Did a second degree domestic violence indictment qualify as a crime of moral turpitude for a South Carolina governor to suspend an officer?

Plain-English summary

In 2017, counsel to the South Carolina governor asked whether second degree domestic violence was a “crime of moral turpitude” under the state constitution's provision allowing the governor to suspend certain indicted officers. The Attorney General concluded that a court would most likely say yes. It considered the statute's household-member injury requirements, decisions from other jurisdictions, and South Carolina disciplinary decisions involving domestic violence.

The AG also reviewed the particular indictment described in the request, which alleged injury to a household member by striking her with a car door. It concluded that the indictment alleged a qualifying crime for the constitutional suspension question. The opinion expressly addressed only second degree domestic violence. It did not decide whether other domestic violence offenses or other crimes qualified, nor did it decide criminal guilt.

Currency note

This opinion was issued in 2017. 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

Q: Did the opinion say a conviction was required for the governor's suspension power?
A: No. The constitutional question concerned an indictment, and the AG analyzed the indictment described in the request.

Q: Had South Carolina's Supreme Court already settled this exact issue?
A: The request said it had not. The AG offered its prediction of how a court would rule.

Q: Did this answer cover every domestic violence charge?
A: No. The conclusion expressly limited itself to second degree domestic violence.

Background and statutory framework

The opinion applied Article VI, § 8 of the South Carolina Constitution to second degree domestic violence as described in Section 16-25-20(A) and the opinion's quoted subsection (C). It used the court's moral-turpitude standard, which focuses on a breach of duty to other people and society, in assessing the described indictment.

Citations and references

• The AG concluded that the indictment alleged a “crime of moral turpitude” for Article VI, § 8.
• The conclusion expressly excluded other offenses from its answer.

Official title

On crime of moral turpitude.

Requester

Thomas Limehouse, Legal Counsel, Office of the Governor.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-9-2017/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/03/Limehouse-T.-OS-10132-FINAL-Opinion-3-9-2017-01286319xD2C78-01289908xD2C78.pdf

Original opinion text

•South"

March 9,2017

Thomas Limehouse, Legal Counsel
Office of the Governor
State House

1100 Gervais Street

Columbia, SC 29201
Dear Mr. Limehouse:

You have requested our opinion as to whether the crime of domestic violence 2"^^ degree constitutes a "crime of moral turpitude" for purposes of the Governor's suspension power pursuant to Art. VI, § 8 of the State Constitution. By way of background, you note that "this question has not been squarely addressed by the Supreme Court of South Carolina." It is our

opinion that a court would most likely conclude that domestic violence 2"^ degree is a crime of moral turpitude. Law/Analysis

In Op. S.C. Att'v Gen.. 2015 WL 2148106 (April 24, 2015), we discussed the question of what constitutes a "crime of moral turpitude" at some length, stating as follows: Our Supreme Court has defined a crime of moral tuipitude as "an act of baseness, vileness, or depravity in the private and social duties that man owes to his fellow man or to society in general, contrary to the accepted and customaiy rule of right and duty between man and man." Smith v. Smith. 194 S.C. 247, 9 S.E.2d 584, 589(1940); also State v. Drakeford. 290 S.C. 338, 340, 350 S.E.2d 391, 392 (1986); State v. Morris. 289 S.C. 294, 296, 345 S.E.2d 477, 478 (1986); State v. Vates. 280 S.C. 29, 37, 310 S.E.2d 805, 810 0982). oven-uled by State v. Torrence. S.C.. 280 S.C. 29, 310 S.E.2d 805 (1982); State v. Horton. 271 S.C. 413, 414, 248 S.E.2d 263, 263

(1978). Opinions of our Office on the subject of moral turpitude have consistently

recognized the same. See, e.g.. Op. S.C. Att'v Gen.. 2014 WL 2538230 (May 12, 2014); Op. S.C. Atf V Gen.. 2007 WL 655616 (Feb. 5, 2007); Op. S.C. Atfv Gen.. 1998 WL 61843 (Jan. 27, 1998). Moreover, "moral turpitude implies something immoral in itself, regardless of whether it is publishable by law as a crime." State v. Horton. 271 S.C. 413, 414, 248 S.E.2d 263 (1978)(citing 58 C.J.S. Morals at 1203). Behavior that is primarily self-destructive typically does not involve moral turpitude, which requires a breach of duty to society and one's fellowman. State v. Maior. 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990). Thus, it follows that while all crimes involve some degree of social irresponsibility, not every crime is one that involves

moral turpitude. State v. LaBarge. 275 S.C. 168, 172, 268 S.E.2d 278,280(1980). rtENiBERT C.Dennis Building • Post Office Box 11549 • Columbia,SC 29211-1549 • Telephone 80.^-734-3970 • Facsimile 803-253-6283

