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S 447

Session 111 (1995-1996)

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S 0447 General Bill, By H.S. Stilwell, Bryan, Cork, Courtney, Hayes, Russell, J.V. Smith, Washington and Wilson A Bill to amend Chapter 3, Title 16, Code of Laws of South Carolina, 1976, by adding Article 17 so as to prohibit harassment and stalking, to provide definitions, to provide penalties, and to authorize temporary restraining orders; and to repeal Section 16-3-1070, relating to the crime of stalking. 02/02/95 Senate Introduced and read first time SJ-2 02/02/95 Senate Referred to Committee on Judiciary SJ-2



Be it enacted by the General Assembly of the State of SouthCarolina:

SECTION 1. Chapter 3, Title 16 of the 1976 Code is amendedby adding:

"Article 17
Harassment and Stalking

Section 16-3-1700. For the purpose of this article:

(A) `Harassment' means a pattern of intentional, substantial, andunreasonable intrusion into the private life of a targeted person thatcauses the person and would cause a reasonable person in hisposition to suffer mental distress. Harassment may include, but itnot limited to:

(1) following the targeted person as he travels;

(2) visual, physical, or verbal contact that is initiated,maintained, or repeated after a person has been provided notice thatthe contact is unwanted;

(3) surveillance of or the maintenance of a presence near thetargeted person's:

(a) residence;

(b) place of work;

(c) school; or

(d) another place regularly occupied by the targeted person;and

(4) vandalism and property damage.

Harassment does not include words or conduct that are protectedby the Constitution of this State or the United States.

(B) `Stalking' means a pattern of words or conduct that isintended to cause and does cause a targeted person and would causea reasonable person in the targeted person's position to fear:

(1) death of the person or a member of his family;

(2) assault upon the person or a member of his family;

(3) bodily injury to the person or a member of his family;

(4) criminal sexual contact on the person or a member of hisfamily;

(5) kidnapping of the person or a member of his family; or

(6) damage to the property of the person or a member of hisfamily.

Stalking does not include words or conduct that are protected bythe Constitution of this State or the United States.

(C) `Aggravated stalking' means stalking accompanied orfollowed by an act of violence.

(D) `Pattern' means two or more acts within a ninety-day period.

(E) `Family' means a spouse, child, parent, sibling, or a personwho regularly resides in the same household as the targeted person.

Section 16-3-1710. (A) A person who engages in harassment isguilty of a misdemeanor and, upon conviction, must be fined notmore than two hundred dollars, imprisoned not more than thirtydays, or both.

(B) A person convicted of harassment against a person withinseven years of a prior conviction of harassment or stalking of thatperson, or when an injunction or restraining order is in effectprohibiting this conduct, is guilty of a misdemeanor and, uponconviction, must be fined not more than one thousand dollars,imprisoned not more than one year, or both.

Section 16-3-1720. (A) A person who engages in stalking isguilty of a misdemeanor and, upon conviction, must be fined notmore than one thousand dollars, imprisoned not more than one year,or both.

(B) A person who engages in stalking when an injunction orrestraining order is in effect which prohibits this conduct is guiltyof a misdemeanor and, upon conviction, must be fined not morethan two thousand dollars, imprisoned not more than two years, orboth.

(C) A person who engages in stalking a person within sevenyears of a prior conviction of harassment against or stalking of thatperson is guilty of a felony and, upon conviction, must be fined notmore than five thousand dollars, imprisoned not more than fiveyears, or both.

Section 16-3-1730. (A) A person who engages in aggravatedstalking is guilty of a felony and, upon conviction, must be finednot more than five thousand dollars, imprisoned not more than fiveyears, or both.

(B) A person who engages in aggravated stalking when aninjunction or restraining order is in effect prohibiting this conduct isguilty of a felony and, upon conviction, must be fined not morethan seven thousand dollars, imprisoned not more than ten years, orboth.

(C) A person who engages in aggravated stalking of a personwithin seven years of a prior conviction of harassment against orstalking of that person is guilty of a felony and, upon conviction,must be fined not more than ten thousand dollars, imprisoned notmore than fifteen years, or both.

Section 16-3-1740. Before sentencing a person convicted ofstalking, the court may require the person to undergo a mentalhealth evaluation. If the court determines from the results of theevaluation that the person needs mental health treatment orcounseling, the court shall require him to undergo mental healthtreatment or counseling by a court-approved mental healthprofessional, mental health facility, or facility operated by the StateDepartment of Mental Health as a part of his sentence.

Section 16-3-1750. (A) Under this article, the magistrate's courtshall have jurisdiction over an action seeking a restraining orderagainst a person engaged in harassment or stalking.

(B) An action for a restraining order must be filed in the countyin which:

(1) the defendant resides when the action commences;

(2) the harassment or stalking occurred; or

(3) the plaintiff resides if the defendant is a nonresident ofthe state or cannot be found.

