Dimond Kaplan & Rothstein, P.A., located in West Palm Beach, FL, provides criminal defense for those facing domestic violence charges.
When a person is arrested or charged with domestic violence, it can often be an extremely traumatic and difficult time for the entire family. The accused risks losing their home, their family, their reputation and their future. Domestic violence cases are exceptionally challenging because they involve conflicts within the family and because these cases are aggressively prosecuted by the state. Regardless of the severity of crime (misdemeanor or felony), the laws and processes involved can be confusing and daunting. It is extremely beneficial to obtain the guidance and representation of an experienced criminal defense attorney who handles domestic violence cases.
The use of the expression, “domestic violence,” as it is currently understood in legal and sociological terms, is believed to have its origins in the early 1970s, when American culture was forever changed by the rise of feminism and the women’s movement. That was a time when a great deal of attention began to be paid to what was more commonly referred to as “wife beating,” or “spousal abuse” – men hitting their wives or otherwise being abusive and/or threatening to their partners.
That is not to say that domestic violence, itself, is a new phenomenon. On the contrary – violence within the family, as well as between lovers, friends, and intimates, is as old as civilization itself. Human beings are always capable of aggressive and violent behavior, and since they usually live in domesticated arrangements, it is axiomatic that some of those violent tendencies will inevitably be inflicted by one member of the family group upon his or her closest and most vulnerable relations.
Forms of Domestic Violence
The dictionary definition of domestic violence is: “the inflicting of physical injury by one family or household member on another; also: a repeated or habitual pattern of such behavior.” This definition has been broadened, over time, by the addition of other forms of malevolent behaviors that are not purely physical. Thus domestic violence can include:
- Physical Abuse – hitting, biting, punching, slapping, shoving, etc.
- Sexual Abuse – coercing or attempt to coerce unwanted sexual behavior, sexual battery, rape.
- Emotional Abuse – threats, intimidation, bullying, any form of behavior designed to frighten someone or deflate someone’s sense of self worth, stalking
- Economic Abuse – making someone financially reliant on the abuser.
Definition of Domestic Violence and Domestic Crimes
“Domestic Violence” or a “Domestic Offense” results in the physical injury or death of one family or household member by another family or household member. These crimes typically occur between a man and a woman, but children can also be victims. Examples of domestic violence offenses include:
- Assault or aggravated assault
- Battery or aggravated battery
- Abduction or kidnapping
- Child abuse
- Sexual battery
- Stalking or aggravated stalking
Florida Domestic Violence Law
In Florida, unlike some other states, domestic violence is not an offense by itself. It is more of a classification of several different criminal acts committed by one family member against another. Florida Statute 741.28 defines domestic violence as follows:
“. . .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.”
Thus, in cases where domestic violence is suspected or present, the offender will be charged with one or more of the offenses listed in the domestic violence statute, depending on the specific circumstances and events. For example, a threat of physical harm might become an assault charge, while actual physical injury might bring a charge of battery. These crimes can be tried as misdemeanors or felonies based on the nature of the abuse. In addition, if the offender has violated a previous restraining order, or if a minor was present during the commission of the crime, the penalties can increase.
And even though each domestic violence offense, as categorized, has its own minimum and maximum penalties, a person who pleads, or is found, guilty of domestic violence is liable to be hampered by any or all of the following enhanced penalties:
- A minimum mandatory sentence of five days in a county jail if any bodily harm has been shown to have occurred.
- A mandatory 26 -29 week Batterers Intervention Program which must be paid for by the offender.
- A permanent criminal record that cannot be sealed or expunged.
- Forfeiture of the right to own a gun (this is a federal law).
- Possible provisions such as restricted contact with the victim, alcohol treatment, psychological treatment, and/or financial restitution
- If an offender has had a previous conviction for domestic battery, a subsequent conviction can be charged as a felony with a maximum prison sentence of five years.
Also, it is important to understand that, unlike many other criminal offenses, a victim of domestic violence cannot unilaterally drop the charges against an offender. The courts have determined that only the State Attorney’s Office can decide whether or not to prosecute an alleged abuser for domestic violence. This means that even if an abused spouse or family member recants his or her version of events, or refuses to testify against the offender in court, the state can proceed with a prosecution and the court can adjudicate guilt and impose penalties.
