense. These include:

  • DV 3rd degree,
  • DV 2nd degree,
  • DV 1st degree, and
  • DVHAN (domestic violence of a high and aggravated nature).

Domestic Violence Third Degree Charges

SC Code Section 16-25-20(A) defines domestic violence as:

  1. Causing “physical harm or injury to a person’s own household member,” or
  2. Offering or attempting “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.”

If these basic elements are met – either causing actual harm to a household member or threatening to harm a household member, then a person can be convicted of 3rd degree domestic violence.

Each “degree” of DV after third degree requires proof of additional elements or “aggravating factors.”

Domestic Violence Second Degree Charges

2nd degree domestic violence requires proof of 3rd degree DV and one of the following aggravating factors found in SC Code Section 16-25-20(C):

(1) moderate bodily injury to the person’s own household member results or the act is accomplished by means likely to result in moderate bodily injury to the person’s own household member;

(2) the person violates a protection order and in the process of violating the order commits domestic violence in the third degree;

(3) the person has one prior conviction for domestic violence in the past ten years from the current offense; or

(4) in the process of committing domestic violence in the third degree one of the following also results:

(a) the offense is committed in the presence of, or while being perceived by, a minor;

(b) the offense is committed against a person known, or who reasonably should have been known, by the offender to be pregnant;

(c) the offense is committed during the commission of a robbery, burglary, kidnapping, or theft;

(d) the offense is committed by impeding the victim’s breathing or air flow; or

(e) the offense is committed using physical force or the threatened use of force against another to block that person’s access to any cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:

(i) the report of any criminal offense, bodily injury, or property damage to a law enforcement agency; or

(ii) a request for an ambulance or emergency medical assistance to any law enforcement agency or emergency medical provider.

Domestic Violence First Degree Charges

1st degree domestic violence requires proof of 3rd degree DV and one of the following aggravating factors found in SC Code Section 16-25-20(B):

(1) great bodily injury to the person’s own household member results or the act is accomplished by means likely to result in great bodily injury to the person’s own household member;

(2) the person violates a protection order and in the process of violating the order commits domestic violence in the second degree;

(3) has two or more prior convictions of domestic violence within ten years of the current offense;

(4) the person uses a firearm in any manner while violating the provisions of subsection (A); or

(5) in the process of committing domestic violence in the second degree one of the following also results:

(a) the offense is committed in the presence of, or while being perceived by a minor;

(b) the offense is committed against a person known, or who reasonably should have been known, by the offender to be pregnant;

(c) the offense is committed during the commission of a robbery, burglary, kidnapping, or theft;

(d) the offense is committed by impeding the victim’s breathing or air flow; or

(e) the offense is committed using physical force or the threatened use of force against another to block that person’s access to any cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:

(i) the report of any criminal offense, bodily injury, or property damage to a law enforcement agency; or

(ii) a request for an ambulance or emergency medical assistance to any law enforcement agency or emergency medical provider.

Domestic Violence of a High and Aggravated Nature Charges

Domestic violence of a high and aggravated nature (DVHAN) requires proof of 3rd degree DV and one of the aggravating factors found in SC Code Section 16-25-65 – the person:

(1) commits the offense under circumstances manifesting extreme indifference to the value of human life and great bodily injury to the victim results;

(2) commits the offense, with or without an accompanying battery and under circumstances manifesting extreme indifference to the value of human life, and would reasonably cause a person to fear imminent great bodily injury or death; or

(3) violates a protection order and, in the process of violating the order, commits domestic violence in the first degree.

“Circumstances manifesting extreme indifference to the value of human life” can include:

(1) using a deadly weapon;

(2) knowingly and intentionally 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 of a household member and thereby causing stupor or loss of consciousness for any period of time;

(3) committing the offense in the presence of a minor;

(4) committing the offense against a person he knew, or should have known, to be pregnant;

(5) committing the offense during the commission of a robbery, burglary, kidnapping, or theft; or

(6) using physical force against another to block that person’s access to any cell phone, telephone, or electronic communication device with the purpose of preventing, obstructing, or interfering with:

(a) the report of any criminal offense, bodily injury, or property damage to a law enforcement agency; or

(b) a request for an ambulance or emergency medical assistance to any law enforcement agency or emergency medical provider.

SC Domestic Violence Law Definitions

There are several important definitions found in SC Code Section 16-25-10, including:

Who is a “Household Member?”

