Bill Text: SC S0003 | 2015-2016 | 121st General Assembly | Introduced
Bill Title: Criminal Domestic Violence Offenses and Penalties
Spectrum: Slight Partisan Bill (Republican 6-2)
Status: (Passed) 2015-06-12 - Act No. 58 [S0003 Detail]
Download: South_Carolina-2015-S0003-Introduced.html
A BILL
TO AMEND SECTION 16-25-10 OF THE 1976 CODE, TO PROVIDE NECESSARY DEFINITIONS; TO AMEND SECTION 16-25-20 OF THE 1976 CODE, RELATING TO CRIMINAL DOMESTIC VIOLENCE OFFENSES AND PENALTIES, SO AS TO RESTRUCTURE THE CRIMINAL DOMESTIC VIOLENCE OFFENSES INTO DEGREES AND PROVIDE PENALTIES; TO AMEND SECTION 16-25-30, RELATING TO THE ILLEGAL POSSESSION OF A FIREARM BY A PERSON CONVICTED OF A DOMESTIC VIOLENCE OFFENSE, TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON CONVICTED OF A CRIMINAL DOMESTIC VIOLENCE OFFENSE OR A PERSON SUBJECT TO AN ORDER OF PROTECTION FOR DOMESTIC OR FAMILY VIOLENCE TO SHIP, TRANSPORT, OR RECEIVE A FIREARM OR AMMUNITION, AND TO PROVIDE NOTICE TO A PERSON TO WHOM THE STATUTE APPLIES; TO AMEND SECTION 16-25-65, RELATING TO CRIMINAL DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE, TO PROVIDE THAT THE COURT MUST ORDER PARTICIPATION IN A DOMESTIC VIOLENCE INTERVENTION PROGRAM AND ALLOW A RESTRICTION ON FIREARMS AND AMMUNITION AS A CONDITION OF BOND; AND TO AMEND CHAPTER 3, TITLE 16, RELATING TO OFFENSES AGAINST THE PERSON, BY ADDING ARTICLE 18, TO PROVIDE NECESSARY DEFINITIONS AND TO ESTABLISH A PROCEDURE FOR THE ISSUANCE OF PERMANENT AND EMERGENCY CIVIL NO-CONTACT ORDERS UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE FOR THE DURATION OF CIVIL NO-CONTACT ORDERS, AND TO PROVIDE A PENALTY FOR THE VIOLATION OF CIVIL NO-CONTACT ORDERS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-25-10 of the 1976 Code, as last amended by Act 166 of 2005, is further amended to read:
"Section 16-25-10. As used in this article:
(1) 'Household member' means:
(1)(a) a spouse;
(2)(b) a former spouse;
(3)(c) persons who have a child in common; or
(4)(d) a male and female who are cohabiting or formerly have cohabited.
(2) 'Great bodily injury' 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.
(3) 'Moderate bodily injury' means physical injury requiring treatment to an organ system of the body other than the skin, muscles, and connective tissues of the body, except when there is penetration of the skin, muscles, and connective tissues that requires surgical repair of a complex nature or when treatment of the injuries requires the use of regional or general anesthesia.
(4) 'Deadly weapon' means any article, instrument or substance which is likely to produce or used to produce death or great bodily harm including, but not limited to, a pistol, rifle, shotgun, knife, stiletto, sword, dagger, metal knuckles or fists.
(5) 'Protection order' means 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.
(6) 'Prior conviction of domestic violence' includes conviction of any crime in any state, containing among its elements those enumerated in Section 16-25-20 (A), that is committed against a household member as defined in Section 16-25-10 (1).
SECTION 2. Section 16-25-20 of the 1976 Code is amended to read:
"Section 16-25-20. (A) It is unlawful to:
(1) cause physical harm or injury to a person's own household member; or
(2) 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.
