Family Violence
How common?
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As many as four in one hundred women are
physically abused by their husbands each
year
Called “a plague on our social structure and
a frontal assault on the institution of the
family” Cusseaux v Pickett (casebook)
Identifying Domestic Violence
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The National Coalition Against Domestic
Violence defines battering as "a pattern of
behavior used to establish power and control
over another through fear and intimidation,
often including the threat or use of violence."
Can include physical, psychological, or
sexual abuse.
Battered-Woman’s Syndrome
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Element of self-defense in criminal
proceedings against a woman who uses
force to defend herself against a batterer
Affirmative tort action for damages by woman
against her batterer
Expert testimony generally required to assert
claim or defense
Common Traits or Characteristics of
Battered-Woman’s Syndrome
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Low self-esteem
Traditional views of role of women at home
and in workplace
Guilt that marriage is failing
Tendency to accept responsibility for
batterer’s actions
Marital Rape
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Traditionally, husband could not be criminally
charged with rape of his wife
Some states have enacted marital rape
statutes eliminating this immunity and
defining marital or spousal rape as a crime
Others treat marital rape the same as other
rape cases
Marital rape in Florida
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In Florida (as in about half of the states), there is no
legal distinction between rape by a spouse and rape
by someone else. The sentencing ranges are also
the same.
However, a judge can consider a defendant's marital
status as an aggravating or mitigating factor during
sentencing. For instance, a prosecutor could argue
for a longer sentence in a case in which a defendant
used his financial control over his wife to help
perpetrate sexual abuse.
Federal Violence Against Women Act
(VAWA), 42 USC § 13981
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Creates a federal cause of action for gendermotivated violence that would constitute a
felony, whether or not the violence resulted in
criminal charges
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Possible “trial within a trial” on whether a crime
was committed.
Can receive compensatory and punitive
damages, and injunctive and other relief
Must demonstrate by preponderance of the
evidence that the violent act was motivated
by gender
Interstate aspects of VAWA
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Requires that states give “full faith and credit”
to domestic violence protective orders from
other states
Creates two new federal crimes (requires
intent and comission)
– Traveling across state lines to commit
domestic violence
– Traveling across state lines to violate a
protective order
Domestic Violence at time of break-up
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It tends to escalate when the victim attempts
to seek assistance or leave the relationship.
Whether the abuse is long-term or
situational, the time during and
immediately following the break-up of the
relationship is often especially
dangerous.
Half of women murdered by male partners
were killed during or after divorce or
separation
Demographics of DV
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Domestic violence occurs in all socio-economic, racial,
religious, and ethnic groups, regardless of education level.
Violence is most often perpetrated by men against women, but
women may also batter their male partners and battering may
occur in same sex relationships.
Although domestic violence cannot be blamed on drug or
alcohol use, substance abuse is often an accompanying factor.
Mental disorders, such as an anti-social personality, may also
increase the risk of violence in a relationship.
Obsessive jealousy or rigid views on gender roles may also be
strong indicators of domestic violence.
Barriers encountered when urging a
client to leave a violent relationship
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Battered women experience shame,
embarrassment, and isolation.
They may realistically fear that the batterer will
become more violent if they attempt to leave the
relationship.
They may believe or have been told by the abuser
that leaving will mean living in fear and losing
custody of children or financial support.
The relationship may also be a combination of good
times and violence.
Because of the isolation that often accompanies
domestic violence, the victim may not have friends or
family to support her leaving.
Problem of repeated filings and
dismissals
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The victim may have a history of filing petitions for injunctions
and then dismissing them.
Such a history does not mean there is no domestic violence.
Instead, the victim may have been persuaded to drop her action
by apologies, promises of change or professional treatment, a
need for financial support, religious beliefs, or any number of
other reasons that are not, to the victim, inconsistent with
returning to an abusive partner.
The victim may also have alcohol or drug dependency
problems because of her spouse's alcohol or drug use or
because she is self-medicating for depression. Referral to
programs that can assist with these issues should be
considered.
DV laws in Florida
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The statutory definition of domestic violence
in Florida, however, does not include
psychological abuse, nor does it require a
pattern of behavior. Fla. Stat. 741.28(2)
A single incident of abuse meeting the
statutory definition constitutes domestic
violence. A pattern is not required.
