SC law doesn’t ad­dress same-sex do­mes­tic vi­o­lence

The Herald (Rock Hill) - - Front Page - BY AN­DREW DYS [email protected]­al­don­

York County pros­e­cu­tors are weigh­ing whether to seek in­dict­ments in do­mes­tic vi­o­lence cases in­volv­ing same-sex cou­ples, af­ter sev­eral cases have been tossed by judges.

Pros­e­cu­tors say South Carolina’s law, which de­fines a cou­ple for do­mes­tic vi­o­lence charges as only a “man and a woman,” was ruled un­con­sti­tu­tional by the S.C. Supreme Court in 2017. That court rul­ing was up­held in an opin­ion by the state at­tor­ney gen­eral.

The at­tor­ney gen­eral is­sued an opin­ion ear­lier this year, say­ing pros­e­cu­tors could go for­ward with crim­i­nal pros­e­cu­tion of same-sex do­mes­tic vi­o­lence cases.

York County pros­e­cu­tors may con­tinue to seek charges in same-sex do­mes­tic vi­o­lence cases, even though judges have dis­missed many cases.

Un­der South Carolina law, pros­e­cu­tors have the right to seek a “di­rect in­dict­ment” against a de­fen­dant, even if a mag­is­trate has ruled that there is not prob­a­ble cause. Pros­e­cu­tors can sub­mit the case to the York County grand jury for po­ten­tial in­dict­ments, and it can go for­ward if an in­dict­ment is is­sued.

An in­dict­ment is re­quired for a de­fen­dant to stand trial.

York County pros­e­cu­tors are con­sid­er­ing seek­ing di­rect in­dict­ments in the dis­missed cases af­ter the ev­i­dence is re­viewed, 16th Cir­cuit As­sis­tant Solic­i­tor Jenny Desch said.

Desch said she re­viewed the de­ci­sions with 16th Cir­cuit Solic­i­tor Kevin Brack­ett.

“We will con­tinue to use our dis­cre­tion to pur­sue charges through the grand jury when ap­pro­pri­ate,” said Desch, team leader of the solic­i­tor’s of­fice do­mes­tic vi­o­lence unit.

On Tues­day, two such cases in­volv­ing same-sex de­fen­dants in a co-habi­ta­tion re­la­tion­ship were dis­missed in a pre­lim­i­nary hear­ing by a York County mag­is­trate judge for lack of prob­a­ble cause, be­cause of the law that says do­mes­tic vi­o­lence is be­tween a


man and a woman.

At least six cases in re­cent weeks have been dis­missed at pre­lim­i­nary hear­ing on the same ba­sis, Desch said.

The cases dis­missed at pre­lim­i­nary hear­ings in­volve same-sex cou­ples who are liv­ing to­gether but aren’t legally mar­ried.

In one hear­ing Tues­day, As­sis­tant York County Pub­lic de­fender Jeff Zuschke suc­cess­fully ar­gued to county Mag­is­trate Michael Scur­lock that the Supreme Court rul­ing on the S.C. law doesn’t ap­ply to crim­i­nal cases. The Supreme Court rul­ing was spe­cific to a pro­tec­tion or­der for Fam­ily Court, Zuschke ar­gued. And state law de­fines for do­mes­tic vi­o­lence crim­i­nal cases that it re­quires a “man and a woman,” he said.

“There is no ev­i­dence that this was a man and woman,” Zuschke said in court. “We are stuck with the lan­guage of the law.”

Scur­lock agreed and found no prob­a­ble cause for do­mes­tic vi­o­lence al­le­ga­tions to move for­ward. Scur­lock did find that there was prob­a­ble cause for the case to stand as an as­sault and bat­tery.

Desch and Brack­ett dis­agree with that rul­ing and pre­vi­ous sim­i­lar rul­ings made by mag­is­trates.

Le­gal pro­tec­tions for do­mes­tic vi­o­lence vic­tims are stronger than in as­sault cases, and po­ten­tial penal­ties are more se­vere, Desch and Brack­ett said.

Pros­e­cu­tors con­tinue to ad­vise po­lice to pur­sue do­mes­tic vi­o­lence charges if the case war­rants it.

“We have in­structed law en­force­ment to treat in­ti­mate-part­ner re­la­tion­ships equally across the board re­gard­less of who the cou­ple is,” Desch said.

All vic­tims should have the same le­gal pro­tec­tions un­der the law, Desch said.

“We agree with the Supreme Court and the at­tor­ney gen­eral, that the law should treat in­ti­mate part­ners equally,” Desch said af­ter court Tues­day.

Af­ter court, Zuschke said that if pros­e­cu­tors seek a di­rect in­dict­ment for do­mes­tic vi­o­lence in his cases, he would ask that a higher-court judge dis­miss the case.

“My ar­gu­ment will be the same, that there is not a vi­o­la­tion of the law as writ­ten,” Zuschke said. “The law as writ­ten states that for a case to be do­mes­tic vi­o­lence in a crim­i­nal mat­ter, the ac­tion must be be­tween a man and a woman.”

In 2017, York County as­sis­tant solic­i­tor Les­lie Robin­son suc­cess­fully pros­e­cuted the first same sex do­mes­tic vi­o­lence case in South Carolina, but that cou­ple was legally mar­ried, Robin­son said.

In York County in a ground­break­ing rul­ing in 2017, a Fam­ily Court judge ruled that com­mon­law same sex cou­ples must be con­sid­ered mar­ried un­der state law.

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