Understanding the Legal Process
What is the legal definition of abuse in South Carolina?
This section defines abuse for the purposes of getting an order of protection.
South Carolina law defines abuse as when a "family or household member":
• Physically harms you or threatens to do so,
• Physically injures you,
• Assaults you, or
• Rapes you or commits another sexual criminal offense against you.*
A family or household member is defined as:
• A spouse or ex-spouse;
• Someone who you have a child in common with; or
• Someone of the opposite sex who you live(d) with.**
Note: If the acts of the abuser do not fit in this definition, or if you don’t have the required relationship with the abuser, you may still be eligible for a restraining order against stalking or harassment.
* SC Code § 20-4-20(a)
** SC Code § 20-4-20(b) (Women’s Law)
The legal system is divided into two areas: civil law and criminal law. Family Courts govern civil law, Magistrate Courts and General Sessions Courts govern criminal law. One of the most confusing things about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases occurring at the same time as a result of the same violent act. You may want to pursue both civil and criminal actions for maximum protection. The major differences have to do with who takes the case to court and the reason for the case.
In a civil domestic violence action, you are asking the court to protect you from the person abusing you. You are not asking the court to send that person to jail for committing a crime. However, if the abuser violates the civil court order, he may be sent to jail for the violation. In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to. Orders of Protection in South Carolina that we refer to are a part of civil law and they are heard in Family Court.
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc. A criminal complaint involves your abuser being charged with a crime. In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not. It is the county/state who has brought the case against the abuser, not the victim. It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true. The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial. A criminal case is heard in Magistrate’s court or General Sessions. (Women’s Law.org)
Order of Protection vs Restraining Order
A restraining order can:
- Order the abuser not to abuse you, threaten you, or attempt communicate with you in any way.
Restraining orders are usually granted for a period of one year.
- An order of protection can:
- Order the abuser not to abuse you or threaten to abuse you;
- Order the abuser not to communicate with you or try to communicate with you; and
- Order the abuser to stay away from any place you request including your school, home, child’s day care, or workplace.*
- Order all of the relief stated above;
- Award temporary custody and visitation rights of your children
- Order your abuser to pay temporary financial support for you and/or your child if you are married or s/he is the legal parent of the child;
- Grant temporary possession of your shared residence (even if the respondent owns the home or is the only one on the lease) only if the respondent has a legal duty to support you or your children (i.e., s/he is your spouse or child’s parent);
- Forbid the abuser from selling or getting rid of income, homes, or property you share;
- Order who will get temporary possession of the personal property of the parties;
- Order law enforcement to help you remove personal property from the home if the respondent will be staying in the home and you will be leaving it
Order of protections are temporary and usually in place for 6 months or 1 year.