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Sexual Violence Injunctions in Florida

Victims of violence can seek the protection of Florida courts. Florida’s law of injunctions provides a safe harbor so that the victims of abuse and violence will suffer no more. Victims of sexual violence can ask the court for the same protections as other victims of violence. Tragically, what is intended as a means of protection from a predator for an unfortunate victim who has nowhere to turn has become a strategic weapon used by many as a method of exacting retribution for some slight.

Losing at an injunction hearing means more than simply receiving a piece of paper. The paper, which is a court order, substantially restricts a free person’s rights without a conviction by a jury of the individual’s peers, without conducting discovery, and with little more than the right to have notice of the order and the opportunity to argue against the injunction. Losing at an injunction hearing means the respondent (the “victim” is the petitioner) is perpetually subject to living according to the restrictions placed on the respondent by the court. Also, the respondent is subject to arrest for a claimed violation of the injunction.

Having an attorney who understands the stakes at hand and the potential consequences is indispensable. Such an attorney knows how to attack the petitioner’s allegations and vigorously defend the respondent’s rights to be free from governmental intrusion in his or her life.

The right to seek an injunction against sexual violence is granted by 784.06 of the 2019 Florida Statutes. In addition to granting relief against sexual violence, a victim can apply for protection from dating violence, repeat abuse, stalking, aggravated stalking, false imprisonment, battery, assault, and aggravated assault or battery.

Section 784.06 defines sexual violence as one event of sexual battery, lewd and lascivious acts committed upon a person under sixteen or in the presence of a person sixteen-years-of-age or younger, enticing or luring a child, sexual performances by a child, or any other felony committed by force wherein a sexual act was committed or attempted. The judge can issue the order for injunctive relief from sexual violence even if the prosecuting authority declines to press charges or that the charges were dismissed or never filed.

A parent of a minor child has the right to petition the court for protection for their child if the child is a minor. A child’s guardian has the right as well. However, the law imposes certain restrictions upon a petitioner seeking protection from sexual violence. The petitioner must report the allegations of sexual violence to the law enforcement authorities, and the petitioner or victim, if not the petitioner, must cooperate with the authorities, including the prosecutor, even if the charges were reduced, dismissed, or not filed. The victim or a representative acting on that individual’s behalf can also file a petition for an injunction if the respondent was convicted of allegations of sexual violence, and the respondent is within 90 days of release from incarceration.

The petitioner must complete the forms provided by the clerk’s office. The petitioner must swear or aver, under the pains and penalties of perjury, all of the facts supporting the claim for relief. The petitioner must set out specific allegations. If a parent or guardian is filing on a child’s behalf, then the statute demands that the petitioner have affidavits from an eyewitness to the events or have witnessed the events personally if the respondent is a parent, guardian, or stepparent of the minor child. Alternatively, if the respondent is not a parent, stepparent, or guardian, then the petitioner must hold a reasonable belief that the child is a victim of sexual violence.

The court fixes a time for the return hearing. The statute expresses a preference for the earliest possible time, provided that the respondent receives a copy of the temporary injunction, if granted, and has notice of the date and time of the court hearing. A judge can grant an ex parte temporary injunction provided that the victim appears to be in immediate and present danger of violence. The judge can make all orders necessary for the protection of the petitioner in the temporary injunction. When deciding whether the court should issue a temporary injunction, the court reviews all of the pleadings but does not hear any evidence unless the respondent appears in court to defend against the allegations.

A temporary injunction is only valid for fifteen days from the date issued. A full hearing should be held on or before the day the temporary injunction expires. The court can allow a motion to continue the final hearing if the moving party provides “good cause” as to why the final hearing should not take place as scheduled.

The court has wide latitude when ruling on an injunction against sexual violence in Florida. At a minimum, the court will order the respondent to refrain from committing additional acts of sexual violence. The court can also order the local law enforcement officers with jurisdiction over the case to perform duties consistent with the order. An injunction is valid until a party successfully moves to dissolve it. Either party may ask the judge to modify the order as well.

The order must indicate that any law enforcement officers with the power of arrest in Florida can enforce the injunction. The order must also state that the court had jurisdiction over the case, and the respondent had both sufficient notice and a right to be heard on the matter so that the respondent’s due process rights were protected. Additionally, the injunction shall declare that the order of the court may be enforced in any county in the state of Florida and not the county from which the order issued exclusively.

In these situations, the respondent should have counsel to defend against injunctions for sexual violence. A person who faces these allegations is in a perilous situation and will need someone to advocate for him or her. Otherwise, the respondent could make a statement against his or her penal interest and incriminate himself or herself in a crime that could send them to prison for a very long time.

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