(B) Except as otherwise provided in this section, a person who violates the provisions of subsection (A) is guilty of commits the offense of criminal domestic violence in the first degree, and upon conviction, must be punished as follows if the person violates the provisions of subsection (A) and:
(1) for a first offense, the person is guilty of a misdemeanor and must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than thirty days. The court may suspend the imposition or execution of all or part of the fine conditioned upon the offender completing, to the satisfaction of the court, and, in accordance with the provisions of Section 16-25-20(H) Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense pursuant to the provisions of this subsection must be tried in summary court great bodily injury to their own household member results or great bodily injury to their own household member could have resulted; or
(2) for a second offense, the person is guilty of a misdemeanor and must be fined not less than two thousand five hundred dollars nor more than five thousand dollars and imprisoned not less than a mandatory minimum of thirty days nor more than one year. The court may suspend the imposition or execution of all or part of the sentence, except the thirty-day mandatory minimum sentence, conditioned upon the offender completing, to the satisfaction of the court, and in accordance with the provisions of Section 16-25-20(H) If a person is sentenced to a mandatory minimum of thirty days pursuant to the provisions of this subsection, the judge may provide that the sentence be served two days during the week or on weekends until the sentence is completed and is eligible for early release based on credits he is able to earn during the service of his sentence, including, but not limited to, good-time credits the person violates a protection order and in the process of violating the order commits domestic violence in the second degree; or
(3) for a third or subsequent offense, the person is guilty of a felony and must be imprisoned not less than a mandatory minimum of one year but not more than five years has two or more prior convictions of domestic violence within ten years of the current offense.
(4) A person who violates this subsection is guilty of a felony, and upon conviction must be imprisoned for not more than ten years.
(5) Domestic violence in the first degree is a lesser included offense of domestic violence of a high and aggravated nature, as defined in Section 16-25-65.
(C) For the purposes of subsections (A) and (B), a conviction within the previous ten years for a violation of subsection (A), Section 16-25-65, or a criminal domestic violence offense in another state which includes similar elements to the provisions of subsection (A) or Section 16-25-65, constitutes a prior offense. A conviction for a violation of a criminal domestic violence offense in another state does not constitute a prior offense if the offense is committed against a person other than a 'household member' as defined in Section 16-25-10.
(D) A person who violates the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the 'Protection from Domestic Abuse Act', or a valid protection order related to domestic or family violence issued by a court of another state, tribe, or territory is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days and fined not more than five hundred dollars. A person commits the offense of criminal domestic violence in the second degree if the person violates subsection (A) and:
(1) moderate bodily injury to their own household member results or moderate bodily injury to their own household member could have resulted; or
(2) the person violates a protection order and in the process of violating the order commits domestic violence in the third degree; or
(3) the person has one prior conviction for domestic violence in the past ten years.
(4) A person who violates this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than two thousand five hundred dollars nor more than five thousand dollars, or imprisoned for not more than three years or both.
(5) Domestic violence in the second degree is a lesser-included offense of domestic violence in the first degree, as defined in subsection (A) and domestic violence of a high and aggravated nature, as defined in Section 16-25-65.
(ED) Unless the complaint is voluntarily dismissed or the charge is dropped prior to the scheduled trial date, a person charged with a violation provided in this chapter must appear before a judge for disposition of the case A person commits the offense of domestic violence in the third degree if the person violates subsection (A).
(1) A person who violates this subsection is guilty of a misdemeanor and must not be fined less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than thirty days or both.
(2) The court may suspend the imposition or execution of all or part of the fine conditioned upon the offender completing, to the satisfaction of the court, and, in addition, the court, in accordance with the provisions of Section 16-25-20(G), a program designed to treat batters. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense pursuant to the provisions of this subsection must be tried in summary court.
(3) Domestic violence in the third degree is a lesser-included offense of domestic violence in the second degree, as defined in subsection (C), domestic violence in the first degree, as defined in subsection (A), and domestic violence of a high and aggravated nature, as defined in Section 16-25-65.
(FE) When a person is convicted of a violation of Section 16-25-65 or sentenced pursuant to subsection (C), the court may suspend execution of all or part of the sentence, except for the mandatory minimum sentence, and place the offender on probation, conditioned upon:
(1) the offender completing offender's mandatory completion, to the satisfaction of the court, a of a domestic violence intervention program designed to treat batterers;
(2) fulfillment of all the obligations arising under court order pursuant to this section and Section 16-25-65; and
(3) other reasonable terms and conditions of probation as the court may determine necessary to ensure the protection of the victim.
