After months of dismissals, York County courts now can move forward with domestic violence cases involving same-sex victims, prosecutors said.
Kevin Brackett, 16th Circuit Solicitor, said that change was announced Tuesday in preliminary hearing court by York County Magistrate Judge Michael Scurlock. He told court officials, prosecutors and defense lawyers that he and other judges are to find probable cause in domestic violence preliminary hearings involving unmarried, same-sex couples, if prosecutors can prove cohabitation along with other evidence requirements.
The decision means that all same-sex domestic violence victims across South Carolina now have the same protections under the law as any other person, prosecutors said.
Scurlock said in court that judges had received instruction from the South Carolina Supreme Court.
“It made it clear this applies to all aspects of domestic violence law,” Brackett said. “The Equal Protection Clause of the Constitution that applies to all must be applied equally in all domestic violence cases.”
Many domestic violence cases involving same-sex partners in recent months had been dismissed by magistrate judges because South Carolina law recognized only “man and woman” couples in defining domestic violence.
The most recent supreme court directive affects only same sex-couples living together, but are not married.
South Carolina’s law 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.
The issue came to light after an investigation by The Herald earlier in December, which found that at least six York County cases involving same-sex domestic violence cases had been dismissed by magistrates because the law only recognized couples that were “man and woman.”
Defense lawyers previously had argued, and magistrates had agreed, that S.C. law said “man and woman.”
Scurlock told The Herald Wednesday that he reached out to S.C. Supreme Court Justice Donald Beatty about the issue on Dec. 13.
“There were mixed opinions and a divide around the state on the cohabitation issue,” Scurlock said. “This is not just a York County issue. It is a statewide issue.”
Scurlock said the chief justice advised him, that if the evidence is sufficient to find cohabitation or former cohabitation, that magistrates should treat the case as a domestic violence and find probable cause.
Legal protections for domestic violence victims are stronger than in assault cases, and potential penalties are more severe, said Jenny Desch, the York County prosecutor who runs the office’s domestic violence unit.
“I’m happy we can treat everyone equally and victims can avail themselves of necessary protections,” Desch said.
York County prosecutors can continue to seek grand jury indictments in same-sex domestic violence cases that had previously been dismissed.
Under South Carolina law, prosecutors have the authority to seek a “direct indictment” against a defendant when a magistrate has ruled there is not probable cause. Prosecutors can submit the case directly 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 go to trial.
Harry Dest, 16th Circuit Public Defender, said lawyers in his office were aware of Scurlock’s statement to court officials, but South Carolina courts may see challenges.
“This is certainly an issue that needs to be resolved,” Dest said.
In 2017, York County assistant solicitor Leslie Robinson successfully prosecuted the first same-sex domestic violence case in South Carolina. That couple was legally married, Robinson said.
Legally married same-sex couples already were protected by the state’s domestic violence law.
In York County earlier in 2017, a Family Court judge ruled that common-law, same-sex couples must be considered married under state law. Common law marriage is a marriage without ceremony or license but includes the other aspects of a marriage such as living together and joint property.