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Joseph F. Rice School of Law

A Defendant’s Guide to Restraining Orders

Part 1: What is a Restraining Order?

A Restraining Order is an order of a South Carolina Magistrates Court that protects a person (the “Plaintiff”) from stalking and harassment by prohibiting another person (the “Defendant”) from doing certain things.

What can a Restraining Order do?

If granted by the Court, a Restraining Order remains in effect for one year, and usually orders a Defendant to:

  • Not abuse, threaten or both (in a bad way) a Plaintiff or certain members of the Plaintiff’s family
  • Stay away from the Plaintiff’s home, work, school, and other places they often go, and
  • Not contact the Plaintiff in any way.

When will the Court enter a Restraining Order?

The Court will enter a Restraining Order against you if the Court finds that you have harassed or stalked the Plaintiff. Specifically, the Court must find that you committed harassment, first degree, harassment, second degree, or stalking against the Plaintiff.

Harassment, First Degree means causing someone mental or emotional distress by doing things like:

  • Following them,
  • Watching them or hanging around their home, workplace, school, or another place they often go
  • Damaging their property, or
  • Repeatedly contacting them after they told you not to contact them or after they have filed a police report.

The Plaintiff must prove that there is a pattern of you acting in this way, which means that the Plaintiff must show that you have done something like this two or more times to the Plaintiff. The Plaintiff must show that your actions were intentional (on purpose), unreasonable, and “serve no legitimate purpose.” Basically, this means that the Plaintiff must prove that there were no good reasons for your actions. Finally, the Plaintiff must show that your actions were a “substantial intrusion” into the Plaintiff’s private life, not just a minor annoyance.

For the full legal definition of Harassment (First Degree) see the attached statute (§16-3-1700(A)) on page 6.

Harassment, Second Degree means causing someone mental or emotional distress by doing things such as contacting the Plaintiff repeatedly through verbal, written, or electronic means.

The Plaintiff must prove that there is a pattern of you acting in this way, which means that the Plaintiff must show that you have done something like this two or more times to the Plaintiff. The Plaintiff must show that your actions were intentional (on purpose), unreasonable, and “serve no legitimate purpose.” Basically, this means that the Plaintiff must prove that there were no good reasons for your actions. Finally, the Plaintiff must show that your actions were a “substantial intrusion” into the Plaintiff’s private life, not just a minor annoyance.

For the full legal definition of Harassment (Second Degree) see the attached statute (§16-3-1700(B)) on page 6.

Stalking means that you have made someone afraid that you will harm them or their family or damage their or their family’s property by saying, writing, or doing something to them.

For the full legal definition of Stalking see the attached statute (§16-3-1700(C)) on page 6.

Temporary Restraining Orders

The Court may enter a Temporary Restraining Order against you before a full trial is held. You do not have to be notified before this is granted.

A Temporary Restraining Order may order you not to:

  • contact or attempt to contact the Plaintiff,
  • abuse, threaten, or bother (in a bad way) the Plaintiff or certain members of the Plaintiff’s family, and/or
  • enter or attempt to enter the Plaintiff’s home, workplace, school or other location.

If you are served with a Temporary Restraining Order, you must follow its terms until its expiration date or, if there is no expiration date, until the next hearing date in the case. Violation of a Temporary Restraining Order can be punishable by 30 days in jail, a fine of $500, or both.

Service

What is it?

Service is when you receive a copy of the Summons, the Complaint , any other documents that the Plaintiff has filed, and any Orders entered by the Court.

  • A Summons is a legal document that informs an individual to appear in court on a specific day and time.
  • The Complaint is a legal document that sets forth the Plaintiff’s reason for bringing the action.

How will you know if you have been served?

You will be handed a copy of the papers, or the Complaint may be left at your home with a resident of a suitable age.
You can be served by a sheriff, a deputy, a magistrate’s constable, or any other person who is at least 18 years old and who is not the Plaintiff or the Plaintiff’s attorney.

What happens after service?

