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What Proof Is Needed for a Restraining Order?

In South Carolina, a restraining order is a court order issued by a South Carolina Magistrates Court or (sometimes) the Family Court. Its purpose is to protect people from stalking and harassment by prohibiting someone else (the accused) from engaging in certain activities.

Restraining orders often come into play in conjunction with domestic violence and sex crime allegations. If someone seeks a restraining order against you or accuses you of violating one, you need to know how to respond.

Who Can Apply for a Restraining Order?

Anyone who claims to be a victim of first-degree harassment, second-degree harassment, or stalking can seek a restraining order.

An accuser can seek a restraining order against anyone who is harassing or stalking them, including family members, boyfriends or girlfriends, or anyone else. There does not have to be a domestic relationship involved.

What a Restraining Order Can Do

A restraining order can order you to:

  • Refrain from abusing, threatening, or otherwise harassing the accuser or members of their family,
  • Avoid the complainant’s home, work, school, and
  • Refrain from contacting the accuser in any way.

If the accuser is your current spouse or if you are living with the complainant, the Magistrates Court normally cannot order you to leave your own home. The Family Court, however, can kick you out of your own home (with sufficient evidence, of course) by issuing an Order of Protection against you.

The Consequences of Violating a Restraining Order

If you violate a restraining order, the court might:

  • Hold you in contempt of court. This is a criminal offense that can result in fines or jail time
  • Order you to complete an anger management course or participate in violence prevention counseling.
  • Prohibit you from owning or possessing a firearm.

Repeatedly violating restraining orders can result in progressively more serious consequences.

Proof Needed for a Restraining Order in South Carolina

To obtain a restraining order in South Carolina, the accuser must prove to the court at the hearing that they have been a victim of first-degree harassment, second-degree harassment, or stalking.

Here’s what the accuser needs to prove against you for each type of complaint:

  • First-degree harassment: The accuser must prove that you committed an act that caused them mental or emotional distress on at least two occasions. This could include following you, watching you, or hanging around your home, school, workplace, or any other place they often go. You must also have damaged their property or contacted them at least twice after they warned you not to. Your acts must have been intentional and unreasonable, and they must have served no legitimate purpose. Taken as a whole, your actions must have constituted a substantial intrusion into the accuser’s private life.
  • Second-degree harassment: You must have committed at least two acts that caused your accuser mental or emotional distress. This might mean contacting them repeatedly, for example. Your acts must have been intentional and unreasonable, and they must have served no legitimate purpose. Finally, your acts must have constituted a substantial intrusion into your accuser’s life.
  • Stalking: On at least two occasions, you must have caused your accuser to fear that you might harm them or their family or damage their or their family’s property. They must have done this two or more times.

Your accuser doesn’t have to prove their claims against you ‘beyond a reasonable doubt’ to get a restraining order against you. All they need is a ‘preponderance of the evidence,’ which is a much easier standard to meet.

A permanent restraining order requires a full adversarial hearing in which you may offer a defense. It lasts at least one year, but it might last longer.

Temporary Restraining Orders

Your accuser can get a temporary restraining order against you with less proof than the amount required for a permanent restraining order. You don’t even have to be present at the hearing or even know about it in advance.

To get a temporary restraining order, your accuser must show that they are in danger of physical injury. They will also need to prove that you are harassing or stalking them. A court can issue a temporary restraining order without giving you any chance to object. This is because a temporary restraining order is a short-term emergency remedy.

A temporary restraining order lasts until the court holds a full adversarial hearing. At the full adversarial hearing, the judge will either cancel the restraining order or extend it for at least a year.

Hire a Lawyer To Guide You Through the Process

You can seek to defend yourself in a restraining order case without hiring a lawyer-–it’s your constitutional right. In most cases, however, representing yourself isn’t a good idea at all. There is simply too much at stake. Schedule a consultation with a criminal defense lawyer to explore your options.

Michael Jeffcoat-Jeffcoat Firm founder and attorney

MICHAEL R. JEFFCOAT

PRESIDENT

Michael R. Jeffcoat is a criminal defense attorney in South Carolina with over 2 decades of experience, our aggressive criminal defense legal team can help you with misdemeanor and felony offenses. Mr. Jeffcoat strives to keep all his clients informed at all stages of their case.

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