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 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 16th Circuit Solicitor’s Office domestic violence unit.
On Tuesday, two such cases involving same-sex defendants in a co-habitation relationship were dismissed during 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 because of the same ruling, Desch said.
The cases dismissed at preliminary hearings involve same sex couples who are living together, but not legally married.
In one of Tuesday’s hearings, Assistant York County Public defender Jeff Zuschke successfully argued to York County Magistrate Michael Scurlock that the Supreme Court ruling on the S.C. law does not 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,” Zuschke argued.
“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.
However, Desch and Brackett disagree with that ruling, and previous similar rulings made by magistrates.
Legal protections for domestic violence victims are stronger than they are 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 still 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 common-law same sex couples must be considered married under state law.