Protective Injunction for Sexual Violence Defense Attorneys in Miami, Florida (FL)
Defending Against Sexual Violence Injunctions
What is an injunction?
In Florida, an injunction, also referred to as a “protective order,” a “protective injunction,” or a “restraining order,” is an order issued by the court that requires an individual to do or not do certain acts. If a person does not comply with the terms of the injunction, he or she may face both criminal and civil penalties, including imprisonment, monetary fines and being held in contempt of court.
There are five types of injunctions in Florida, including:
- Sexual violence
- Domestic violence
- Repeat violence
- Dating violence
How are each of the above types of injunctions similar?
- The petitioner is the individual who files the petition for the injunction. The respondent is the individual against whom the injunction is sought.
- The petition is a sworn document, which means that it must be signed in front of the court clerk or a notary.
- The judge may issue a temporary injunction prior to the hearing date.
- The temporary injunction is in effect until the hearing occurs.
- The local county sheriff often serves the petition on the respondent.
- A hearing can be scheduled, even if the temporary injunction was denied by the judge.
- The respondent is entitled to receive a notice of the hearing.
- Both the respondent and petitioner can bring forth witnesses to testify on their behalf at the injunction hearing.
- After the hearing, a judge may choose to issue a permanent injunction.
- A permanent injunction is in effect until it is modified or at the time when it expires, if applicable.
- If the respondent does not comply with the terms of the permanent injunction, he or she can face serious legal repercussions, including imprisonment, monetary fines, and being held in contempt of court.
What makes a sexual violence injunction unique?
- Sexual violence is defined as a lewd or lascivious act upon or in the presence of an individual under the age of sixteen; sexual battery; sexual performance by a child; luring or enticing a child; or other sexual act that is attempted or committed.
- The petitioner must cooperate with law enforcement after a report of sexual violence has been made.
- Protects the petitioner from the respondent who was in prison for sexual violence and whose term has expired or is about to expire within 90 days.
- The victim, the parent, or guardian of a child (a minor under the age of eighteen) may file a petition for sexual violence.
- Respondent may be required to surrender guns and ammunition.
What counts as sexual violence?
Sexual violence covers a broad range of sexual acts that occur against the other person’s will. These acts may include:
- Lewd or lascivious acts committed upon (or in the presence of) a person younger than 16
- Sexual assault and/or battery;
- The sexual performance by a child;
- Luring or enticing a child; and/or
- Any other forcible felony whereby a sexual act is committed or attempted.
Who can file a sexual violence restraining order in Miami-Dade County?
In the State of Florida, victims of sexual violence or the legal guardian(s) or parent(s) of a child who is a victim of sexual violence may file a petition. There are two steps that a petitioner must follow before the judge will approve a sexual violence injunction. First, the petitioner must report the sexual violence to law enforcement. And, he or she must cooperate with law enforcement in all proceedings arising from the sexual violence. A sexual violence injunction can profoundly affect the respondent’s life in several ways, which is why the courts are hesitant to issue an injunction. Essentially, the petitioner must meet his or her burden of proving that he or she has been the victim of sexual violence before a judge will issue an injunction against the respondent.
How can a sexual violence injunction be dismissed, vacated, modified, dissolved, changed, or removed once it is effective?
A sexual violence injunction can only be dismissed, vacated, modified, dissolved, changed, or removed through the court. In order for a person to obtain relief from a sexual violence injunction, he or she must demonstrate that the facts giving rise to the original injunction are no longer in existence such that continuing its terms would serve no valid purpose.
How does a victim of sexual violence obtain a sexual violence injunction?
Under Florida law, the petitioner must file a Petition for Protection Against Sexual Violence in order to obtain an injunction. A judge typically reviews the petition within a few hours after it is filed. If the judge decides that a temporary injunction is warranted, he or she will approve it, which shall remain in effect until the hearing date. At this stage, the judge does not determine the veracity of the allegations raised in the petition, as this is examined at the hearing. If a temporary injunction is approved, the respondent receives notice of the hearing and he or she must vacate the premises if it is shared with the petitioner. The sheriff typically allows the respondent to gather his or her personal belongings.
The next step in the process is called a “return hearing,” which typically occurs within fifteen days of the filing of the petition. During the hearing, the presiding judge decides whether or not to grant the sexual violence injunction against the respondent.
What occurs at a sexual violence injunction hearing?
When a petitioner files a petition, the court may schedule a hearing, even if the judge denies the temporary injunction. During the hearing, the petitioner has the burden of proving that a sexual injunction is warranted. Specifically, the petitioner must present evidence to establish that he or she is entitled to a sexual violence injunction. The petitioner may bring witnesses, law enforcement, and additional evidence to support his or her allegations.
The respondent can also testify and submit evidence to support his or her case. Such evidence may include witnesses and documentation. Once all of the evidence has been presented to the court, the judge then renders a determination as to whether to grant or deny a sexual violence injunction.
What occurs if the respondent violates the sexual violence injunction?
If the respondent violates the sexual violence injunction, he or she may face criminal and civil charges, including jail time, monetary fines, and being held in contempt of court.
Under what circumstances can a sexual injunction be extended?
A sexual violence injunction can be extended as long as the request for extension is pursued prior to when the injunction expires. In rendering a determination as to whether to extend sexual violence injunction, the judge does not need to receive evidence of additional violence. Instead, the court may consider the facts and circumstances that warranted the original injunction, as well as the subsequent actions of the respondent that puts the petitioner in fear of his or her safety.