(GF) In determining whether or not to suspend the imposition or execution of all or part of a sentence as provided in this section, the court must consider the nature and severity of the offense, the number of times the offender has repeated the offense, and the best interests and safety of the victim.
(G) An offender who participates in a batterer treatment domestic violence intervention program pursuant to this section, must shall participate in a program offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must shall pay a reasonable fee for participation in the treatment program but no person may be denied treatment participation due to inability to pay. If the offender suffers from a substance abuse problem or mental health concern, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment coordinated through the Department of Alcohol and Other Drug Abuse Services with the local alcohol and drug treatment authorities pursuant to Section 61-12-20 or Department of Mental Health or Veteran's Hospital, respectively. The offender must shall pay a reasonable fee for participation in the substance abuse treatment or mental health program, if required, but no person may be denied treatment participation due to inability to pay.
SECTION 3. Section 16-25-30 of the 1976 Code is amended to read:
"Section 16-25-30. (A) It is unlawful for any person who has been convicted of a violation of Section 16-25-20 or 16-25-65, or who is subject to an order of protection pursuant to Chapter 4, Title 20, or a valid order related to domestic or family violence issued by a court of another state, tribe, or territory to ship, transport, possess, or receive a firearm or ammunition, to possess a firearm or carry a concealed weapon.
(B) Whoever is found guilty of violating the provisions of this Section shall be imprisoned for not less than one year nor more than five years and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(C) A person shall not be considered to have been convicted of domestic violence for purposes of this Section unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and in the case of a prosecution for an offense described in this Section for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. A person shall not be considered convicted of Section 16-25-20 or 16-25-65 for the purposes of this Section if the conviction has been expunged, set aside, or is an offense for which the person has been pardoned or had civil rights restored unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, possess, or receive firearms.
(D) At the time a person is convicted of violating the provisions of Section 16-25-20 or 16-25-65, or upon the issuance of an order of protection, the court must deliver to the person a written form that conspicuously bears the following language: 'Pursuant to the provisions of Section 16-25-30 and 18 U.S.C. Section 922, it is unlawful for a person convicted of a violation of Section 16-25-20 or 16-25-65, or a person who is subject to an order of protection as described in Section 16-25-30(A), to ship, transport, possess, or receive a firearm or ammunition.'
(E) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of domestic violence shall not apply to any person who has not been convicted of domestic violence for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence
(F) For the provisions of this Section, "firearm" means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or 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.
SECTION 4. Section 16-25-65 of the 1976 Code is amended to read:
"Section 16-25-65. (A) A person who violates Section 16-25-20(A) is guilty of the offense of criminal domestic violence of a high and aggravated nature when one of the following occurs. The person:
(1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; commits the offense under circumstances manifesting extreme indifference to the value of human life and great bodily injury to the victim results; or
(2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death. 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.
(B) A person who violates subsection (A) is guilty of a felony and, upon conviction, must be imprisoned not less than a mandatory minimum of one year nor more than ten years. The court may suspend the imposition or execution of all or part of the sentence, except the one-year mandatory minimum sentence, and place the offender on probation conditioned upon the offender completing, to the satisfaction of the court, a program designed to treat batterers offered through a government agency, nonprofit organization, or private provider approved by the Department of Social Services. The offender must pay a reasonable fee for participation in the treatment program, but no person may be denied treatment due to inability to pay. If the offender suffers from a substance abuse problem, the judge may order, or the batterer treatment program may refer, the offender to supplemental treatment coordinated through the Department of Alcohol and Other Drug Abuse Services with the local alcohol and drug treatment authorities pursuant to Section 61-12-20. The offender must pay a reasonable fee for participation in the substance abuse treatment program, but no person may be denied treatment due to inability to pay for not more than twenty years.
(C) The provisions of subsection (A) create a statutory offense of criminal domestic violence of a high and aggravated nature and must not be construed to codify the common law crime of assault and battery of a high and aggravated nature.
