Domestic Violence Law Calls into Question Legality of Recent Prosecutions

The Law Office of James R. Snell, Jr., LLC, is questioning the legality of prosecutions under our state’s current domestic violence laws. We believe that many current prosecutions may violate the prohibition against criminal application of ex post facto laws (an ex post facto law is one that is applied retroactively). Article I, Section 4, of the South Carolina State Constitution prohibits application of ex post facto laws.

Article III, Section 18, of the South Carolina State Constitution requires that new laws have the State Seal affixed before they become final. There have been recent news articles discussing how this step has been missed for many new laws over the years. Although elected and government officials may have various excuses for why this occurred, we do not believe that unfinished criminal legislation should be the basis of arrests, prosecutions, or criminal sentencing.

After research, we learned that the state seal was not timely affixed on the domestic violence law as required for compliance with constitutional requirements under our law. According to an affidavit we received from the South Carolina Secretary of State's office, the seal was not affixed until October, 2017. This is over two years after the law originally began being enforced. This issue affects likely every domestic violence case currently pending in South Carolina.

We look forward to litigating this issue on behalf of our clients, and are continuing to research what other criminal laws may be effected by the omission of the State Seal.

Categories: Criminal Law & Policy

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