Written by Adriana H. Quirantes, Esq.

Best practices for safeguarding the interests of the victim and protecting the rights of the defendant and the differences between criminal stay away orders and civil domestic violence injunctions.

Injunctions are powerful legal tools that aim to maintain order and protect individuals.  Criminal Stay Away Orders are meant to achieve the same goals in a criminal context. While their overarching purpose is to prevent harm, the key distinction lies in the nature of the proceedings and the parties involved.

It is important to recognize that anyone, regardless of gender, can be a victim of domestic violence.  Domestic Violence can affect individuals of any gender.  It can be in the form of physical, emotional, psychological, or economic abuse, as well as coercive control.  One challenge in understanding the true prevalence of domestic violence is underreporting, social stigma and cultural norms.  Many victims, regardless of gender, may not come forward due to fear, shame, or other barriers. Cultural and societal norms can influence whether domestic violence is reported or acknowledged.  In some cases, gender roles or societal expectations can also affect reporting. Research and surveys on domestic violence often show a complex picture. It is crucial to encourage all victims to seek help and report abuse, regardless of their gender, and to promote awareness and education to prevent domestic violence and support survivors.

However, it is imperative that the legal system maintains a balance between protecting the petitioner/victim’s interests and upholding the rights of the respondent/defendant, ensuring justice and fairness prevail in both criminal and civil injunction cases.

Although the courts take allegations seriously and prioritize the safety of all parties involved, especially when it comes to issues of abuse and potential harm to children, the court must also recognize the possibility of false accusations and may consider various factors to determine the credibility of the allegations. Motive is a critical factor in assessing the credibility of any allegations, and it becomes particularly significant when there are legal consequences at stake, such as in divorce and paternity disputes.

In the context of divorce or custody battles, parties may be engaged in intense legal and emotional struggles.  Accusations of domestic violence can significantly impact decisions related to property division, spousal support, and parental responsibility. A motive to gain a strategic advantage in these matters may prompt individuals to make false claims. False accusations in court can have legal repercussions.  In some jurisdictions, individuals who knowingly present false information or make false statements under oath may face perjury charges or other legal consequences.

In this article, we will explore the differences between criminal stay away orders and civil injunctions, focusing on the best practices for safeguarding the interests of the victim and protecting the rights of the defendant.

SAFEGUARDING THE VICTIM

Two Layers of Court Intervention:

Stay away orders are issued in criminal cases to safeguard the victim from further harm during the pendency of the case or during any probationary period, thereafter. These orders typically arise in cases involving domestic violence, battery, harassment, stalking, or other criminal offenses.

Their primary focus is on ensuring the safety and well-being of the victim. Criminal stay away orders are often issued prior to the release from custody of a defendant in a criminal domestic violence case.

Criminal Stay Away Orders are subject to strict enforcement, ensuring that the defendant is kept at a distance from the victim to prevent further harm. Violation of a criminal stay away order can result in the alleged perpetrator’s arrest for a first-degree misdemeanor and contempt of court, plus further penalties, including fines, probation violations, and jail time.

Civil injunctive relief is another layer of protection. In a civil injunction case, the court typically issues an order requiring the defendant to either stop certain actions (prohibitory injunction) or take specific actions (mandatory injunction). This includes the defendant having to leave his own house or rented premises and stay 500 feet, or another distance determined by the court, away from the petitioner, not contact the petitioner, either directly or indirectly or post anything relating to the petitioner on social media. This ensures that the respondent is kept away from the victim’s home, employment, and other places frequently visited such as grandparent’s homes, etc., as well as away from the children’s schools, daycare centers and babysitters (when children are involved.

The victim may also consider seeking a civil restraining order to protect themselves (and/or the children) for a longer period of time in the event the criminal case is dismissed either by way of a nolle prose (meaning a dismissal of the charges by the State) or by way of dismissal upon the successful conclusion of the Pre-Trial Program by the defendant (such as batterer’s intervention program/anger management courses, usually a 26 week program). A restraining order may limit the injunctive relief to a specific amount of time, from months to years, but may also be awarded for an indefinite period of time depending on the particular circumstances and severity of each case.

