July 20, 1995
|TO:||Magistrates and Municipal Judges
|FROM:||Robert L. McCurdy, Staff Attorney
|RE:||Harassment, Stalking, and Aggravated Stalking|
Effective June 12, 1995, H.3459, R.147 (Act number not yet assigned) amends the Code of Laws of South Carolina by adding Article 17 to Chapter 3, Title 16, which prohibits Harassment, Stalking, and Aggravated Stalking. The Act repealed the former Stalking statute found at §16-3-1070.
The elements of the criminal offense of Harassment are found at §16-3-1700(A), and the penalties for Harassment are found at §16-3-1710. Please note that § 16-3-1710(A) provides a penalty for a first offense conviction for Harassment of a fine of not more than two hundred dollars, imprisonment for not more than thirty days, or both, and is therefore within the jurisdiction of magistrate and municipal courts. § 16-3-1710(B) provides enhanced penalties (general session court offenses) for subsequent convictions and convictions while a restraining order is in effect.
The elements of the criminal offense of Stalking are found at §16-3-1700(B), and the penalties for Stalking are found at §16-3-1720(A),(B), and (C). Please note that the offense of Stalking is entirely within general session court jurisdiction. The elements of Aggravated Stalking are found at §16-3-1700(C), and the penalties are found at § 16-3-1730(A)(B), and (C). That offense is also entirely within the jurisdiction of the court of general sessions.
This legislation allows any person to seek a restraining order against an individual who is also engaged in Harassment or Stalking. §16-3-1750(A) vests magistrates with jurisdiction over an action seeking a restraining order. This is a civil proceeding, so municipal courts are without jurisdiction to entertain an action for a restraining order. Therefore, the forms discussed below which are used to facilitate this procedure will not be provided to municipal judges. The legislation provides for both the issuance of a restraining order with prior notice of a hearing to the defendant, and the issuance of a temporary restraining order without notice to the defendant in an emergency situation. Both procedures are discussed below.
ISSUANCE OF ORDER WITH NOTICE OF HEARING
1. Insure that the party is filing in the proper county. Jurisdictional requirements are found at § 16-3-1750(B).
2. Collect normal filing fee as for a summons and complaint. However, § 16-3-1750(D) specifically provides for the filing of a motion and affidavit to proceed in forma pauperis (without payment of the filing fee due to indigence). See form MC-626.
3. The party must complete form MC-620, Complaint and Motion For Restraining Order. § 16-3-1750(C). The Complaint and Motion, along with a Summons, form MC-621, must be served upon the defendant at least five days before a hearing on the matter. The hearing must be held within fifteen days of the filing of the complaint and motion. § 16-3-1760(C) and (D).
4. At the hearing, the plaintiff must prove by a preponderance of the evidence that the defendant has been engaged in Harassment or Stalking. The magistrate should complete a Restraining Order, form MC-622, and indicate in the appropriate spot on the order whether the plaintiff has met the required burden of proof.
5. The possible terms of a restraining order issued pursuant to this Act are found at § 16-3-1770(B) and are listed on form MC-622. If the court determines that the order should be issued, the judge should simply check the terms that apply. A restraining order issued pursuant to this Act must be for a fixed period not to exceed six months. The order may be extended by the court upon notice to the defendant and good cause shown by the plaintiff at a hearing. Otherwise, the order dissolves six months after issuance. If the defendant is charged with harassment or stalking prior to the expiration of the order, it remains in effect until the conclusion of the trial. § 16-3-1780(C) and (D). A restraining order issued pursuant to this Act is enforceable statewide. § 16-3-1750(E).
6. A certified copy of the order must be served on the defendant. A copy must be provided to the plaintiff and to the local law enforcement agencies that have jurisdiction over the plaintiff. §16-3-1790. Any violation of an order is a criminal offense punishable by thirty days in jail, a five hundred dollar fine, or both. §16-3-1770(C).
ISSUANCE OF ORDER WITHOUT NOTICE
1. Follow steps one and two above.
2. The plaintiff has the right to request an emergency hearing and, for good cause shown, the court must hold a hearing on the motion without notice to the defendant within twenty-four hours of the filing of the motion. Such a request is made by plaintiff's filing form MC-623, Motion and Affidavit For Emergency Hearing. A prima facie showing of immediate and present danger constitutes good cause. §16-3-1760(A).
3. At the emergency hearing, the plaintiff must prove the allegations contained in the complaint by a preponderance of the evidence. If the plaintiff meets this burden, the court should complete form MC-624, Temporary Restraining Order. This order is temporary in nature and remains in effect only until a Rule to Show Cause hearing is held to determine why the order should not be extended to the full six month period, with notice of the hearing being given to the defendant.
4. A copy of the temporary restraining order, a copy of the complaint, and Rule to Show Cause, form MC-625, must be immediately served on the defendant. The Rule to Show Cause hearing must be held within five days of service on the defendant. §16-3-1760(B).
5. Again, the burden is on the plaintiff to prove the allegations in the complaint by a preponderance of the evidence. At the hearing, the magistrate should complete form MC-622, Restraining Order, by following the instructions provided in numbers four and five above. The service requirements explained in number six above should also be followed.
All forms discussed herein are attached for your reproduction and use. Should you have any questions concerning these matters, please contact this office.