Doe v. State, Appellate Case No. 2015-001726

CourtUnited States State Supreme Court of South Carolina
Citation808 S.E.2d 807,421 S.C. 490
Decision Date17 November 2017
Docket NumberAppellate Case No. 2015-001726,Opinion No. 27728
Parties Jane DOE, Petitioner, v. STATE of South Carolina, Respondent.

421 S.C. 490
808 S.E.2d 807

Jane DOE, Petitioner,
STATE of South Carolina, Respondent.

Appellate Case No. 2015-001726
Opinion No. 27728

Supreme Court of South Carolina.

Heard March 23, 2016
Refiled November 17, 2017
Rehearing Granted November 17, 2017

Bakari 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.

David Matthew Stumbo, of Greenwood and Barry J. Barnette, of Spartanburg, both for Amicus Curiae Solicitors' Association of South Carolina, Inc.

Meliah Bowers Jefferson, of Greenville, for Amicus Curiae South Carolina Coalition Against Domestic Violence and Sexual Assault.

Kevin A. Hall and M. Malissa Burnette, both of Columbia, for Amicus Curiae South Carolina Equality Coalition, Inc.

Leslie 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.

Alice Witherspoon Parham Casey, of Columbia, for Amicus Curiae Women's Rights and Empowerment Network.


421 S.C. 495

After 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.

/s/ Donald W. Beatty, C.J.

/s/ John W. Kittredge, J.

/s/ Kaye G. Hearn, J.

/s/ John Cannon Few, J.

/s/ Costa M. Pleicones, A.J.


The 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 Act1 (collectively "the Acts") is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment2 to the United States

421 S.C. 496


808 S.E.2d 810

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.

I. Factual / Procedural History

This 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.

On 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."

On August 12, 2015, Doe sought an Order of Protection3 from the Richland County Family Court. The family court judge summarily denied Doe's request, citing a lack of jurisdiction

421 S.C. 497

pursuant to section 20-4-20(b), which defines "household member" in the Protection from Domestic Abuse Act.4

Doe 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, 2015.5

808 S.E.2d 811
421 S.C. 498

II. Discussion

A. Arguments

In 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.

Specifically, 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.

Although 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 requirements.

To 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,

421 S.C. 499

who is currently cohabiting with someone or who has formerly cohabited with someone.

In 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 household.

Alternatively, 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."

B. Constitutional Analysis

1. Legislative History6

An overview of the legislative history of the Acts, particularly the term "household

808 S.E.2d 812

member," is instructive. In 1984, the General Assembly enacted the Criminal Domestic Violence Act and the Protection from Domestic Abuse Act. Act

421 S.C. 500

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 Act.7 Over the course of the next thirty-one years, the General Assembly amended the Acts four times, the most extensive in 2015.

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; 5929.8

In 2003, the General Assembly deleted "parents...

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