After you are served, the Court will hold a hearing in the case.
You must be served at least 5 days before the hearing, not including weekends, holidays, and the date of service.

For example:

  • You are served on Monday.
  • The clock starts on Tuesday as the first day for counting.
  • Tuesday = 1, Wednesday = 2, Thursday = 3, Friday = 4, Saturday = ???
  • Since the 5th day is a weekend, the last day now becomes the next business day, which would be Monday. Monday is the fifth day.

Between the time when you are served and the hearing date, you should hire a lawyer if you wish to do so and prepare for your hearing.

Counsel

You have the right to be represented by counsel if you wish. Counsel will not be appointed for you by the Court. You can hire a private attorney, or the South Carolina Pro Bono Program may be able to connect you with a volunteer attorney to help you with your case for free. Call the number below to see if you qualify and if an attorney can help.

Part 2: Preparing for the Hearing

Reading the Complaint

The Complaint is a form filed by the Plaintiff who is seeking a Restraining Order against you. You will receive a copy of the Complaint when you are served.

The Complaint describes the events and/or contacts from you that the Plaintiff believes are harassment or stalking. The Plaintiff must give you notice of the reasons the Plaintiff believes that the Court should enter a Restraining Order against you. The Complaint is where the Plaintiff provides this notice.

Read the Complaint! It will help you understand the Plaintiff’s story and explain your version of the events.

Preparing Evidence

Bring to the hearing any evidence that supports your story of what happened or that shows the events did not happen in the way the Plaintiff describes.

Documents

You should bring any documents that show what happened. Bring three (3) printed copies of any documents you want to present to the Court.

To use any information that is on your phone, you must make a separate copy of that information off of your phone to give to the Court.

  • You should PRINT OUT screen shots of text messages, photos, and call logs.
  • You should make a separate recording of any voicemail messages or videos or any other evidence you want to show the Court from your cell phone that cannot be printed. Save any separate recordings on a flash drive or a disc that can be given to the Court.
  • If you do not print or separately record evidence on your phone, the Court may only review evidence stored on your phone if the Court takes your phone away from you for at least 30 days.
Witnesses

You should bring witnesses who saw what happened, heard what was said, or observed other things that support your story. The judge may require the witnesses to sit outside the courtroom until it is their turn to speak.

Planning What to Wear to Court

Law Help South Carolina recommends that parties wear the following in court proceedings:

“Appropriate dress includes suits, jackets, dresses, or dress slacks. Males should tuck their shirts into their pants. Casual clothing such as sweat clothes, tank tops, shorts, and similar summer beach wear is not appropriate for the courtroom. Remove hats when entering the courtroom, unless they are required for a medical condition.”

Part 3: The Hearing and Possible Results

What happens at the hearing?

The hearing is the chance for you and the Plaintiff to tell the Court your side of the story. If you and the Plaintiff are both at Court on the hearing day, the Court might ask if you can agree on a Restraining Order. If you do not agree, then the Court will hold a hearing.

First, the Plaintiff or the Plaintiff’s attorney will set forth the Plaintiff’s case. The Plaintiff will “testify” (tell his or her story to the Court under oath) and present any papers or other evidence the Plaintiff brought with them. Any witnesses the Plaintiff brought to court will also have a chance to testify. You are not allowed to comment or interrupt while the Plaintiff’s or the Plaintiff’s witnesses are testifying.

After the Plaintiff and each witness testifies, the judge will invite you or your attorney to ask questions of the Plaintiff and any of the Plaintiff's witnesses about the testimony they gave (the story they told).

Next, you will tell your side of the story to the judge and introduce any printed evidence or witnesses you may have. After you and each of your witnesses testify, the Plaintiff will have the opportunity to ask you and your witnesses questions about that testimony.

Note: you are not required to tell your story to the Court if you do not wish to do so. Any testimony you give under oath may be used against you in other cases, including in criminal cases. Especially if you are concerned that your testimony may be used against you in a future case, you should consult a lawyer.