Florida statutory definition of domestic
violence
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"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.
Who is a family or household member?
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“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.
DV and the family law attorney
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Most family law practitioners will encounter
the presence of domestic violence in their
family law cases. Domestic violence should
be considered as a possibility in any initial
client interview, even when a client does not
have obvious physical injuries.
Use of a standard set of questions may help
to determine if a client is being abused.
Questions to Ask a Client about DV
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Does your partner prevent you from seeing your
family or friends?
Does your partner time your shopping trips or check
your odometer when you return?
Does your partner call you demeaning names like
"stupid," "bitch," or "whore"?
Has your partner ever unjustly accused you of
having affairs with friends or co-workers?
Does your partner constantly criticize you and your
abilities?
Does your partner intimidate or threaten you?
.
…and
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Does your partner grab, push, shove, hit, punch, slap, or kick
you or forcibly restrain you from leaving during arguments?
Has your partner ever threatened you with a weapon, such as a
gun or knife?
Has your partner ever prevented you from leaving the house,
getting a job, or continuing your education?
Has your partner ever destroyed things that you care about,
broken furniture, thrown things, or hurt your pets?
Has your partner ever forced you to have sex or coerced you to
engage in sex that makes you feel uncomfortable?
Has your partner ever attempted or threatened suicide or told
you "If I can't have you, no one will"?
Helping a DV victim
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Address immediate needs for:
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medical care
shelter
financial support
legal protection
Medical care
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If a client has been physically abused, obtaining
medical care may be an immediate concern.
The client may not have sought help because of
passivity, fear, embarrassment, or lack of funds.
Domestic violence victims often minimize the
severity of their injuries. The client should be
encouraged to seek medical attention at a hospital
emergency room, clinic, or doctor's office and to be
honest with medical personnel about the cause of
the injuries.
The medical care provider should be encourage to
document abuse with color photographs (not role of
lawyer).
Shelter
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A local battered women's shelter, if one exists in the community,
can be a resource for a safe place to stay for the victim and her
children and for referral to other community resources.
A referral to the nearest shelter can be obtained from the
Florida Coalition Against Domestic Violence Hotline at (800)
500-1999.
The possibility of temporarily staying with relatives or friends or
at a hotel or motel also should be explored.
The lawyer may best help the client, however, by assisting the
client in obtaining an ex parte injunction for protection against
domestic violence that awards the client temporary possession
of the parties' shared dwelling.
Develop a Plan if Threats Persist
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Planning an escape route and a means of transportation
Knowing which doors lock in the home
Determining routes to safe public places such as hospitals, fire
stations, police stations, or 24-hour stores
Arranging a signal (such as turning on a particular outside light)
with friends or neighbors for them to call 911 for help
Keeping essential documents, cash, and keys available in a
safe place or with someone she can trust
Memorizing important telephone numbers such as domestic
violence shelters or hotlines, local hospitals, or local law
enforcement
Making sure that children know how to dial 911 in an
emergency and instructing them on a safe place to go if
violence occurs
Financial support
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Obtain injunction for protection against
domestic violence granting exclusive
possession of home
File dissolution petition if couple is married
and seek temporary financial relief in form of
temporary alimony or financial status quo
order
Legal Protection
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File petition seeking injunction for protection
against domestic violence
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See standard form petition and temporary
injunction on course web site on Supplemental
Info page
What if client can’t afford to hire you?
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A party need not be represented by an attorney to
file a petition for an injunction for protection. Fla.
Stat. 741.30(1)(f)
The clerk of the court or family or domestic violence
intake staff must provide forms and assist petitioners
in completing them to seek injunctions for protection.
Fla. Stat. 741.30(2)(c), Florida Family Law Rule
12.610(b)(4)(A).
Where to file?
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A petition for an injunction for protection against
domestic violence may be filed in the circuit in which
the petitioner "currently or temporarily resides,"
where the respondent resides, or where the
domestic violence occurred.
There is no minimum residence requirement.
A victim who has relocated because of domestic
violence may file the petition in the county in which
she is living and is not required to file where the
respondent resides or where the domestic violence
took place.
Keeping victim’s address confidential
to prevent further abuse
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If the petitioner fears that disclosing his or
her address will place him or her in danger,
Petitioner's Request for Confidential
Filing of Address form can be filed.