Frequently asked questions about sexual violence injunctions in Florida
What occurs when a person files a sexual violence injunction?
When the petitioner files a petition, the judge determines whether to deny the petition and schedule a hearing, grant the petition and schedule a hearing, or deny the petition without granting a hearing.
A temporary injunction prevents the respondent from having contact with the petitioner until the hearing date. At the hearing, both the respondent and petitioner cam present evidence to support their cases. If the claims brought forth in the petition are false, misrepresented, or exaggerated, the attorney for the respondent can seek to have the injunction denied and the petition dismissed.
What happens if the respondent does not challenge the petition?
Should the respondent not challenge the petition, this means that the petitioner can bring forth his or her case without the respondent to refute the allegations that have been raised against him or her. Given that the implications of an injunction are serious, it is essential that a respondent attend the hearing and challenge the allegations.
What happens if the court grants the sexual violence injunction after hearing?
If the court grants the sexual violence injunction, he or she will not be able to return to a shared residence. Once the injunction is in effect, the respondent must surrender all ammunition and firearms to law enforcement. The respondent will also be prohibited from being present in places where the petitioner is typically located, such as his or her home, place of employment, and place of worship. The judge can also order the respondent to seek mental health treatment at his or her own expense.
How long does a sexual violence injunction remain in effect?
A sexual violence injunction is in effect until such time that the court changes it or when it expires, if applicable. An injunction can be effective for many years, depending upon the facts and circumstances of one’s case. If the injunction is set to expire, the petitioner can return to court to seek an extension prior to its expiration.
The sexual violence protective order specifies that there is to be "no contact." What does this mean?
“No contact” means that there cannot be any communication between the respondent and the petitioner, whether indirect, direct, or through another person such as a family member or friend.
How is a sexual violence injunction violated?
Of the respondent contacts the petitioner, or threatens to harm him or her, then he or she will be deemed in violation of the sexual violence injunction. There are cases where it is not clear whether the terms of the sexual violence injunction have been violated. For example, the respondent may innocently send a non-threatening text or email to the petitioner or to a family member or friend. Or, if the respondent happens to be too close to a prohibited place where the petitioner frequents, such as a place of worship, store, or home. If reported, the respondent will be deemed in violation of the injunction, which is why it is critical for the respondent to read and understand all of its terms.
What will happen if an individual violates a sexual violence injunction?
If the respondent violates a sexual violence injunction, he or she is committing a crime, which can be charged as either a felony or misdemeanor, depending upon the circumstances. This means that it is possible that the respondent can be sent to prison and be forced to pay a hefty monetary fine. The respondent may also face other consequences as well, such as being held in contempt of court.
Are sexual violence injunctions public records?
Yes. Injunctions are part of the public record, meaning that they can be accessed by anyone who conducts a background search.
Can a person appeal a sexual violence injunction?
Yes, it is possible to appeal an injunction, even if it has expired. An attorney is in the best position to advise whether a respondent should or should not file an appeal of his or her case.
Will an expired sexual violence injunction still affect me?
An expired sexual violence injunction is part of the public record and cannot be expunged. Meaning, that it is possible for the injunction to continue to adversely affect the respondent. Specifically, he or she may have difficulty in finding housing, getting a job, or obtaining a loan. He or she may also be permanently barred from purchasing and owning a firearm. That is why it is critical for the respondent to appeal his or her case should a permanent injunction be issued.
Do I need a criminal attorney to represent me?
While it is not a legal requirement to have an attorney, it is nonetheless critical that you work with a seasoned Florida criminal defense attorney who is familiar with the applicable laws as well as the ins and outs of the court system. A sexual violence injunction carries with it very serious legal consequences. Only an attorney is in the best position to represent your interests and develop the strongest defense strategy possible.
During the hearing, a skilled Florida criminal defense attorney will seek to challenge the allegations raised by the petitioner and provide the court with an alternative account of why the petition was filed in the first place. For example, a petitioner may seek to falsely file a petition against the respondent in order to harass the respondent, obtain custody of the parties’ child or children, gain an upper hand in a divorce case, and negotiate more favorable terms in a contract or other matter.
What are the consequences of a sexual violence injunction?
There are several consequences associated with a sexual violence injunction, which are as follows:
- Firearms and ammunition must be surrendered. If a sexual violence injunction has been issued against the respondent, he or she must surrender all firearms and ammunition to law enforcement.
- Damage to one’s financial livelihood and welfare. Since a sexual violence injunction is part of the public record and cannot be expunged, anyone who conducts a background search on the respondent can find out about his or her criminal background. This may result in lost job opportunities and difficulty in obtaining a bank loan.
- No further contact with the petitioner. Once a sexual violence injunction has been set into place, even innocent contact or contact made by mistake is in violation of its terms. In these set of circumstances, the respondent could be arrested and charged with a misdemeanor or felony, which carries with it serious legal consequences including jail time.
Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!
Facing the prospects of a sexual violence injunction in Miami, Florida can be frightening, as an active injunction can negatively affect your life in a multitude of ways. When you work with a seasoned Miami criminal defense attorney at Musca Law, he or she will help you to challenge a sexual violence injunction to the fullest extent of the law. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. Our attorneys are skilled, experienced, tenacious, and relentless when it comes to defending our clients. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.