Also, in a civil injunction, when children are involved, the Court will establish temporary child support, parental responsibility and a time-sharing schedule including provisions such as where the exchanges will take place, who will participate in the exchanges, and the frequency of the exchanges.  In a criminal case, the victim may seek restitution such as reimbursement for medical expenses or the cost of broken property.

A both the criminal and civil arenas, the defendant/respondent may not possess a firearm during the pendency of an injunction, and any firearm, owned or possessed, must be turned in to the police department for safekeeping during any injunction or stay away order period.

Process and Factors involving arrests for domestic violence:

When a domestic dispute or violence is reported, the police will respond to assess the situation, ensure the safety of all parties involved and potentially make arrests if there is evidence of a crime.  It is in the discretion of the police officer to determine who was the aggressor and what crime will be charged, if any.

The officers will assess the situation to determine if there is an immediate threat to anyone’s safety. They may separate the parties involved to prevent further harm and interview the parties and any witnesses to gather information about what transpired.

The police may collect evidence, take photographs, and document the scene. The police will interview the parties involved, witnesses, and gather information about what transpired. Many times, it is a battle of “he said / she said” situation, so it is up to the officers to determine the veracity of the parties at the incident and ask similar questions in various forms to determine the truthfulness of the statements.

The officers will also look for physical evidence such as physical injuries (purple or blue bruises, scratch or red marks, bleeding, torn clothing; property damages, broken items or makeshift weapons such as pots/pans, shoes out of place, furniture on its side, broken plates/drinking glasses or other household items) in the vicinity of the incident which may have been used to harm the victim. They will also seek any photos or videos including security camera footage.

The children will also be questioned if the officer believes the child is old enough to tell them what they witnessed. Sometimes written statements and drawings are taken or reviewed by the police.

Based on their assessment and evidence, the police will decide whether to make an arrest. The police may also provide information on resources available to the victim of domestic violence, such as shelters, counseling services and legal assistance. They may also refer the case to a domestic violence unit for further investigation.

Usually, the person that calls 911 will be labeled the victim.  However, that is not always the case.  The police officer at the scene may arrest “the caller” if they determine that the evidence collected at the scene is sufficient to charge the caller with the crime. Sometimes both parties may be charged with different crimes.

If an arrest is warranted, the police officer will take the alleged perpetrator into custody. Also, if there are illegal substances, weapons or evidence of any illegality, the police may also charge the party with separate crimes unrelated to the domestic violence incident.

What should the victim do once a domestic violence action has been filed:

(a) Gather and collect the names, email addresses, telephone numbers and physical address(es) of all witnesses to the alleged incident and any prior similar incident.  Also collect as much information as possible about the crime, the perpetrator, and any evidence you may have.  Make copies of the lists of witnesses and pertinent documents and provide it to the prosecutor.

(b) Do not contact the alleged perpetuator, directly or indirectly via family and friend.  Seek shelter if you believe you and/or your children may not be safe at home.

(c) Consider seeking a civil injunction to either protect you in the event the criminal case gets nolle prossed or if, the defendant opts for the Pre-Trial Program which is completed after 26 weeks, to extend the time of the injunctive relief.

(d) Retain independent counsel should you wish to discuss other alternatives or protect yourself from any matter you may be worried about such as self-incrimination, employment matters, immigration, or any other matter which may be concerning you which is, in some form, connected to the domestic violence criminal case.

PROTECTING THE RIGHTS OF THE DOMESTIC VIOLENCE DEFENDANT / RESPONDENT

The defendant’s (and the respondent’s) rights must be respected while ensuring the victim’s safety.  Defendants/Respondents have a right to due process, including notice and an opportunity to be heard in court.

Protecting a person who is facing both criminal charges, relating to a domestic violence criminal case, and a civil domestic violence case, can be a complex legal challenge, as these are distinct legal proceedings with different objectives and standards of proof.

Burden of Proof:  

One of the most important distinctions between criminal and civil actions is the burden of proof.  The prosecution in a criminal domestic violence case bears the burden of proving the defendant’s guilt “beyond a reasonable doubt,” which is a high standard of proof.