(C) A complaint and motion for a restraining order may be filedby any person. The complaint must:

(1) allege that the defendant is engaged in harassment orstalking and must state the time, place, and manner of the actscomplained of, and other facts and circumstances upon which reliefis sought;

(2) be verified; and

(3) inform the defendant of his right to retain counsel torepresent him at the hearing on the complaint.

(D) The magistrate's court shall provide forms to facilitate thepreparation and filing of a complaint, and motion for restrainingorder by a plaintiff not represented by counsel. The court also shallprovide forms to facilitate the preparation and filing of motions andaffidavits to proceed in forma pauperis.

Section 16-3-1760. (A) Within twenty-four hours after the filingof a complaint and motion seeking a restraining order under Section16-3-1750, the court, for good cause shown, may hold anemergency hearing and, if the plaintiff proves his allegation by apreponderance of the evidence, may issue a temporary restrainingorder without giving the defendant notice of the motion for theorder. A prima facie showing of immediate and present danger ofbodily injury, verified by supporting affidavits, constitutes goodcause.

(B) A temporary restraining order granted without notice mustbe served upon the defendant together with a copy of the complaintand a Rule to Show Cause why the order should not be extendedfor the full six-month period. The Rule to Show Cause shallprovide the date and time of the hearing for the Rule to ShowCause. The defendant must be served within five days before thehearing in the same manner required for service in circuit court.

(C) In cases not provided in subsection (A) of this provision, thecourt shall cause a copy of the complaint and motion to be servedupon the defendant at least five days before the hearing in the samemanner required for service in circuit court.

(D) The court shall hold a hearing on a motion for a restrainingorder within fifteen days of the filing of a complaint and motion,but not sooner than five days after service has been perfected uponthe defendant.

Section 16-3-1770. (A) A temporary restraining order grantedwithout notice must be endorsed with the date and hour of issuanceand entered of record with the magistrate's court.

(B) The terms of the restraining order shall protect the plaintiffand may include temporarily enjoining the defendant from:

(1) abusing, threatening to abuse, or molesting the plaintiff ormembers of the plaintiff's family;

(2) entering or attempting to enter the plaintiff's place ofresidence, employment, education, or other location; and

(3) communicating or attempting to communicate with theplaintiff in a way that would violate the provisions of this article.

(C) A restraining order issued pursuant to this articleconspicuously shall bear the following language: `Violation of thisorder is a criminal offense punishable by thirty days in jail, a fineof five hundred dollars, or both, in addition to ordinary contemptproceedings'.

Section 16-3-1780. (A) A temporary restraining order shallremain in effect until the hearing on the Rule to Show Cause whythe order should not be extended for the full six-month period. Thetemporary restraining order must be for a fixed period inaccordance with subsection (B) of this provision if the court findsthe defendant in default at the hearing.

(B) In cases not provided for in subsection (A) of this provision,a restraining order must be for a fixed period not to exceed sixmonths, but may be extended by court order on a motion by theplaintiff, showing good cause, with notice to the defendant. Thedefendant is entitled to a hearing on the extension of an orderissued pursuant to this subsection within thirty days of the dateupon which the order will expire.

(C) Notwithstanding subsection (B) of this provision, theprovisions included in a restraining order granting relief pursuant toSection 16-3-1770 dissolve six months following the issuance of theorder unless, prior to the expiration of this period, the court hascharged the defendant with the crime of harassment or stalking andhas scheduled a date for trial on the charge. If the trial has beenscheduled, relief granted pursuant to Section 16-3-1770 shall remainin effect beyond the six-month period only until the conclusion ofthe trial.

(D) The court may modify the terms of an order issued pursuantto this section.

Section 16-3-1790. The magistrate's court shall serve thedefendant with a certified copy of an order issued pursuant to thisarticle and provide a copy to the plaintiff and to the local lawenforcement agencies having jurisdiction over the area where theplaintiff resides. Service must be made without charge to theplaintiff.

Section 16-3-1800. Law enforcement officers shall arrest adefendant who is acting in violation of a restraining order afterservice and notice of the order have been provided. An arrestwarrant is not required.

Section 16-3-1810. (A) The primary responsibility of a lawenforcement officer when responding to a harassment or stalkingincident is to enforce the law and protect the complainant.

(B) The law enforcement officer shall notify the complainant ofthe right to initiate criminal proceedings and to seek a restrainingorder.

Section 16-3-1820. A person who reports an alleged harassmentor stalking, files a criminal complaint, files a complaint for arestraining order, or who participates in a judicial proceeding underthis article and who is acting in good faith is immune from criminaland civil liability that might otherwise result from these actions. Arebuttable presumption exists that the person was acting in goodfaith.

Section 16-3-1830. A proceeding commenced under this article isin addition to other civil and criminal remedies."

SECTION 2. Section 16-3-1070 of the 1976 Code is repealed.

SECTION 3. This act takes effect upon approval by theGovernor.

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