Refiled November 17, 2017
March 23, 2016
T. Sellers and Alexandra Marie Benevento, both of Strom Law
Firm, L.L.C., of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Solicitor General
Robert D. Cook, Deputy Solicitor General J. Emory Smith, Jr.,
and Assistant Attorney General Brendan Jackson McDonald, all
of Columbia, for Respondent.
Richele K. Taylor and Thomas A. Limehouse, of the Office of
the Governor, both of Columbia, for Amicus Curiae Governor
Henry D. McMaster.
Matthew Stumbo, of Greenwood and Barry J. Barnette, of
Spartanburg, both for Amicus Curiae Solicitors'
Association of South Carolina, Inc.
Bowers Jefferson, of Greenville, for Amicus Curiae South
Carolina Coalition Against Domestic Violence and Sexual
A. Hall and M. Malissa Burnette, both of Columbia, for Amicus
Curiae South Carolina Equality Coalition, Inc.
Ragsdale Fisk, of Greenwood, Tamika Devlin Cannon, of
Greenville, and J. Edwin McDonnell, of Spartanburg, all for
Amicus Curiae South Carolina Legal Services.
Lindsey Danielle Jacobs and Patricia Standaert Ravenhorst,
both of Greenville; and Sarah Anne Ford, of Columbia, all for
Amicus Curiae South Carolina Victims Assistance Network.
Witherspoon Parham Casey, of Columbia, for Amicus Curiae
Women's Rights and Empowerment Network.
careful consideration of the Respondent's petition for
rehearing, the Court grants the petition for rehearing,
dispenses with further briefing, and substitutes the attached
opinions for the opinions previously filed in this matter.
Court granted Jane Doe's petition for original
jurisdiction to consider whether the definition of
"household member" in South Carolina Code section
16-25-10(3) of the Domestic Violence Reform Act and section
20-4-20(b) of the Protection from Domestic Abuse
(collectively "the Acts") is unconstitutional under
the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution.
Specifically, Doe contends the provisions are
unconstitutional because neither affords protection from
domestic abuse for unmarried, same-sex individuals who are
cohabiting or formerly have cohabited. In order to remain
within the confines of our jurisdiction and preserve the
validity of the Acts, we declare sections 16-25-10(3) and
20-4-20(b) unconstitutional as applied to Doe.
case arises out of an alleged domestic dispute between a
former same-sex couple. Doe claims that she and her
ex-fiancé cohabited between 2010 and 2015. Following
the dissolution of the relationship, Doe moved out of the
shared residence and relocated to Columbia.
August 6, 2015, Doe contacted police to report that she was
assaulted by her ex-fiancé the day before as she was
leaving a Columbia hotel. On August 10, 2015, law enforcement
was summoned to Doe's workplace after someone called
regarding a disturbance in the parking lot. When the officers
arrived, Doe claimed that her ex-fiancé and another
individual followed her from her apartment to work. While no
physical confrontation took place, Doe claimed that she felt
threatened by her ex-fiancé's actions. Law
enforcement filed incident reports for both events, the first
was identified as "simple assault" and the second
was identified as "assault-intimidation."
August 12, 2015, Doe sought an Order of
Protection from the Richland County Family Court. The
family court judge summarily denied Doe's request, citing
a lack of jurisdiction pursuant to section 20-4-20(b), which
defines "household member" in the Protection from
Domestic Abuse Act.
filed an action for declaratory judgment in this Court's
original jurisdiction on August 14, 2015. Doe sought for this
Court to declare unconstitutional the statutory definition of
"household member" because it "leaves
unmarried, same-sex victims of abuse without the benefit of
the same remedy afforded to their heterosexual
counterparts." This Court granted Doe's petition for
original jurisdiction by order dated November 5,
essence, Doe maintains the South Carolina General Assembly
intentionally excluded her from consideration for an Order of
Protection in family court "because of her sexual
orientation." As a result, Doe claims she was denied a
remedy that is readily accessible to similarly situated
opposite-sex couples. Doe explains that by purposefully
defining "household member" as "a male
and female who are cohabiting or formerly
have cohabited" rather than in the disjunctive
"male or female, " the General
Assembly enacted a statutory definition that violates the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.
