The April 12, 2023, Court of Appeals opinion in Taylor v. Taylor, 439 S.C. 272, 886 S.E.2d 716 (Ct.App. 2023), attempts to fill an obvious gap in the definition of household member in South Carolina’s Protection from Domestic Abuse statute. Taylor decided that a child of one party can obtain an order of protection from the spouse, ex-spouse, or co-parent, or former cohabiting companion of that child’s parent—even if the child is not related to the party from whom protection is sought.
In Taylor, Wife sought an order of protection from domestic abuse against her husband on both her own behalf and on behalf of her minor daughter (who was not husband’s child). Wife’s allegation was that Husband had molested her daughter. At the emergency hearing, the family court found that Husband had abused his stepdaughter but found it could not issue an order of protection for her as she did not meet the definition of “household member” under the domestic abuse statue. Wife appealed.
The Court of Appeals reversed, finding the family court could grant an order of protection for an abused stepchild of the alleged abuser. In so doing it looked to legislative intent to interpret the domestic abuse statute as the actual definitions in the code would lead to children being unprotected from domestic abuse.
Under the definition of household member in South Carolina’s domestic abuse statute, no child of spouses, ex-spouses, or former romantic companions would appear to be a “household member.” That code subsection, S.C. Code Ann. § 20-4-20(b), defines “household member” as “(i) a spouse; (ii) a former spouse; (iii) persons who have a child in common; (iv) a male and female who are cohabiting or formerly have cohabited.” Subsection f allows the family court to grant an order of protection for “minor household members” but the definition of “household member” in subsection (b) would not appear encompass children of the parties. Under subsection b, “minor household members” would only be minors who were themselves married, had children together, or had or were cohabiting.
In analyzing legislative intent, the Court of Appeals noted an intent to protect “minors” under subsection f even if those minors would not fall under the definition of household members in subsection b. It also noted that the narrow reading of household member under subsection b would allow pets to be protected from domestic abuse while leaving most children unprotected. Subsection f clearly, if inartfully, demonstrates the legislature intended children of household members to be protected from domestic abuse. The Court of Appeals held that this intent overcame the unduly restrictive definition of household members in subsection b.
The Taylor opinion employs a method of statutory interpretation that was popular a generation ago and is held in low regard now. When I went to law school in 1988-91, we spent significant time learning to research legislative intent as part of statutory interpretation and textualism was a pet project of a few conservative legal scholars, most notably deceased United States Supreme Court Justice Antonin Scalia. Scalia noted that legislators often provided explanations that were politically expedient or popular rather than accurate statements of their intent. He believed (correctly in my opinion) that when judges used legislative intent to interpret statutes there were often searching for evidence that supported their preferred policy position rather than accurately determining intent.
He also believed (again, correctly in my opinion) that when judges bailed legislatures out of their inartful drafting by employing legislative intent, it encouraged legislatures to be sloppy in their drafting. His view was that judges encountering poorly drafted laws should note the problems and make the legislature fix them by amending the laws.
When my wife went to law school exactly thirty years later, little time was spent on legislative intention and textualism was the preferred method of statutory interpretation. Scalia was correct in elevating textualism over legislative intent: so correct that even liberal Supreme Court Justice Elana Kagan noted in her 2015 “Scalia Lecture” at Harvard Law School (where she was previously the dean), “we’re all textualists now.”
Taylor’s emphasis on legislative intention seems like a throwback to an older era of statutory interpretation. Certainly, a protection from domestic abuse statute that doesn’t protect minor children is somewhat absurd but the legislature didn’t even include minor children of the parties in its definition of household members. Further, an order protecting Ms. Taylor would appear to protect her daughter as when would Mr. Taylor have independent access to his stepdaughter? Taylor seems like an odd case to emphasize legislative intent. However, an interpretation that hewed to the narrow definition of household member would leave all South Carolina children unprotected.