(D) Circumstances manifesting extreme indifference to the value of human life include, but are not limited to, the following:
(1) using a deadly weapon;
(2)knowingly 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;
(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.
(E) Notwithstanding any other provision of law, the judge may provide, as a condition of bond, that an offender who violates the provisions of this section may not ship, transport, possess, or receive a firearm or ammunition while the offender is under bond."
SECTION 5. Chapter 3, Title 16 of the 1976 Code is amended by adding:
Section 16-3-1900. For purposes of this article:
(1) 'Complainant' means a victim of a criminal offense that occurred in this State, a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State, or a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(2) 'Conviction' means a conviction, adjudication of delinquency, guilty plea, nolo contendere plea, or forfeiture of bail.
(3) 'Criminal offense' means an offense against the person of an individual when physical or psychological harm occurs, including both common law and statutory offenses contained in Sections 16-3-1700, 16-3-1710, 16-3-1720, 16-3-1730, 16-25-20, 16-25-30, and 23-3-430; criminal sexual conduct offenses plead down to assault and battery of a high and aggravated nature; criminal domestic violence offenses plead down to assault and battery or assault and battery of a high and aggravated nature; and the common law offense of attempt, punishable pursuant to Section 16-1-80.
(4) 'Family' means a spouse, child, parent, sibling, or a person who regularly resides in the same household.
(5) 'Respondent' means a person who was convicted of a criminal offense for which the victim was the subject of the crime or the witness assisted the prosecuting entity in prosecuting the criminal offense.
(6) 'Victim' means:
(a) a person who suffers direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a criminal offense; or
(b) the spouse, parent, child, or lawful representative of a victim who is deceased, a minor, incompetent, or physically or psychologically incapacitated.
'Victim' does not include a person who is the subject of an investigation for, charged with, or has been convicted of the offense in question; a person, including a spouse, parent, child, or lawful representative, who is acting on behalf of a suspect, juvenile offender, or defendant, unless such actions are required by law; or a person who was imprisoned or engaged in an illegal act at the time of the offense.
(7) 'Witness' means a person who has been or is expected to be summoned to testify for the prosecution, or who by reason of having relevant information is subject to being called or likely to be called as a witness for the prosecution, whether or not any action or proceeding has been commenced.
Section 16-3-1910. (A) The circuit court and family court have jurisdiction over an action seeking a permanent civil no-contact order.
(B) To seek a permanent civil no-contact order, a person must:
(1) request the order in general sessions court or family court, as applicable, at the time the respondent is convicted for the criminal offense committed against the complainant; or
(2) file a complaint and motion in common pleas court in the county in which:
(a) the respondent resides when the action commences;
(b) the criminal offense occurred; or
(c) the complainant resides, if the respondent is a nonresident of the State or cannot be found.
(C) The following persons may seek a permanent civil no-contact order:
(1) a victim of a criminal offense that occurred in this State;
(2) a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State; or
(3) a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(D) A complaint must:
(1) state that the respondent was a person convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity;
(2) state when and where the conviction took place, and the name of the prosecuting entity and court;
(3) be verified; and
(4) inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.
(E) A complainant shall provide his address to the court and to any appropriate law enforcement agencies. The complainant's address must be kept under seal, omitted from all documents filed with the court, and is not subject to Freedom of Information Act requests pursuant to Section 30-4-10, et seq. The complainant may designate an alternative address to receive notice of motions or pleadings from the respondent.
(F) The circuit court must provide forms to facilitate the preparation and filing of a complaint and motion for a permanent civil no-contact order by a complainant not represented by counsel. The court must not charge a fee for filing a complaint and motion for a permanent civil no-contact order.
(G) An action for a permanent civil no-contact order requires that a separate summons be issued and served. The summons must require the respondent to answer within thirty days of the date of service. The summons must include the complaint for the permanent civil no-contact order and the notice of hearing as attachments. The appropriate sheriff shall serve the summons and attachments by personal delivery in accordance with the South Carolina Rules of Civil Procedure. If the sheriff cannot with due diligence serve the respondent by personal delivery, the complainant may serve the respondent by publication in accordance with the South Carolina Rules of Civil Procedure.