Thomas Limehouse, Legal Counsel
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March 9, 2017

"In determining whether a crime is one involving moral turpitude, the Court focuses primarily on the duty to society and fellow man which is breached by the commission

of a crime." State v. Ball. 292 S.C. 71, 73, 354 S.E.2d 906, 908 (1987), overruled on other grounds bv State v. Maior. 301 S.C. 181, 391 S.E.2d 235 (1990). Furthermore, it has been concluded that "[m]ost offenses found to involve moral turpitude . . . seem to include some sort of dishonest behavior . . . ." McAninch and Fairey, The Criminal Law of South Carolina. 45 (3rd ed. 1996); see also State v. Hall. 306 S.C. 293, 295, 41 1 S.E.2d 441, 442 (Ct. App. 1991) (quoting the above in its analysis of

whether first offense driving under the influence and resisting arrest were crimes of moral turpitude).

We have not previously addressed the issue of whether an indictment for domestic

violence 2nd degree constitutes a "crime of moral turpitude" for purposes of Art. VI, § 8. This provision of the State Constitution authorizes the Governor to suspend "[a]ny officer of the State or its political subdivisions except members and officers of the Legislative and Judicial branches, who has been indicted by a Grand Jury for a crime of moral turpitude. . .

Section 16-25-20(A)

makes it unlawful to:
(1) 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.

Subsection (C) further states:
(C) A person commits the offense of domestic violence in the second degree if the person violates subsection (A) and: (1) moderate bodily injury to the person's own household member results or the act is accomplished by means likely to result in moderate bodily injury to the person's own household member; (2) the person violates a protection order and in the process of violating the order commits domestic violence in the third degree;

(3) the person has one prior conviction for domestic violence in the past ten years from the current offense; or (4) in the process of committing domestic violence in the third degree one of the following also results: (a) the offense is committed in the presence of, or while being perceived by, a minor;

Thomas Limehouse, Legal Counsel
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March 9, 2017

(b) the offense is committed against a person known, or who reasonably should have been known, by the offender to be pregnant;

(c) the offense

is committed during the commission

of a

robbery, burglary, kidnapping, or theft;
(d) the offense is committed by impeding the victim's breathing or air flow; or

(e) the

offense is committed using physical force or the
threatened use of force against another to block that person's

access

to

any

cell

phone,

telephone,

communication device with the
obstructing, or interfering with:

(i)

or

electronic

purpose of preventing,

the report of any criminal offense, bodily injury, or
property damage to a law enforcement agency; or

(ii)

a request for an ambulance or emergency medical

assistance

to

any

law

enforcement

agency

or

emergency medical provider.

A person who violates this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than two thousand five hundred dollars nor more than five thousand dollars or imprisoned for not more than three years, or both.

Domestic violence in the second degree is a lesser-included offense of domestic violence in the first degree, as defined in subsection (B), and domestic violence of a high and aggravated nature, as defined in Section 16-25-65.

Assault and battery in the second degree pursuant to Section 16-3-600 (D) is a lesser-included offense of domestic violence in the second degree as defined in this subsection.

Domestic violence 2nd degree is an offense within the jurisdiction of the Court of General Sessions. Based upon the Indictment, it appears that the Defendant is alleged to fall within §1625-20(A) [cause physical harm or injury to household member] and § 16-25-20(C)(l) [moderate bodily injury to person's household member]. The term "household member" is defined in § 1625-10(3) to include a spouse, former spouse, persons who have a child in common or a male or female who are cohabiting or formerly have cohabited. While our opinions have not yet addressed the question of whether the crime of domestic

violence 2nd degree constitutes a crime of moral turpitude, a number of other jurisdictions have dealt with the question generally. In Morelli v. Ashcroft. 100 Fed. Appx. 620, 621-22 (9th Cir.