In a civil injunction case, the burden of proof is lower than in a criminal case. The party seeking the injunction generally needs to prove their case “by a preponderance of the evidence”, which means it is more likely than not that the alleged conduct occurred, and that the petitioner is in fear of imminent bodily harm from the respondent.

The difference in the burden of proof may result in a finding of not guilty in the criminal case while in the civil case may result in a finding of just cause for the entering of a civil restraining/injunction order.

However, if found guilty in the criminal case, then any testimony in the criminal case, as well as the finding of guilt, may tarnish the civil case resulting in the entering of a civil injunction. Alternatively, if the criminal charges are nolle prossed, dismissed or if there is a finding of not guilty, then the criminal arrest may not necessarily adversely affect the civil injunction hearing.

“To Testify or Not Testify” is the question:

Many times, a defendant charged with a felony or misdemeanor in a criminal domestic violence case will be offered a plea deal. If a defendant in a criminal case takes a plea deal involving Pretrial Diversion (PTD) or Pretrial Intervention (PTI), it’s important to consider the implications of testifying in a concurrent civil case.

The decision to testify in the civil case should still be made carefully, taking into account several factors as detailed below.  However, a decision of this nature should be made in consultation with legal counsel who can provide a comprehensive assessment of the situation and its potential consequences.

1. Terms of the Plea Deal: Review the terms and conditions of the PTD/PTI agreement carefully. Some agreements may contain provisions that restrict or advise against the defendant’s involvement in concurrent civil litigation.
2. Legal Advice: The criminal attorney and the civil attorney, if different, should consult with each other, to understand how testifying in the civil case might impact the PTD/PTI, or have other potential legal consequences.
3. Fifth Amendment Rights: Consider whether the testimony in the civil case could potentially incriminate the defendant or violate the defendant’s Fifth Amendment rights. The same principles of self-incrimination apply whether you’re in a criminal or civil proceeding.  In many cases, it may be prudent for a defendant facing both civil and criminal proceedings to exercise their Fifth Amendment right to remain silent in the civil trial, especially if there is a genuine risk of self-incrimination.
4. Protection of Rights: A criminal defense attorney may advise the Defendant to exercise his/her right to remain silent in the civil case to protect their rights and best interests in the criminal case.  The Defendant may need to take the Fifth Amendment, even if only to protect the plea deal he/she made with the prosecutor.
5. Consistency with Plea Deal: Ensure that any testimony provided in the civil case is consistent with the terms and conditions of the PTD/PTI or plea agreement. Any inconsistencies could potentially impact the criminal case.
6. Coordination with Legal Counsel: Coordinate the decisions with both the criminal defense attorney and the attorney in the civil case to ensure that the Defendant’s actions are aligned with his/her legal interests in both proceedings.
7. Impact on Civil Case: Evaluate the importance of the testimony in the civil case. If your testimony is crucial to the civil case, such as for the purposes of obtaining time-sharing with the Defendant’s child, and is unlikely to harm your criminal case, you may decide to testify.
8. Settlement Considerations: If there’s a possibility of settling the civil case without your testimony, it may be worth exploring such an option.

Underlying reasons behind a false claim of domestic violence:

In the context of divorce and paternity actions, obtaining a temporary restraining order based on false allegations might be seen as a strategy to gain immediate advantages.  This could include exclusive use of the home, temporary time sharing of children, or restrictions on the accused party’s time-sharing rights.

A party may have motive to fabricate domestic violence allegations to secure sole possession of the marital home or other valuable assets.  By portraying the other party as a threat, they may seek exclusive rights to certain properties during the divorce proceedings.  Those properties may include securing important documents left at the home or home office including the home computers and information therein; securing jewelry, artwork and other possessions found in the home such as cash money in the safety box hidden in the home, and so much more.

False accusations can be especially damaging in parenting and time sharing disputes.  Allegations of abuse may influence the court’s decisions regarding parental rights and time sharing with the children. A motive to alienate the children from the accused parent could drive false claims of domestic violence.