SC’s domestic violence law defines “household member” as 1) a spouse, 2) a former spouse, 3) persons who have a child in common, or 4) a male and female who are cohabiting or formerly have cohabited.

Note that the “male and female” language above was declared unconstitutional by the SC Supreme Court in 2017 in Doe v. State because it violates the Equal Protection Clause as to same sex couples – SC’s domestic violence laws now apply equally to same sex and opposite sex couples.

What is “Great Bodily Injury?”

Great bodily injury, which is an element of 1st degree DV and DVHAN, “means 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.”

What is “Moderate Bodily Injury?”

Moderate bodily injury, an element of 2nd degree DV, means:

…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. Moderate bodily injury does not include one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.

What is a “Deadly Weapon?”

A “deadly weapon,” which is one element of “circumstances manifesting extreme indifference to the value of human life,” could mean “any pistol, dirk, slingshot, metal knuckles, razor, or other instrument which can be used to inflict deadly force.”

What is a “Firearm?”

A firearm refers to any “pistol, revolver, rifle, shotgun, machine gun, submachine gun, or an assault rifle which is 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).”

What is a “Protection Order?”

A protection order could refer to “any order of protection, restraining order, condition of bond, or any other similar order issued in this State or another state or foreign jurisdiction for the purpose of protecting a household member.”

What is a “Prior Conviction of Domestic Violence?”

For purposes of SC domestic violence law, a prior conviction doesn’t necessarily mean a prior conviction for DV in SC.

It could mean a “conviction of any crime, in any state, containing among its elements those enumerated in, or substantially similar to those enumerated in, Section 16-25-20(A) that is committed against a household member as defined in item (3) within the ten years prior to the incident date of the current offense.”

Penalties for Domestic Violence Charges in SC

The potential penalties for domestic violence charges in SC increase based on the severity of the offense and could range from PTI (pretrial intervention), anger management counseling, or a fine for DV 3rd degree to up to 20 years in prison for a DVHAN conviction:

Offense Jail Time Felony or Misdemeanor Fine
DVHAN Up to 20 years Felony N/A
DV 1st degree Up to ten years Felony N/A
DV 2nd degree Up to three years Misdemeanor $2500 – $5000
DV 3rd degree Up to 90 days Misdemeanor $1000 – $2500

 

Can I Own a Firearm if I am Convicted of DV?

If you have a conviction for domestic violence, both federal and SC state law prohibits you from owning a firearm.

Under SC State Law:

SC Code Section 16-25-30 prohibits possession of a firearm if:

  • You have been convicted of DVHAN (for life),
  • You have been convicted of domestic violence 1st degree (ten years),
  • You have been convicted of domestic violence 2nd degree “and the court made specific findings and concluded that the person caused moderate bodily injury to their own household member” (three years),
  • You are subject to a valid order of protection issued by the family court “and the family court judge at the time of the hearing made specific findings of physical harm, bodily injury, assault, or that the person offered or attempted to cause physical harm or injury to a person’s own household member with apparent and present ability under the circumstances reasonably creating fear of imminent peril and the family court judge ordered that the person is prohibited..”

Under Federal Law:

SC’s prohibitions (and SC’s tiered system of gun prohibition) are meaningless, however, because any domestic violence conviction will prohibit gun ownership under federal law.

18 USC Section 922(d)(9) prohibits the possession of a firearm by any person who “has been convicted in any court of a misdemeanor crime of domestic violence.”

For purposes of federal law, this includes convictions for other crimes like assault and battery where the alleged victim was a household member – the court will look to the underlying facts of the conviction to determine whether it was a conviction for domestic violence.

This means that a plea offer to plead guilty to assault and battery instead of domestic violence will not preserve your right to gun ownership under federal law.

Can a DV Conviction Ever be Expunged in SC?

A third degree domestic violence conviction can be expunged in SC after five years if there are no other convictions during the five year period.

2nd degree DV could be expunged if the offender received a YOA sentence, and 1st degree DV or DVHAN cannot be expunged. You could seek a pardon, however, which would restore your civil rights including your right to own a firearm or a concealed weapon permit (CWP).

Domestic Violence Defense Lawyers in Conway, SC

Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including drug crimes like drug possession, possession with intent to distribute, drug distribution, and drug trafficking.

If you have been charged with a crime or believe you are under investigation in SC, contact criminal defense Lawyer Johnny Gardner today for a free consultation to find out how we can help.