After both sides have had their chance to present evidence and testimony, the judge will decide whether to grant a Restraining Order. If a Restraining Order is granted, the judge will explain what the order requires.

Courtroom Manner

During the hearing, make sure to only speak when invited to do so by the judge. Do not comment, talk, or make any disruptive non-verbal communications such as sighing, rolling your eyes, or shaking your head when the other party or the judge is speaking. Remain calm and respectful throughout the hearing.

What happens if you don’t attend the hearing?

If you were served in advance of the hearing and do not attend, the hearing will take place without you. The Plaintiff will be able to state his or her case to the judge, and the judge will decide whether to grant a Restraining Order without hearing your side of the story.

What happens if the judge issues a Restraining Order against you?

If the judge decides to enter a Restraining Order against you, the judge will next decide what the Restraining Order will require. A Restraining Order may order you not to:

  • contact or attempt to contact the Plaintiff,
  • abuse, threaten, or bother (in a bad way) the Plaintiff or certain members of the Plaintiff’s family, and/or
  • enter or attempt to enter the Plaintiff’s home, workplace, school or other location.

You will also be required to pay the $55 filing fee in the case. This fee is charged against the “non-prevailing” party, which means the person the Court rules against. The Court can set up a payment plan if you cannot afford to pay the full fee. If you need a payment plan, you must request one from the judge before the hearing ends.

What happens if the judge does not issue a Restraining Order against you?

If this happens, you are free to go and you DO NOT have to pay a $55 filing fee.

What happens if you violate the Restraining Order after it has been issued?

If you violate the order you can be charged with a crime or held in contempt of court. Violation of a Restraining Order can be punishable by 30 days in jail, a fine of $500, or both.

Article 17. Harassment and Stalking

S.C. Code Ann. § 16-3-1700. Definitions

(A) "Harassment in the first degree" means a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress. Harassment in the first degree may include, but is not limited to:

(1) following the targeted person as he moves from location to location;
(2) visual or physical contact that is initiated, maintained, or repeated after a person has been provided oral or written notice that the contact is unwanted or after the victim has filed an incident report with a law enforcement agency;
(3) surveillance of or the maintenance of a presence near the targeted person's:

(a) residence;
(b) place of work;
(c) school; or
(d) another place regularly occupied or visited by the targeted person; and

(4) vandalism and property damage.

(B) "Harassment in the second degree" means a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress. Harassment in the second degree may include, but is not limited to, verbal, written, or electronic contact that is initiated, maintained, or repeated.

(C) "Stalking" means a pattern of words, whether verbal, written, or electronic, or a pattern of conduct that serves no legitimate purpose and is intended to cause and does cause a targeted person and would cause a reasonable person in the targeted person's position to fear:

(1) death of the person or a member of his family;
(2) assault upon the person or a member of his family;
(3) bodily injury to the person or a member of his family;
(4) criminal sexual contact on the person or a member of his family;
(5) kidnapping of the person or a member of his family; or
(6) damage to the property of the person or a member of his family.

(D) "Pattern" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.

(E) "Family" means a spouse, child, parent, sibling, or a person who regularly resides in the same household as the targeted person.

(F) "Electronic contact" means any transfer of signs, signals, writings, images, sounds, data, intelligence, or information of any nature transmitted in whole or in part by any device, system, or mechanism including, but not limited to, a wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.

(G) This section does not apply to words or conduct protected by the Constitution of this State or the United States, a law enforcement officer or a process server performing official duties, or a licensed private investigator performing services or an investigation as described in detail in a contract signed by the client and the private investigator pursuant to Section 40-18-70.

(H) A person who commits the offense of harassment in any degree or stalking, as defined in this section, while subject to the terms of a restraining order issued by the family court may be charged with a violation of this article and, upon conviction, may be sentenced pursuant to the provisions of Section 16-3-1710, 16-3-1720, or 16-3-1730.

 

Challenge the conventional. Create the exceptional. No Limits.

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