False Domestic Violence Charges: Domestic Legal Violence in Florida's Injunctive Relief Statute

There are several problems with Florida's broadly defined statutes and procedures regarding injunctive relief in Domestic Violence cases. These laws and procedures actually prevent wrongfully accused individuals from receiving a fair hearing and punish the innocent without event he benefit of a trial.

Domestic Violence is a broadly defined legal phrase in the state of Florida that includes a number of different types of criminal accusations. Although most members of the public associate domestic abuse cases with assault or battery charges, Florida Statute Section 784.046, demonstrate the breadth of Domestic Violence law within the State of Florida.

Section 784.046 is titled: “Action by victim of repeat violence, sexual violence, or dating violence for protective injunction; powers and duties of court and clerk of court; filing and form of petition; notice and hearing; temporary injunction; issuance; statewide verification system; enforcement.-- “

The purpose of this statute is for injunctive relief, and must be read in conjunction with other applicable statutes, such as Sections 784.011 – 784.045 (assault, aggravated assault, battery, felony battery, domestic violence by strangulation and aggravated battery) as well as other statutes, which the following sections make clear.

The broad nature of how Florida defines domestic Violence can be seen with the definition of violence: "Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person. Florida Statute Section 784.046(1)(a).

Therefore, all sexual offenses under Sections 794 and 800 are included as well. Luring and enticing a child, as well as unlawful Sexual Performance by a Child are likewise included. (Sections 787 and 837).

Section 784.046(1)(c)(5) expands the definition further to “[a]ny other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.” Emphasis added.

Next, Section 784.046(1)(d) adds “dating violence” to the mix:

"'Dating violence' means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:

1. A dating relationship must have existed within the past 6 months;

2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and

3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.”

There are several problems with these broadly defined statutes: When utilized improperly with other sections of Florida law, they act to prevent wrongfully accused individuals from receiving a fair hearing and punish the innocent without even the benefit of a trial.

First, Section 784.046(6)(c) requires that an “ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days.” Translation: Anyone with a grudge can go down to the courthouse in all sixty-seven (67) Florida counties and swear out a petition that will have a partner or family member kicked out of the house without much more than their clothing and their toiletries. The victim of a false injunction is blindsided, and without legal relief for over two weeks in most cases (hearings on these petitions are usually held on the fourteenth (14th) day in most counties).

Second, the burden of proof is lower than in a criminal case, since this is essentially a civil proceeding: Less proof is required to keep a wrongfully accused person out of their home.

Third, how do you prove you didn't do something? Can you prove you were not speeding on the way to work? Of course not. This makes prevailing at the “fair hearing” very difficult, especially when you factor in . . .

This whole area of law if deeply politicized. Judges in Florida must face the voters, and that means special interest groups. Worse still, petitioners are granted a free lawyer. The falsely accused are not.

False claims of Domestic Violence, whether battery allegations or sexual offenses are almost never prosecuted over a concern that “victims will not come forward” if such cases are prosecuted. This is a travesty so ludicrous it defies both the foundations of our legal system's promise of justice as well as common sense. Men and women across Florida are victimized by this form of Domestic Legal Violence.

Domestic Violence is just plain wrong – especially when the very system that promises redress for grievances is rigged to punish the innocent, regardless of gender.

Attorney Stephen G. Cobb has practiced criminal defense law exclusively since 1990, and won his first Capital Case in 1998. He has litigated over 10,000 Florida criminal cases from DUI and Domestic Violence to First Degree Murder. Mr. Cobb has also taught Evidence Law at the University of West Florida and LSAT (Legal Scholastic Aptitude Test) preparation. He is certified by the Florida Bar Association as an Expert in Criminal Trial Law.

Copyright Stephen G. Cobb, CBS
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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