Once a false report is made, even if the complainant doesn't follow through, these cases are hard to stop and can have devastating personal and legal consequences.
False reporting and false accusations of domestic violence and abuse can occur when
There is a contentious divorce or a "custody battle" and one spouse cries "abuse" to gain an advantage. Sometimes, spouses will state they are victims of abuse because their spouse or significant other is a police officer, military member, lawyer or doctor, and has a professional license to lose.
This is no way is to take away from legitimate abuse, but it is imperative to remember, innocent until PROVEN guilty.
Sometimes the Courts are forced to make a judgment call. Often times because of the emotional intensity of the situation, mistakes can be made in the initial granting of Domestic Violence Injunctions. People lie or omit information, which can lead to an arrest or a civil injunction.
The Courts In Florida look to Florida Statute 741.30 to determine whether there is an imminent fear of becoming a victim of domestic violence and the fear is reasonable. The statute reads:
"In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to:
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction. 9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence."
If the parties have never lived together, or do not have a child in common, a person can file a petition For Protection Against Repeat Violence. This is covered in Florida Statute 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.—
(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, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon or in
the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
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.
(a) Any person who is the victim of repeat violence or the parent or legal
guardian of any minor child who is living at home and who seeks an injunction
for protection against repeat violence on behalf of the minor child has standing
in the circuit court to file a sworn petition for an injunction for protection
against repeat violence.
(b) Any person who is the victim of dating violence and has reasonable cause
to believe he or she is in imminent danger of becoming the victim of another act
of dating violence, or any person who has reasonable cause to believe he or she
is in imminent danger of becoming the victim of an act of dating violence, or
the parent or legal guardian of any minor child who is living at home and who
seeks an injunction for protection against dating violence on behalf of that
minor child, has standing in the circuit court to file a sworn petition for an
injunction for protection against dating violence.
(c) A person who is the victim of sexual violence or the parent or legal
guardian of a minor child who is living at home who is the victim of sexual
violence has standing in the circuit court to file a sworn petition for an
injunction for protection against sexual violence on his or her own behalf or on
behalf of the minor child if:
1. The person has reported the sexual violence to a law enforcement agency
and is cooperating in any criminal proceeding against the respondent, regardless
of whether criminal charges based on the sexual violence have been filed,
reduced, or dismissed by the state attorney; or
2. The respondent who committed the sexual violence against the victim or
minor child was sentenced to a term of imprisonment in state prison for the
sexual violence and the respondent's term of imprisonment has expired or is due
to expire within 90 days following the date the petition is filed.
(d) A cause of action for an injunction may be sought whether or not any
other petition, complaint, or cause of action is currently available or pending
between the parties.
(e) A cause of action for an injunction does not require that the petitioner
be represented by an attorney.
(3)(a) The clerk of the court shall provide a copy of this section,
simplified forms, and clerical assistance for the preparation and filing of such
a petition by any person who is not represented by counsel.
(b) Notwithstanding any other law, the clerk of the court may not assess a
fee for filing a petition for protection against repeat violence, sexual
violence, or dating violence. However, subject to legislative appropriation, the
clerk of the court may, each quarter, submit to the Office of the State Courts
Administrator a certified request for reimbursement for petitions for protection
issued by the court under this section at the rate of $40 per petition. The
request for reimbursement shall be submitted in the form and manner prescribed
by the Office of the State Courts Administrator. From this reimbursement, the
clerk shall pay the law enforcement agency serving the injunction the fee
requested by the law enforcement agency; however, this fee may not exceed $20.
(c) No bond shall be required by the court for the entry of an injunction.
(d) The clerk of the court shall provide the petitioner with a certified
copy of any injunction for protection against repeat violence, sexual violence,
or dating violence entered by the court.
(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. With respect to a
minor child who is living at home, the parent or legal guardian seeking the
protective injunction on behalf of the minor child must:
1. Have been an eyewitness to, or have direct physical evidence or
affidavits from eyewitnesses of, the specific facts and circumstances that form
the basis upon which relief is sought, if the party against whom the protective
injunction is sought is also a parent, stepparent, or legal guardian of the
minor child; or
2. Have reasonable cause to believe that the minor child is a victim of
repeat sexual or dating violence to form the basis upon which relief is sought,
if the party against whom the protective injunction is sought is a person other
than a parent, stepparent, or legal guardian of the minor child.
So, If you do not meet the above requirements, don't file!
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