Thomas Limehouse, Legal Counsel
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March 9, 2017

2014), for example, the Ninth Circuit concluded that ". . . we agree with the district court that the BIA (Board of Immigration Appeals) did not err when it treated a crime of domestic violence against a cohabitant as a crime of moral turpitude." Morelli cited in support of this conclusion

Graeeda v, U.S. INS. 12 F.3d 919, 922 (9th Cir. 1993), which had held that inflicting injury upon one's spouse severely to cause a "traumatic condition" is "an act of baseness or depravity contrary to accepted moral standards."

And, in People v. Rodriguez. 5 Cal. App. 4th 1398, 7 Cal. Reptr. 495 (1992), the Court held that the crime of inflicting corporal injury upon a spouse or cohabitant is a crime of moral turpitude. There, the Court's reasoning was as follows:
[t]o violate section 273.5 the assailant must, at the very least, have set out, successfully to injure a person of the opposite sex in a special relationship for which society rationally demands, and the victim may reasonably expect stability and safety, and in which the victim for these reasons among others, may be especially vulnerable. To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it willfully, and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude.

5 Cal. App. 4th at 1402, 7 Cal. Reptr. at 497. Thus, in the California Court of Appeals' view, it is the breach of the "special relationship" of the couple through the infliction of injury by one upon the other which marks the crime as one of "moral turpitude."

See also People v. Burton. 243

Cal. App. 4th 129, 135, 136, 196 Cal. Reptr. 392, 398, 399 (2015) [purpose of statute is to "afford greater protection to intimate partners" and that "we agree with the California courts that have

previously addressed this issue that a violation of Section 273.5 is a crime of moral turpitude as a matter of law."]

While, as you indicate, the South Carolina Supreme Court has not squarely addressed this

question, there are strong indications the Court would conclude that domestic violence 2nd degree constitutes a crime of moral turpitude. In Re Laguiere is a good example. There, in an attorney disciplinary proceeding, in which the attorney was publicly reprimanded, the Supreme Court noted that the attorney in question had admitted that he violated several rules of professional conduct following his plea of guilty for criminal domestic violence. One of the Rules which Respondent admitted to have violated was Rule 8.4(c) (professional misconduct for a lawyer to engage in conduct involving moral turpitude).

Moreover, In Re Berry. 345 S.C. 463, 549 S.E.2d 254 (2001), also involved a disciplinary action. Respondent was accused of numerous violations of the Rules of Professional Responsibility, including having pled guilty to the offense of criminal domestic violence, as well

as several narcotics offenses. The Court noted that these criminal offenses (including domestic violence) had been found by the Panel to constitute "convictions of serious crimes as defined by Rule 2 of Rule 413, as well as crimes of moral turpitude." (emphasis added).

The Court

disbarred the Respondent as "the appropriate sanction in similar cases involving multiple acts of

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March 9. 201 7

misconduct, including criminal violations."'

One of the cases cited by the Court was In Re

Courtney. 342 S.C. 617, 538 S.E.2d 652 (2000) which had concluded that Respondent Courtney had violated, among other Rules, Rule 8.4(c), relating to conduct involving moral turpitude.

Thus, it can reasonably be assumed that the Court in In Re Berry implicitly affirmed the recommendation of the Panel regarding the conviction of criminal domestic violence as one involving moral turpitude.

In the present situation the Indictment states:
That Mohsen A. Baddourah did in Richland County on or about June 29, 2016 cause physical harm or injury to a household member, CARRIE RHETT, or did offer or attempt to cause physical harm or injury to a household member, CARRIE RHETT,

with

apparent present

ability

under circumstances reasonably creating fear of

imminent peril by striking CARRIE RHETT with a car door an act likely to result in moderate bodily injury, in violation of Section 16-25-20 (A-D), S.C. Code of Laws, 1976, as amended.

Thus, the Indictment alleges conduct which falls within §§'s 16-25-20(A) and (C)(l)'s ambit. Based upon the foregoing authorities, in our opinion, the Indictment alleges sufficiently a "crime

of moral turpitude" for purposes of Article VI, § 8.
Conclusion

It is our opinion that the crime of domestic violence 2nd degree is a "crime of moral turpitude" for purposes of the Governor's suspension power provided in Article VI, § 8 of the

South Carolina Constitution. We address herein only domestic violence 2nd degree and no other domestic violence offenses or any other offense. Sinpeoely,

/
Robert D. Cook
Solicitor General