(H) The court may enter a permanent civil no-contact order by default if the respondent was served in accordance with the provisions of this section and fails to answer as directed, or fails to appear on a subsequent appearance or hearing date agreed to by the parties or set by the court.
(I) The hearing on a permanent civil no-contact order may be done electronically via closed circuit television or through other electronic means when possible. If the respondent is confined in a Department of Corrections facility, the complainant may come to the Department of Probation, Parole and Pardon Services in Richland County to have the hearing held electronically via closed circuit television or through other electronic means.
(J) Upon a finding that the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable, the court may issue a permanent civil no-contact order. In determining whether to issue a permanent civil no-contact order, physical injury to the victim or witness is not required.
(K) The terms of a permanent civil no-contact order must protect the victim or witness and may include enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the victim, witness, or members of the victim or witness' family;
(2) entering or attempting to enter the victim or witness's place of residence, employment, education, or other location; and
(3) communicating or attempting to communicate with the victim, witness, or members of the victim or witness' family in a way that would violate the provisions of this section.
(L) A permanent civil no-contact order must conspicuously bear the following language: 'Violation of this order is a felony criminal offense punishable by up to five years in prison.'
(M)(1) A permanent civil no-contact order remains in effect for the life of the complainant. If a victim or witness is a minor at the time a permanent civil no-contact order is issued on the minor's behalf, the victim or witness, upon reaching the age of eighteen, may file a motion with the circuit court to have the permanent civil no-contact order removed.
(2) The court may modify the terms of a permanent civil no-contact order.
(N) Notwithstanding another provision of law, a permanent civil no-contact order is enforceable throughout this State.
(O) Law enforcement officers shall arrest a respondent who is acting in violation of a permanent civil no-contact order after service and notice of the order is provided. An arrest warrant is not required. A respondent who is in violation of a permanent civil no-contact order is guilty of a felony and, upon conviction, must be imprisoned up to five years.
(P) In proceedings for a permanent civil no-contact order or prosecutions for violation of a permanent civil no-contact order, the prior sexual activity and the reputation of the victim is inadmissible except when it would be admissible in a criminal prosecution as provided by law.
(Q) Permanent civil no-contact orders are protection orders for purposes of Section 20-4-320, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as long as all other criteria of Article 3, Chapter 4, Title 20 are met.
(R) The remedies provided by this section are not exclusive, but are additional to other remedies provided by law.
Section 16-3-1920. (A) The magistrates court has jurisdiction over an action seeking an emergency civil no-contact order.
(B) An action for an emergency civil no-contact order must be filed in the county in which:
(1) the respondent resides when the action commences;
(2) the criminal offense occurred; or
(3) the complainant resides, if the respondent is a nonresident of the State or cannot be found.
(C) A complaint and motion for an emergency civil no-contact order may be filed by:
(1) a victim of a criminal offense that occurred in this State;
(2) a competent adult who resides in this State on behalf of a minor child who is a victim of a criminal offense that occurred in this State; or
(3) a witness who assisted the prosecuting entity in the prosecution of a criminal offense that occurred in this State.
(D) The complaint must:
(1) state that the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity;
(2) state when and where the conviction took place, and the name of the prosecuting entity and court;
(3) be verified; and
(4) inform the respondent of his right to retain counsel to represent the respondent at the hearing on the complaint.
(E) A complainant shall provide his address to the court and to any appropriate law enforcement agencies. The complainant's address must be kept under seal, omitted from all documents filed with the court, and is not subject to Freedom of Information Act requests pursuant to Section 30-4-10, et seq. The complainant may designate an alternative address to receive notice of motions or pleadings from the respondent.
(F) The court must provide forms to facilitate the preparation and filing of a complaint and motion for an emergency civil no-contact order by a complainant not represented by counsel. The court must not charge a fee for filing a complaint and motion for an emergency civil no-contact order.
