The following information is all taken from the South Carolina Court of Appeals decision in Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754 (Ct.App.2007):

The determination of whether contempt is civil or criminal depends on the underlying purpose of the contempt ruling.  The major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised, including the nature of the relief and the purpose for which the sentence is imposed.  The purpose of civil contempt is to coerce the defendant to do the thing required by the order for the benefit of the complainant.

The primary purposes of criminal contempt are to preserve the court’s authority and to punish for disobedience of its orders.  If it is for civil contempt the punishment is remedial, and for the benefit of the complainant.  But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.

An unconditional penalty is criminal in nature because it is solely and exclusively punitive in nature.  The relief cannot undo or remedy what has been done nor afford any compensation and the contemnor cannot shorten the term by promising not to repeat his offense.  If the relief provided is a sentence of imprisonment, it is punitive if the sentence is limited to imprisonment for a definite period.  If the sanction is a fine, it is punitive when it is paid to the court.  However, a fine that is payable to the court may be remedial when the contemnor can avoid paying the fine simply by performing the affirmative act required by the court’s order.

In civil contempt cases, the sanctions are conditioned on compliance with the court’s order.  The conditional nature of the punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by doing what he had previously refused to do.  If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court’s order. Those who are imprisoned until they obey the order, carry the keys of their prison in their own pockets.  If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court’s order.

The distinction between civil and criminal contempt is critical, because criminal contempt triggers additional constitutional safeguards.  Civil contempt must be proved by clear and convincing evidence.  In a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt.   Intent for purposes of criminal contempt is subjective, not objective, and must necessarily be ascertained from all the acts, words, and circumstances surrounding the occurrence. Prosecutions for serious criminal contempts [in which the court wishes to sentence the defendant to imprisonment of more than six months] are subject to the jury trial protections of the Sixth Amendment.


For information regarding why one might wish to seek criminal rather than civil contempt sanctions, see: Seeking criminal contempt for denied visitation

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