Could a domestic-violence case and protection-order contempt case proceed from the same incident?

Plain-English summary

A sheriff described a defendant facing a second-offense criminal domestic-violence charge in magistrate's court while the victim's attorney pursued a family-court contempt rule for violation of a protection order arising from the same incident. The Attorney General concluded that both proceedings could go forward without violating double jeopardy. He understood the family-court matter to seek contempt for improper contact after the order issued.

The opinion relied on a South Carolina Court of Appeals decision distinguishing contempt for disobeying a court order from a later criminal charge involving the same conduct. The court in that case applied the test asking whether each offense required proof of a fact the other did not. The AG also noted a distinct statutory restriction on sentencing someone under both the domestic-violence and protection-order-violation criminal provisions for the same offense. His answer concerned the prosecution and contempt combination presented, not a blanket approval of duplicate punishment under every provision.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say the family-court contempt case had to wait for the criminal case?
No. The letter said both could proceed from the same incident without a double-jeopardy violation under its analysis.

Why were the two proceedings treated differently?
The opinion relied on the distinction between contempt for disobeying a court order and a criminal charge with different elements.

Did the opinion allow two criminal sentences for the same offense?
No. It separately noted a statutory bar on sentencing under both of the specified criminal provisions for the same offense.

Background and statutory framework

The AG discussed the domestic-violence offense, protection-order enforcement, the Fifth Amendment double-jeopardy rule, and appellate reasoning on whether two proceedings arising from one act were legally distinct.

Citations and references

The opinion discussed State v. Warren and Blockburger v. United States in its double-jeopardy analysis.

Official title

Questioning whether a defendant charged with criminal domestic violence, second offense, in magistrate’s court and an attorney filing a rule to show caase for the violation of an order of the protection in family court with reference to the same incident, can go forward or is proceeding on both a violation of the defendant’s fifth amendment double jeopardy rights.

Requester

The Honorable Robert H. Benson, Sheriff, Chester County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-31-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05august-31-Benson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMA.sTER
ATTORNEY GENERAL

I

August 31, 2005

The Honorable Robert H. Benson
Sheriff, Chester County
P. 0. Drawer 727
Chester, South Carolina 29706
Dear Sheriff Benson:

In a letter to this office you referenced that a defendant has been charged with criminal domestic violence, second offense, in magistrate's court. In addition, the attorney of the victim associated with the CDV2nd case has filed a rule to show cause for the violation of an order of protection in family court with reference to the same incident. You have questioned whether both of these cases can go forward or is proceeding on both a violation of the defendant' s fifth amendment double jeopardy rights. 1 S.C. Code Ann.§ 16-25-20 provides for the criminal offense of criminal domestic violence. Pursuant to such provision,

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(ii

It is unlawful to: ( I) cause physical harm or injury to a person's own household member; or (2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.

Also included in such statute is the provision that
(E) A person who violates the terms and conditions of an order of protection issued in this State under Chapter 4, Title 20, the "Protection from Domestic Abuse Act", or a valid protection order related to domestic or family violence issued by a court of another state.. .is guilty of a misdemeanor.

'The Double Jeopardy Clause, the Fifth Amendment to the United States Constitution, provides that no person shall be " ...subject for the same offence to be twice put in jeopardy of life or limb."
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REMBERT c DENNIS BllllDINO • POST OmCE Box 11549 •

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COWMBIA,

s.c. 29211 - 1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-62!13

The Honorable Robert H. Benson
Page2
August 31, 2005
Therefore, the violation of an order of protection may be a separate criminal offense. 2 However, it is my understanding that in the situation you addressed in your letter, the victim's attorney is seeking a finding of contempt for violation of an order of protection which consistent with S.C. Code Ann.
§ 20-4-60 (b) may be punishable by up to one year in prison and/or a fine not to exceed fifteen hundred dollars. I assume that the contempt arises from a situation where there has been some type of improper contact with the victim by the defendant after the order of protection was issued. InStatev. Warren, 330 S.C. 584, 500S.E.2d128 (Ct. App. 1998), the State Court ofAppeals dealt with a situation where a family court restraining order had been issued which prohibited unsupervised contact between a child and her mother and stepfather. Because of subsequent allegations of contact, a rule to show cause was issued against the mother and stepfather for failure to comply with the family court order. Following a hearing, the father was found in contempt and sentenced. Subsequently, the father was tried and convicted of second degree criminal sexual conduct arising from the same incidence of contact with the victim. The father argued that his trial and conviction for the criminal offense constituted double jeopardy alleging that he had already been punished for the same offense in family court when he was found in contempt. In Blockburger v. United States, 284 U.S. 299, 304 (1932), the United States Supreme Court stated that The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. In Warren, the Court of Appeals stated: Applying the traditional Blockburger test, .. .it is clear the elements of the contempt offense are different from the elements of the charge of second degree criminal sexual conduct with a minor. Contempt results from the wilful disobedience of a court order... Clearly, the offenses are separate and distinct, and prosecution for both does not violate the Double Jeopardy charge. 3

2

Pursuant to S.C. Code Ann. § 16-25-20 (E) an individual convicted of criminal domestic violence and convicted of a violation of the terms and conditions of an order of protection, a misdemeanor offense, " ... must not be sentenced under both sections for the same offense." 3

Pursuant to S.C. Code Ann. § 16-3-655, for purposes of the case before the court
... the elements of second-degree criminal sexual conduct with a minor are as follows: (1) the actor engages in sexual battery, (2) with a victim who is at least fourteen years of age, but who is less (continued ... )

The Honorable Robert H. Benson
Page3
August 31, 2005

330 S.C. at 599. Accordingly, the Court of Appeals determined that the prosecution for second degree criminal sexual conduct with a minor, which followed a finding of contempt, did not violate the Double Jeopardy Clause.

I

While finding no double jeopardy violation, the Court of Appeals nevertheless reversed the defendant's conviction determining that the trial judge had erred with regard to the instructions provided the jury. That decision was appealed to the State Supreme Court where that Court reversed the decision of the Court of Appeals with regard to the jury instructions. The Supreme Court, however, did not review the double jeopardy question. Therefore, it appears that the Supreme Court's reversal of the decision by the Court of Appeals did not impact the finding by the Court of Appeals that there was no double jeopardy violation. As a result, that determination still stands. I would note that the decision in Warren is consistent with findings by other courts with regard to allegations ofa double jeopardy violation in similar circumstances. See State v. Grayhurst, 852 A.2d 491(R.I.2004); Ex parte Arenivas, 6 S.W.3d 631 (Ct.App. Texas 1999). Consistent with the above, a defendant may be prosecuted for criminal domestic violence, second offense, in magistrate's court and simultaneously charged with a violation of an order of protection in family court with reference to the same incident. In my opinion, there is no double jeopardy violation in such circumstances.

If there are any questions, please advise.

Clj'/q:/UJJ~
Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
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Assistant Deputy Attorney General

3(. .. continued)
than sixteen years of age, and (3) the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or who is older than the victim. 330 S.C. at 599.