Protective Injunction for Sexual Violence Defense Attorneys in Florida
Defending Against Sexual Violence Injunctions
What is an injunction?
In Florida, an injunction, also known as “protective injunction,” “protective order,” or “restraining order,” is an order issued by the court that compels a party to do or not do certain acts. If a person does not adhere to the terms of the injunction issued against him or her, he or she can face both civil and criminal penalties, which may include jail time and monetary fines. The individual can also be held in contempt of court.
There are five types of injunctions in Florida, including:
- Sexual violence
- Domestic violence
- Stalking
- Repeat violence
- Dating violence
How are each of the above types of injunctions similar?
- The respondent is the party against whom the injunction is sought. The petitioner is the party who files the petition for the injunction.
- The petition must be sworn, meaning that it must be signed in front of a notary or court clerk.
- The judge may order a temporary injunction prior to when the hearing is held.
- The temporary injunction is effective until the hearing occurs.
- The local sheriff typically serves the petition for protection against sexual violence on the respondent.
- A hearing can take place even if the temporary injunction was denied by the judge.
- The respondent is entitled to receipt of notice of the hearing.
- Both the petitioner and respondent can have witnesses testify on their behalf at the hearing.
- Following the hearing, a judge may decide to issue a permanent injunction.
- A permanent injunction is effective until the court modifies it or it expires.
- If the respondent does not adhere to the terms of the permanent injunction, he or she can face severe consequences, including extended prison time and steep monetary fines.
What makes a sexual violence injunction unique?
- Sexual violence includes the following: 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 fully cooperate with law enforcement following a report of sexual violence.
- Protects the petitioner from the respondent who was imprisoned for sexual violence and whose term has expired or is about to expire within 90 days.
- The victim, the parent, or guardian of a minor (child under the age of eighteen) residing at home may file a petition for protection against sexual violence.
- Respondent may be ordered to surrender ammunition and guns.
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 injunction?
In Florida, victims of sexual violence or the parent(s) or legal guardian(s) of a minor who is a victim of sexual violence may file a petition. Those who are seeking an injunction must follow two steps before the judge will issue a sexual violence injunction. First, the petitioner must have reported the sexual violence to law enforcement. He or she must also cooperate with law enforcement in all proceedings arising from the sexual violence. A sexual violence injunction can have a profound effect on a respondent’s life in many ways, which is why courts are hesitant to grant injunctions. In essence, the petitioner must meet his or her burden of proof 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 vacated, modified, dismissed, removed, dissolved, or changed through the court. In order for a party to obtain relief from a sexual violence injunction, he or she must demonstrate during a subsequent hearing that the facts giving rise to the issuance of the 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?
In Florida, the petitioner, in order to seek a sexual violence injunction, must file a Petition for Injunction for Protection Against Sexual Violence. Typically, a judge reviews the petition within a few hours after it is filed. If the judge determines on its face that the facts alleged in the petition are egregious enough to warrant an injunction, he or she will issue a temporary injunction that will remain in effect until the hearing. At this juncture, the judge does not determine whether the facts of the petition are truthful or false, as this decision is rendered during the subsequent hearing. If a temporary injunction is granted, the respondent receives notice of the same and must vacate the premises, if the parties live together. The sheriff usually allows the respondent to gather his or her personal effects.
The next step in the process is called a “return hearing,” which usually occurs within a maximum time period of fifteen days. This hearing is the moment of truth where the court renders a determination as to whether to deny or grant a permanent injunction against the respondent.
What occurs at a sexual violence injunction hearing?
When a petitioner files a petition, the court may, in its discretion, schedule a hearing, even if the temporary injunction was denied. During the hearing, the petitioner has the burden of proof in terms of establishing that he or she is entitled to a permanent injunction. Specifically, the petitioner must bring all necessary documents to the court in support of his or her case. The petitioner may also bring witnesses, police officers, and additional evidence to support his or her sexual violence claim.
The respondent can also testify and bring forth all evidence necessary, including witnesses, to dispute the allegations against him or her. Both parties have a right to cross examine each other as well as any witnesses that are called. After all of the evidence has been presented, the judge determines whether to grant or deny a permanent injunction.
What occurs if the respondent violates the sexual violence injunction?
If the respondent violates the sexual violence injunction, he or she will face criminal charges, which carry with it the potential for imprisonment and monetary fines.
Under what circumstances can a sexual injunction be extended?
A sexual violence injunction may be extended beyond their expiration date, as long as the request for extension is filed prior to whether the injunction expires. In rendering a determination as to whether the injunction should be extended, the court does not require a showing that new violence has occurred. Instead, the court may consider the circumstances that led to the imposition of the original injunction, as well as subsequent actions by the respondent that continues to cause the petitioner to have reasonable fear that the sexual violence will likely occur again in the future.