(G)(1) Except as provided in subsection (H), the court shall hold a hearing on an emergency civil no-contact order within fifteen days of the filing of a complaint and motion, but not sooner than five days after service has been perfected upon the respondent.
(2) The court shall serve a copy of the complaint and motion upon the respondent at least five days before the hearing in the same manner required for service as provided in the South Carolina Rules of Civil Procedure.
(3) The hearing may be done electronically via closed circuit television or through other electronic means when possible. If the respondent is confined in a Department of Corrections facility, the complainant may come to the Department of Probation, Parole and Pardon Services in Richland County to have the hearing held electronically via closed circuit television or through other electronic means.
(4) The court may issue an emergency civil no-contact order upon a finding that:
(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable; and
(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent civil no-contact order.
In determining whether to issue an emergency civil no-contact order, physical injury to the victim or witness is not required.
(H)(1) Within twenty-four hours after the filing of a complaint and motion seeking an emergency civil no-contact order, the court may hold an emergency hearing and issue an emergency civil no-contact order without giving the respondent notice of the motion for the order if:
(a) the respondent was convicted of a criminal offense for which the victim was the subject of the crime or for which the witness assisted the prosecuting entity, as applicable;
(b) a restraining order has expired, is set to expire, or is not available and the common pleas court is not in session for the complainant to obtain a permanent civil no-contact order;
(c) it clearly appears from specific facts shown by a verified complaint or affidavit that immediate injury, loss, or damage will result to the victim or witness before the respondent can be heard; and
(d) the complainant certifies to the court that one of the following has occurred:
(i) efforts have been made to serve the notice; or
(ii) there is good cause to grant the remedy because the harm that the remedy is intended to prevent would likely occur if the respondent were given prior notice of the complainant's efforts to obtain judicial relief.
In determining whether to issue an emergency civil no-contact order, physical injury to the victim or witness is not required.
(2) An emergency civil no-contact order granted without notice must be endorsed with the date and hour of issuance and entered of record with the magistrates court. The order must be served upon the respondent together with a copy of the complaint, motion, and a Rule to Show Cause why the order should not be extended until the hearing for a permanent civil no-contact order.
(I) The terms of an emergency civil no-contact order must protect the victim or witness and may include temporarily enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the victim, witness, or members of the victim or witness's family;
(2) entering or attempting to enter the victim or witness's place of residence, employment, education, or other location; and
(3) communicating or attempting to communicate with the victim, witness, or members of the victim or witness's family in a way that would violate the provisions of this section.
(J) An emergency civil no-contact order conspicuously must bear the following language: 'Violation of this order is a felony criminal offense punishable by up to five years in prison.'
(K) The court shall serve the respondent with a certified copy of the emergency civil no-contact order and provide a copy to the complainant and to the local law enforcement agencies having jurisdiction over the area where the victim or witness resides. Service must be made without charge to the complainant.
(L)(1) An emergency civil no-contact order remains in effect until a hearing on a permanent civil no-contact order. However, if a complainant does not seek a permanent civil no-contact order pursuant to Section 16-3-1910 within forty-five days of the issuance of an emergency civil no-contact order, the emergency civil no-contact order no longer remains in effect.
(2) The court may modify the terms of an emergency civil no-contact order.
(M) Notwithstanding another provision of law, an emergency civil no-contact order is enforceable throughout this State.
(N) Law enforcement officers shall arrest a respondent who is acting in violation of an emergency civil no-contact order after service and notice of the order is provided. An arrest warrant is not required. A respondent who is in violation of an emergency civil no-contact order is guilty of a felony and, upon conviction, must be imprisoned up to five years.
(O) In proceedings for an emergency civil no-contact order or prosecutions for violation of an emergency civil no-contact order, the prior sexual activity and the reputation of the victim is inadmissible except when it would be admissible in a criminal prosecution as provided by law.
(P) Emergency civil no-contact orders are protection orders for purposes of Section 20-4-320, the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as long as all other criteria of Article 3, Chapter 4, Title 20 are met.
(Q) The remedies provided by this section are not exclusive but are additional to other remedies provided by law."
SECTION 6. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 7. This act takes effect upon approval by the Governor.