Offenders and Victims
The Florida statute defines the term “family or household member” as:
“…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.”
This part of the statute broadens the previous understanding of domestic abuse because it suggests that any person of either sex can be a domestic violence offender or a victim, regardless of whether he or she is married, unmarried, formerly married, living together, no longer living together, straight, or gay.
Injunctions and Restraining Orders
Whether you are seeking an injunction, or are being forced to defend against an injunction, you are in an undoubtedly scary and life-altering situation.
Obtaining an Injunction
An injunction is a court order that prohibits or restricts a person’s ability to have contact with another person. Often, when a person seeks an injunction, it is because they fear they are in danger of imminent harm from another individual whether they have been victims of domestic violence already or not. In Florida, a victim, or potential victim, of domestic violence can exercise an option offered through the civil court system by requesting an injunction (also known as a restraining order) against an actual or prospective abuser. According to Florida law (Statute 741.30):
Any person… who is either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence.
For victims of domestic violence, Florida Statute 741.29 says law enforcement officers must provide victims with the following information:
IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you may ask the state attorney to file a criminal complaint. You also have the right to go to court and file a petition requesting an injunction for protection from domestic violence which may include, but need not be limited to, provisions which restrain the abuser from further acts of abuse; direct the abuser to leave your household; prevent the abuser from entering your residence, school, business, or place of employment; award you custody of your minor child or children; and direct the abuser to pay support to you and the minor children if the abuser has a legal obligation to do so.
Any injunction or restraining order issued in Florida is valid and enforceable throughout the country.
Violating An Injunction
A person who violates a restraining order in Florida may face criminal prosecution. Most often, violations of injunctions are treated as first degree misdemeanor offenses. However, in some cases, a person can be charged with the felony offense of “Aggravated Stalking” if the case involves multiple violations of the injunction in an attempt to harass or threaten the aggrieved party.
Fighting An Injunction
On the opposite side, having an injunction issued against you can have serious, long-term consequences. A person accused of conduct that is the basis of an injunction faces potential public disclosure of harmful information, restricted contact with an individual(s), restricted ability to go to certain places, and the loss of ability to possess a firearm. Although seeking an injunction is not purely a criminal legal action, criminal charges may stem from the accusations, evidence, and testimony contained within, or from a violation of an injunction order.
At Dimond Kaplan & Rothstein, their aggressive criminal defense team has over 30 years of experience representing those both sides of an injunction battle and stands ready to help you today!
Potential Punishments for Domestic Violence
Regardless of what crime you or your loved one has been accused of, the effects of the case and the potential punishments are severe. Even before a determination of guilt or innocence is made by the courts, the accused person faces ridicule and shame, as well as avoidance by friends and neighbors. Not only do our attorneys understand the difficulties faced by the accused person and support them and their families, but at Dimond Kaplan & Rothstein, P.A., we do our best to ensure that the full story is known and all individual rights are protected. In these cases, it is critical to have a strategic defense, because potential punishment can include large fines, jail time (imprisonment), mandatory counseling, and restraining or no-contact orders.
Three Reasons to Turn to Dimond Kaplan & Rothstein, P.A. for Domestic Crimes Defense
- Our firm is known for our creative solutions to issues that arise on criminal defense cases, and our ability to handle complications and problems while keeping our clients’ informed and their best interests’ top of mind.
- The firm has litigated thousands of criminal defense cases in West Palm Beach and Palm Beach County over a combined 37 years, and we are highly skilled at representing domestic offenders.
- Our attorneys and staff empathize with our client and their families. We realize that family conflicts and other circumstances can place people in difficult situations. We assist clients and family members in finding the right resources to help prevent future problems (anger management, dependency management, parenting classes, etc.). We will do our very best to minimize the stress and negative effects of the case process for everyone involved.
Domestic violence is a crime that can bring tremendous hardship not only to its victims, but to its perpetrators, as well. If you are charged with any domestic violence offense, you need to contact an attorney as soon as possible.
If you have questions regarding a domestic violence charge or criminal defense litigation, please do not hesitate to contact us for a free consultation or case evaluation. We are happy to meet or speak with you anytime about a case in West Palm Beach or South Florida. Our legal team is experienced, aggressive, compassionate, and will fight for your rights!