Florida Restraining Orders

  1. Restraining Orders – Overview

    1. Introduction

      Victims of nonconsensual online publication of sexually explicit material will likely be able to obtain a restraining order to prohibit the perpetrator from continuing to harass the victim online. In Florida, a restraining order is known as an “injunction for protection”; it is a civil court order restricting individuals who have allegedly committed acts or made threats of violence against the victim. “Violence” is defined as 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 another person.”1 Florida law separates injunctions for protection into four separate categories: (1) domestic; (2) repeat; (3) dating; and (4) sexual.

      Although obtaining an injunction is a civil process, violating an injunction is a crime. In order for the trial court to issue an injunction, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in “imminent danger” of becoming the victim of an act of violence.2

      The judge will consider the petition and will take one of three paths: (1) initiate a temporary injunction; (2) determine that the allegations are insufficient for a temporary injunction, but find that a hearing is merited; or (3) determine that the situation does not meet the requirements for a temporary injunction, or a hearing. In the first two instances, the court will schedule a hearing within seven to fifteen calendar days of the date the petition was filed, and serve the respondent with notice. At the hearing, the judge will determine whether to grant the petitioner a “Final Judgment” based on testimony from the victim, the respondent, and any eyewitnesses; a final judgment may be indefinite, or may have a set expiration date. Either party may request changes to the final order, and if the opposing party does not comply, the aggrieved party may file a motion for civil contempt, which will be considered by a judge.

      A WMC victim would be able to petition for a protective order in any case in which he or she can show that he or she is being repeatedly victimized by a defendant. A violation of such an order could lead to serious penalties for the defendant.

    2. Types of Restraining Orders

      1. Domestic Violence

        Domestic violence can occur where a victim has reasonable cause to believe he or she is in imminent danger of becoming a victim between individuals “who are spouses, former spouses, or persons related by blood or marriage who are residing or have resided together as a family, or individuals who are residing together or have resided together as if family, or individuals who have a child in common.”3 Form 12.980 is available through a Florida web-site, and the same form is used for all restraining orders, no matter what type.4 Florida takes domestic violence very seriously, and the court is expressly required to “consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released,” exercising caution when necessary.5 The minimum term of imprisonment for domestic violence convictions is five days in county jail, and the court may also sentence a defendant to probation, community control, or an additional period of incarceration.6

      2. Repeated Violence

        Repeat violence means “two acts of violence or stalking” on two separate occasions, one of which must be within the past 6 months. These types of injunctions may be most appropriate for “non-domestic”/”non-dating” relationships, and the form is available online.

      3. Dating Violence

        Dating violence is “violence or stalking” that has occurred or that causes the victim to believe they are in imminent danger of becoming a victim, between individuals who

        (1) have been in a dating relationship within the past six months;

        (2) have expected sexual involvement.7

      4. Sexual Violence

        “Sexual Violence” is any one incident of “sexual battery, . . . a lewd or lascivious act,. . . committed upon or in the presence of a person younger than 16 years of age; luring or enticing a child. . . ; sexual performance by a child; any other forcible felon 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.”8

    3. Text of Statute(s)

      1. Fla. Stat. § 784.046 – Action by victim of repeat violence, sexual violence, or dating violence for protective injunction, dating violence investigations, notice to victims, and reporting; pretrial release violations; public records exemption.

        (1) As used in this section, the term:

        (a) “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.

        (b) “Repeat violence” means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.

        (c) “Sexual violence” means any one incident of:

        (1) Sexual battery . . .

        (2) A lewd or lascivious act . . . committed upon or in the presence of a person younger than 16 years of age . . .

        (3) Luring or enticing a child . . .

        (4) Sexual performance by a child . . .

        (5) Any 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.

        (d) “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.

        (2) There is created a cause of action for an injunction for protection in cases of repeat violence, there is created a separate cause of action for an injunction for protection in cases of dating violence, and there is created a separate cause of action for an injunction for protection in cases of sexual violence.

        (3) . . .

        (4) (a) The sworn petition shall allege the incidents of repeat violence, sexual violence, or dating violence, and shall include the specific facts and circumstances that form the basis upon which relief is sought. . .

      2. Fla. Stat. § 741.28 – Domestic violence; definitions.

        (1) “Department” means the Florida Department of Law Enforcement.

        (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.

        (4) “Law enforcement officer” means any person who is elected, appointed, or employed by any municipality or the state or any political subdivision thereof, who meets the minimum qualifications established in s. 943.13 and is certified as a law enforcement officer under s. 943.1395.

    4. Cases

      Research is ongoing.

    5. Practice Pointers

      Nothing relevant at this time.

    1. Fla. Stat. § 784.046(1)(a). 

    2. Fla. Stat. § 741.30(1)(a); see also Moore v. Hall, 786 So. 2d 1264, 1266 (Fla. Dist. Ct. App. 2001); Gustafson v. Mauck, 743 So. 2d 614, 615 (Fla. Dist. Ct. App. 1999). 

    3. Fla. Stat. § 741.28(2) and (3). 

    4. Florida Form 12.980, http://www.pinellasclerk.org/aspinclude2/12-980a-D-VPETITION%20.pdf (last visited July 18, 2012). 

    5. Fla. Stat. § 741.2902(1) (setting forth legislative intent). 

    6. Fla. Stat. § 741.283. 

    7. Fla. Stat. § 785.054(1)(d). 

    8. Fla. Stat. § 784.046(1)(d). 

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