Posts

Domestic Violence

S/he doesn’t actually hit me, so it isn’t Domestic Violence, right?

With the recent publicity involving NFL player Ray Rice, domestic violence is a frequent topic of conversation. While many jokes and tasteless comments have arisen because of the publicity of this event, it does start conversation surrounding a difficult topic, and allows people to further evaluate their personal relationships. Florida Statutes §741.28 provides definitions for domestic violence and defines who is a family member:

(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

In Florida, if someone believes he or she is a victim of domestic violence, an injunction should be sought. In filing for an injunction, it is important to note the language in Florida Statutes §741.30(3) (h) Petitioner is either a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence because respondent has (mark all sections that apply and describe in the spaces below the incidents of violence or threats of violence, specifying when and where they occurred, including, but not limited to, locations such as a home, school, place of employment, or visitation exchange):

____ committed or threatened to commit domestic violence defined in s. 741.28, Florida Statutes, as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another. With the exception of persons who are parents of a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
____ previously threatened, harassed, stalked, or physically abused the petitioner.
____ attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
____ threatened to conceal, kidnap, or harm the petitioner’s child or children.
____ intentionally injured or killed a family pet.
____ used, or has threatened to use, against the petitioner any weapons such as guns or knives.
____ physically restrained the petitioner from leaving the home or calling law enforcement.
____ a criminal history involving violence or the threat of violence (if known).
____ another order of protection issued against him or her previously or from another jurisdiction (if known).
____ destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.
____ engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.
Domestic Violence
Importantly for a victim, the language of this statute contains the catchall: “or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence”. This allows an individual to pursue protection before any physical action takes place.

However, Courts have ruled that although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the “reasonable cause” alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well. Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999). Absent this objective reasonableness, a petitioner’s belief is unsubstantiated speculation that does not support the entry of an injunction. See id. at 615-16. An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. See Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011); Gustafson v. Mauck, 743 So.2d 614 (Fla. 1st DCA 1999); Young v. Smith, 901 So.2d 372 (Fla. 2d DCA 2005); Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001).

This statute provides important considerations in seeking an injunction for protection for domestic violence. Domestic violence can take many forms. Many communities provide safe, temporary housing for victims of domestic violence (and many also allow the victim to bring their children). The University of Florida College of Law has an Intimate Partner Violence Assistance Clinic (IPVAC), where victims can also gain assistance in seeking an injunction.

Photos in this blog are courtesy of: 3.bp.blogspot.com