If the court determines that the alleged victim has made false accusations with the intent of gaining an unfair advantage, there can be serious consequences for their credibility and may be facing perjury charges and other legal consequences. This will also impact the court’s perception of their overall trustworthiness and honesty throughout the legal proceedings and the entire divorce and custody battle may take a complete 360 degree turn against the accuser.

Considerations and Alternative Possibilities in the context of domestic violence, divorce and child custody battles:

A formal domestic violence injunction can have significant repercussions on the accused party’s employment, reputation, and business, which will have a ripple effect on the party’s ability to pay alimony and child support.  Negotiating an Agreed Stay Away Order in the Family Division Case and voluntarily dismissing the civil injunction case without prejudice, may mitigate these potential consequences while still providing protection for the victim, to a certain degree, and still allows court intervention through enforcement and contempt actions.

The parties, through counsel, may attempt to strike a balance between protecting the victim’s rights and safety and preventing severe repercussions. Although an agreed order in the Family Division does not afford the victim the same level of protection than an injunction in the Domestic Violence Division, Family Division agreed orders are often more flexible and can be tailored to the specific circumstances of the case and may include all sorts of specifications and conditions pertaining to time sharing, financial support, and parenting plan. This flexibility allows the parties in a family law case, where the dynamics between the parties are complex and multifaceted, to address the unique needs and concerns of the parties.

Negotiating the same kind of resolution in the criminal case, when the parties are also involved in a divorce or paternity action, may be more difficult, but may be attainable.

In Florida, like in many other jurisdictions, the decision to pursue criminal charges ultimately rests with the state prosecutor, not the victim. The state attorney’s office has the authority to proceed with criminal charges, including those related to domestic violence, even if the victim does not want to press charges or cooperate with the prosecution. This is based on the understanding that domestic violence cases often involve complex dynamics, power imbalances, and potential coercion that could influence a victim’s willingness to cooperate.

Prosecutors generally consider the public interest and safety when deciding whether to pursue criminal charges. Domestic violence cases are often viewed as crimes against the state, not just against the individual victim. Therefore, the state may choose to proceed with charges to protect the community and prevent further harm.

While a victim’s cooperation is valuable in building a case, prosecutors can still move forward if there is sufficient evidence and other witnesses to support the charges. This may include police reports, medical records, witness statements, or other forms of evidence.  However, if a victim is unwilling to cooperate, it can present challenges to the prosecution. Lack of cooperation may result in difficulties in securing witness testimony and other evidence, which could impact the strength of the case. In which case the prosecutor can use subpoena power to compel the victim to testify in court.

While an Affidavit of Non-Prosecution is a document in which the victim expresses a desire not to pursue criminal charges, its impact on the prosecution of a domestic violence case can vary. The signing of such an affidavit by the victim doesn’t automatically result in the dismissal of charges, and the prosecutor still has discretion to proceed with the case.  Nonetheless, submitting a signed Affidavit of Non-Prosecution to the prosecutor and to the Court, will be considered and may result in the State not pursuing further charges and dismissing the action, especially in cases where it is a first offense, where the parties show a desire to work amicably to resolving the family matter in the best interest of the children and when there’s no viable threat of a reoccurrence or threat to the public.

Legal Representation:

Defendants in criminal cases have the right to legal representation, and if they cannot afford an attorney, one will be appointed for them. However, the respondent in civil injunction cases must hire their own attorney should they want representation and there is no automatic right to legal representation if they cannot afford it.

Sometimes, the same attorney will handle both the defense of the criminal case as well as the family divorce or paternity case. However, at other times, a family law attorney will handle the civil injunction case and a criminal attorney will handle the criminal case. In the latter case, it is important that both attorneys collaborate with each other to better serve the best interests of the client.

It is important that all individuals involved in a domestic violence case, seek legal advice from a defense attorney, family attorney, or victim advocate to obtain guidance on the specific laws and procedures in the jurisdiction and help protect the rights of the accused, and ensure that the victim’s interests and safety are considered throughout the legal process.