An Extension of South Carolina’s Domestic Violence Protection
The domestic violence rate in the United States is staggering with nearly 10 million men and women affected by physical violence each year. South Carolina’s legislature enacted the Domestic Abuse Act in efforts to protect victims of domestic violence. This Act allows a victim to apply for an Order of Protection through which the Court affords said victim additional protection from the abuser. For example, while an Order of Protection is in place, the police can immediately arrest an abuser who comes around or contacts the victim and an abuser is prohibited from possessing a gun.
A recent South Carolina case, Doe v. State, highlighted the issue of who qualifies for this relief. In 2015, a Richland County woman applied for an Order of Protection after she was assaulted by her girlfriend. The Court denied her request for relief as she did not fit the definition of “Household Member” as outlined in South Carolina Code Section 16-25-10(3) or South Carolina Code Section 20-4-20(b). A household member is defined as either (a) a spouse; (b) a former spouse; (c) persons who have a child in common; or (d) a male and female who are cohabitating or formerly have cohabitated.
Although same-sex marriage has been recognized in South Carolina since the 2014 ruling in Bostic v. Rainey, the Richland County woman and her girlfriend were not married. They had, however, cohabitated.
As a result of the Court’s denial, the Richland County woman filed suit and challenged the constitutionality of the provision. Essentially, she argued the section discriminated against unmarried, same-sex couples. Notably, the word “and” in the provision “male and female who are cohabitating or formerly have cohabited” limits the interpretation of this definition to heterosexual relationships.
In July of 2017, the South Carolina Supreme Court held that this statute (16-25-10(3)(d)) violated the equal protection clause and struck this part of the definition in its entirety. The first part of the statute remained in effect.
Instead of increasing protection as defined under the Domestic Abuse Act, striking this provision made the statute less inclusive. As a result, Orders of Protection were only available to people who were married, had been married or had a child in common. Therefore, unmarried cohabitating couples without children in common were afforded no coverage under the statute. This would have left a huge gap in protection as it has become increasingly common for couples to live together instead of or before marriage.
To prevent this vulnerability, the South Carolina Supreme Court stayed the decision, preventing the ruling from taking effect until further review. Upon rehearing in November, the Supreme Court reconsidered and found the provision unconstitutional as applied. This means the provision remains but can no longer be construed to deny protection to same-sex couples. Ultimately, this is a win for domestic violence victims and same-sex couples alike.
If you are involved in a domestic violence dispute or case, contact Bannister, Wyatt & Stalvey, LLC, today to schedule your consultation. Our experienced legal team will fight for your best possible protection and rights.
As an associate of Bannister, Wyatt and Stalvey, LLC, Elizabeth McCool brings experience to the firm in both family and real estate law. Prior to joining Bannister, Wyatt & Stalvey, LLC, Ms. McCool practiced real estate law from 2014 to 2017 at The Law Offices of Susan B. Covington and practiced family law with the Carolina Law Group from 2013-14.
Ms. McCool graduated magna cum laude from the University of South Carolina Honors College with a Bachelor of Science in Business Administration. She continued her education receiving an MBA from Gardner Webb University and law degree from the University of South Carolina. During her time at USC, she served as Production Editor of the Real Property, Trust & Estate Law Journal and was a member of Phi Delta Phi Legal Honor Society.
A native of Greer, South Carolina, Ms. McCool enjoys spending her free time on the golf course, sampling local cuisine, reading, or with her dog Howard