ERIC J DIRGA, PADomestic violence is one of the most politicized and overcharged criminal offenses. Initially called Spouse Abuse, today the definition includes altercations between cousins, siblings, and parent/children.
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Domestic Violence in Florida
“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
- a spouse, former spouse, 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 [Household Member].
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. See, s. 741.28, Fla. Stat.
Minimum Penalties for Domestic Violence
If a person is found guilty of a crime defined as domestic violence, faces a minimum term of 1 year probation and required attendance and completion of a batterers’ intervention program.
Loss of Right to Bear Arms
Additionally, a person found guilty of domestic violence can lose or have his or her Second Amendment Right to Bear Arms permanently or for a minimum period of 3 years.
Jail or Imprisonment
If a person is adjudicated guilty of a crime of domestic violence and the person has intentionally caused bodily harm to another person, the court shall order the person to serve a minimum of:
- 10 days in the county jail for a first offense,
- 15 days for a second offense, and
- 20 days for a third or subsequent offense
as part of the sentence imposed, unless the court sentences the person to a period of incarceration in a state correctional facility (prison).
Presence of Children; Aggravating Factor
If a person is adjudicated guilty of a crime of domestic violence and the person has intentionally caused bodily harm to another person, and the crime of domestic violence takes place in the presence of a child under 16 years of age who is a family or household member of the victim or the perpetrator, the court shall order the person to serve a minimum of:
- 15 days in the county jail for a first offense,
- 20 days for a second offense, and
- 30 days for a third or subsequent offense
as part of the sentence imposed, unless the court sentences the person to a period of incarceration in a state correctional facility (prison).
In situations where the victim and the defendant have children, the Department of Children and Families will be notified.
Felony Domestic Violence
A person commits felony battery if he or she actually and intentionally touches or strikes another person against the will of the other and causes great bodily harm, permanent disability, or permanent disfigurement.
Domestic Violence by Strangulation; Additional Victim Class
A person commits domestic battery by strangulation if the person knowingly and intentionally, against the will of another;
- impedes the normal breathing or
- circulation of the blood, so as to create a risk of or cause great bodily harm
- by applying pressure on the throat or
- neck or
- by blocking the nose or mouth of the other person.
of a family or household member or of a person with whom he or she is in a dating relationship (meaning a continuing and significant relationship of a romantic or intimate nature). See, s. 784.041, Fla. Stat.
| Maximum Penalties | Felony | Misdemeanor |
|---|---|---|
| Incarceration | 5 to Life | 365 days |
| Fine | $5,000 and up. | $1,000 |
| Probation | 60 months and up | 12 months |
Additionally, all domestic violence cases that result in a finding of guilt require the defendant to pay for and attend a 26-week (minimum) Batterer’s Prevention Counseling.
Common Defenses
Often times, when law enforcement investigates a domestic situation there is no true act of domestic violence. However, because of emotions at the time, a witness may characterize an act in a way that is perceived by law enforcement as domestic violence and an arrest is made. In other situations, law enforcement may misinterpret the scene as evidence of domestic violence when it is not.
The common defenses include:
- The truth (a rational explanation of what was perceived).
- Witness recantation (when a witness is no longer emotional).
- Reduction to actual offense if overcharged.
Typically, a domestic violence charge is either dropped/no billed early on or it proceeds to trial. The rationale of law enforcement and the State Attorney’s Office to prosecute these to the maximum extent possible requires quick intervention by an attorney.
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