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Immunity Motions in a DV Case

Immunity Motions in a DV Case

A defendant in a South Carolina domestic violence case has a right to claim self-defense. Not only can they claim self-defense at trial, they also have a right to file what is called an immunity motion under the "Protection of Persons and Property Act", S.C. Code § 16-11-410, et seq.

This is a legal procedure whereby the defendant asserts that their self-defense claim is so strong the court should not allow the prosecutor to continue with the case. It is made as a pre-trial motion. Once made the court must resolve the motion prior to the case being eligible for trial.

In an immunity motion the burden of proof is on the defense to establish by a preponderance of the evidence (meaning more likely than not) that they should prevail on a self-defense theory. The judge will hear testimony and consider evidence. There is no jury.

  • If the judge finds that the defense has satisfactorily established self-defense, then they will dismiss the case.
  • If the judge finds that the defense cannot sufficiently establish self-defense, then the case is allowed to go to trial.

In a trial the prosecutor has the burden of proof. All of the jurors must agree, beyond a reasonable doubt, that the defendant is guilty. As part of this they must find that the prosecutor has disproven self-defense beyond a reasonable doubt.

The main advantage to filing this type of motion is that it can protect a defendant from the risk or uncertainty of going to trial. If the motion is not successful the defendant still has every right to fully contest the charge at trial. In the right case these motions can be very beneficial.

Initially it wasn't clear that immunity motions would be allowed in domestic violence cases. The South Carolina Supreme Court ruled in a 2016 case that they were (over the objections of the Attorney General's office). There is however an important difference between how the law treats a self-defense situation in a domestic violence case versus other situations.

If for example, a homeowner is surprised by a burglar they are legally entitled to a presumption that a reasonable person would be in fear of great bodily harm or death. This means that a homeowner may be able to justify automatically using force, even deadly force, upon someone who has broken into their home.

Domestic violence cases are brought where the defendant and alleged victim have a relationship. They may be married, have lived together, or have children together. In any event they are not strangers. This means that they there is no presumption that a reasonable person would be in fear, and there is no automatic justification in using force.

While domestic violence cases don't have the automatic presumptions, as may exist in other situations where immunity motions can be used, the court can still find immunity applies when the defense is able to prove that that self-defense was justified.


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