Frequently asked questions about sexual violence injunctions in Florida
What occurs when a person files a sexual violence injunction?
When a petition is filed, a judge renders a decision as to whether to (i) grant the petition and schedule a hearing within fifteen days; (ii) schedule a hearing after deny the temporary injunction; or (iii) outright deny the petition without granting a hearing.
A temporary injunction serves to prevent the respondent from having any contact with the petitioner for fifteen days after the hearing takes place. At the hearing, both the petitioner and the respondent can present their respective cases. If the claims raised in the petition are false, misrepresented, or exaggerated, the lawyer for the respondent will fight to have the injunction denied and the petition dismissed.
What happens if the respondent does not challenge the petition?
Should the respondent fail to challenge the petition, this means that the petition can bring forth his or her case without the presence of the respondent to refute the allegations against him or her. Because the implications of an injunction are serious, it is critical that a respondent attend the hearing and fight against the allegations raised in the petition.
What happens if the court grants the sexual violence injunction after hearing?
If the court grants the injunction against the respondent, he or she is barred from returning home to a shared residence, if applicable. Once the injunction is effective, the respondent must turn in to law enforcement any firearms and ammunition. The respondent may also be prohibited from being present in areas where the petitioner typically frequents, including his or her home, place of employment, school, or place of worship. The court can also order the respondent to attend intervention programs and/or counseling.
How long does a sexual violence injunction remain in effect?
An injunction that is permanent is in effect until the court modifies it or at the time when it expires, it is applicable. An injunction can last for several years, depending upon the circumstances of one’s case. Should the injunction set to expire, the petitioner can go back to the court and seek an extension as long as he or she does so before the date that the injunction is set to expire.
The sexual violence protective order specifies that there is to be "no contact." What does this mean?
“No contact” means that there should be no communication between the petitioner and respondent, whether direct, indirect, or through a third party such as a family member or friend.
How is a sexual violence injunction violated?
Should the respondent contact the petitioner, or threatens or harms the petitioner, then he or she has violated the terms of the sexual violence injunction. There are circumstances, however, where it is not clear whether an injunction has been violated. For instance, the respondent may send a non-threatening text or email to a family member or friend of the petitioner, or to the petitioner himself or herself. Or, if the respondent happens to be too close to a prohibited place where the petitioner frequents, such as a home, school, church, or store. 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 a person violates a sexual violence injunction, he or she is committing a crime, which can be charged as either a misdemeanor or felony. It is possible for the person to be imprisoned, incur monetary fines, and face other serious consequences.
Are sexual violence injunctions public records?
Yes. Injunctions are part of the public record, meaning that they can be visible to anyone.
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?
Since expired sexual violence injunctions are public record and cannot be expunged, it is possible for an expired injunction to continue to negatively and permanently affect the respondent’s life. This may result in the respondent having difficulty in finding suitable housing, obtaining a loan, or getting a job. He or she may also be permanently barred from owning and purchasing a firearm. This is why it is critical that a respondent pursue an appeal of a permanent injunction in order to avoid these harsh repercussions.
Do I need a criminal attorney to represent me?
A sexual violence injunction is way in which an individual is prevented from harassing or inflicting further sexual violence to another individual.
An injunction is meant to protect a person from harassment or violence, which constitute crimes in Florida. While it is not mandatory to have an attorney, it is critical that you hire a seasoned Florida criminal defense attorney who knows the applicable laws and the court system in order to zealously defend you to the fullest extent of the law.
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 many ways in which a sexual violence injunction can impact a respondent’s life. That is why it is important to have a Florida sexual violence defense lawyer by your side who can challenge the allegations raised in the petition. Some of the negative consequences associated with a sexual violence injunction are as follows:
- Damage to your financial welfare and livelihood. Since a sexual violence injunction is public record and is not subject to expungement, anyone who conducts a search on the offender can find out about his or her criminal history in this regard. This may result in the offender facing difficulties obtaining a loan and/or finding gainful employment or suitable housing.
- Firearms and ammunition must be surrendered. If an injunction has been issued against an individual, he or she must surrender all ammunition and firearms to law enforcement.
- No further contact with the petitioner. Once an injunction is in place, even contact that is innocently made or by mistake is in violation of its terms. In this set of circumstances, you could be placed under arrest and charged with either a misdemeanor or felony, depending upon the nature of the no contact violation.
Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!
Facing the prospects of a sexual violence injunction can be frightening, as an active injunction can negatively affect your life in a multitude of ways. When you work a seasoned Florida 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.