Doe asserts she has been arbitrarily and capriciously
deprived of the right to protect her life as she cannot
obtain an Order of Protection in family court. Further, Doe
contends she is being denied the same protection afforded to
opposite-sex, cohabiting couples even though there is no
rational reason to justify this disparate treatment.
Doe acknowledges that an abuser in a same-sex relationship
could be charged with criminal assault and battery and that
she could obtain a Restraining Order in magistrate's
court, she claims that these remedies are not commensurate
with the heightened penalties and protections afforded by the
Acts. In particular, Doe points to the provisions of the
Domestic Violence Reform Act that authorize enhanced
penalties for convicted abusers who commit additional acts of
violence, restrictions on a convicted abuser's ability to
carry a firearm, additional penalties for violations of
protection orders, and more stringent expungement
remedy the disparate treatment and avoid the invalidation of
the Acts in their entirety, Doe advocates for this Court to:
(1) construe the word "and" in sections
16-25-10(3)(d) and 20-4-20(b)(iv) to mean "or"; and
(2) declare the definition of "household member" to
include any person, male or female, who is currently
cohabiting with someone or who has formerly cohabited with
response, the State contends that any constitutional analysis
could be avoided if the Court: (1) construes the phrase
"male and female" as proposed by Doe; or (2) sever
those words from the definition so that it reads only
"cohabiting or formerly have cohabited." The State
asserts that such a construction would be consistent with and
effectuate the legislative purpose of the Acts, which is to
protect against violence between members of the same
if the Court strikes down the Acts based on a constitutional
violation, the State submits the Court could delay
implementing its decision to allow the General Assembly time
to amend the statutes consistent with this Court's
ruling. Ultimately, given the importance of the domestic
violence statutes, the State implores this Court not to
invalidate the Acts in their entirety based solely on the
literal import of the word "and."
overview of the legislative history of the Acts, particularly
the term "household member, " is instructive. In
1984, the General Assembly enacted the Criminal Domestic
Violence Act and the Protection from Domestic Abuse Act. Act
No. 484, 1984 S.C. Acts 2029. Notably, both Acts are
contained within Act No. 484; however, the definition of
"household member" is different in each
Over the course of the next thirty-one years, the General
Assembly amended the Acts four times, the most extensive in
1994, the General Assembly amended sections 16-25-10 and
20-4-20 to delete "family or" preceding
"household member, " add "persons who have a
child in common, " and add/substitute "a male
and female who are cohabiting or formerly have
cohabited" for "and persons cohabitating
or formerly cohabitating." Act No. 519, 1994 S.C.
Acts 5926, 5926-27; 5929.
2003, the General Assembly deleted "parents and
children, persons related by consanguinity or affinity within
the second degree" from sections 16-25-10 and 20-4-20.
Act No. 92, 2003 S.C. Acts 1538, 1541; 1550.
2005, the General Assembly retained the 2003 definition of
"household member" in sections 16-25-10 and
20-4-20(b), but separately identified each qualifying
household member with numbers in section 16-25-10 and
lowercase Roman numerals in section 20-4-20(b). Act No. 166,
2005 S.C. Acts 1834, 1836; 1842.
2015, the General Assembly extensively amended the Criminal
Domestic Violence Act to provide for the "Domestic
Violence Reform Act." Act No. 58, 2015 S.C. Acts 225
(effective June 4, 2015). While the new Act retained the
definition of "household member, " it provided for,
inter alia, enhanced penalties for one convicted of
subsequent offenses of domestic violence, the offense of
domestic violence of a high and aggravated nature, and the
prohibition of possession of a firearm for one convicted of
a review of the statutory evolution is not dispositive of the
instant case, it is conclusive evidence the General Assembly
purposefully included the phrase "male and female"
within the definition of "household member" in 1994
and has retained that definition.
Presumption of ...