If this form is filed, the petitioner's address
may be omitted from the petition for
injunction for protection and other
accompanying forms that are served on the
alleged perpetrator.
Procedure for Ex Parte Issuance
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Although statute contemplates a “hearing,” as a
practical matter the court simply reviews the petition
to determine if a temporary injunction should be
issued ex parte (without presence of respondent)
Each judicial circuit must have a judge available 24
hours a day, seven days a week, to hear petitions for
injunctions for protection against domestic violence
The court must find "that an immediate and present
danger of domestic violence exists" to issue order ex
parte
Ex Parte order valid for 15 days, but may be
extended by court for good cause such as need to
obtain service on respondent of notice for full
hearing
Relief available in Temporary
Injunction
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Prohibiting the respondent from committing
acts of domestic violence against the
petitioner, contacting the petitioner, or
possessing firearms
Granting the petitioner temporary exclusive
use and possession of the parties' residence
Granting the petitioner temporary custody of
minor children common to both parties
Denial of Petitions
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Denial of an injunction must be by written order,
noting the legal grounds for the denial.
If the only reason for denial is the failure to show an
immediate and present danger of domestic violence,
the court must set a full hearing on the petition with
notice as soon as possible
If the petition is denied, the petitioner may amend it
If the petition is amended, the court must consider it
as if originally filed
Service and hearing requirements
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Petition, temporary injunction, and notice of
hearing must be served personally on
respondent by a law enforcement agency
At hearing, court may grant a “permanent”
injunction against domestic violence
Factors at hearing (non-exclusive)
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Threats, or incidents of harassment, stalking, or physical abuse
Attempts to harm the petitioner, family members, or close
associates
Threats to conceal, kidnap, or harm the petitioner's children
Killing or injuring a family pet
Use of or threats to use weapons
Physical restraint to prevent the petitioner from leaving or
calling the police
Respondent's criminal history of violence or threats of violence
Existence of an order of protection in another jurisdiction
Destruction of the petitioner's personal property by the
respondent
Other behavior that leads the petitioner to fear domestic
violence
Relief Available in Permanent
Injunction
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Temporary custody of the parties' minor children
Temporary visitation
Temporary child support
Temporary alimony
Exclusive use and possession of the parties' residence
Prohibiting possession of firearms by the respondent. This
prohibition is mandatory unless the respondent is a law
enforcement officer
Ordering the respondent to receive treatment or attend a
batterers' intervention program. Attendance at an intervention
program may be mandatory in some cases of repeat offenders
Referring the petitioner to a domestic violence center.
Arrest for violation, hold for hearing
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A respondent arrested for violation of a
domestic violence injunction must be held in
custody until first appearance before a judge
Law enforcement does not have discretion to
release the respondent
Penalties for violation
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Violation of the protective provisions of an injunction for
protection against domestic violence may be prosecuted as a
criminal contempt, or as a criminal violation (first degree
misdemeanor). The legislature has expressed its intent that
domestic violence be treated as a crime
Mandatory penalties:
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Optional penalties:
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A minimum of one year's probation
Attendance at a batterer's intervention program as a condition of
probation
Up to one year in prison
$1,000 fine
Other provisions such as child support or visitation may be
enforced through civil contempt
Penalties if victim is physically harmed
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The court must impose a sentence of at
least five days in the county jail, unless the
perpetrator is sentenced to incarceration in a
state correctional facility.
The court may also impose probation,
community control, or additional
incarceration
Federal limitation on right to possess
firearm if convicted
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Conviction of a misdemeanor crime of
domestic violence or violation of a domestic
violence injunction prohibits (and
criminalizes) possession of a firearm by the
defendant. 18 USC § 922(g)(8)
Modification
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Either party may move at any time to modify
an injunction for protection against domestic
violence
As with original petition, there is a standard
form for a motion for modification.
Must be properly served on opposing party
Expiration
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The parties cannot by their actions (such as inviting
the respondent to the residence) vacate the
injunction
It must be dissolved by the court or it remains in
effect indefinitely (no fixed term of months or years)
Either party may move to dissolve the injunction at
any time
Service must be made on the other party to provide
notice and an opportunity to be heard