Miami Sexual Violence Injunction Attorney

Being accused of a sexually violent crime is one of the most serious accusations an individual can face in court.  However, that is the exact circumstance one encounters when he or she is served with a “petition for injunction for protection against sexual violence”. 

What Is an Injunction?

An injunction is a court order that specifically orders an individual to stay away from another’s person or property.  It is also referred to as restraining order or protective order. There are five types of injunctions that a victim of domestic violence can seek in Florida. They are:

• Sexual Violence Injunctions
• Domestic Violence Injunctions 
• Stalking Injunctions 
• Repeat Violence Injunctions 
• Dating Violence Injunctions 

Each injunction requires different evidence for a court to grant a permanent injunction.  The burden of proof is always on the person that filed the injunction.  The person that files the injunction is called the “Petitioner” and the person that gets served with the injunction is called the “Respondent”. 

After the Petitioner files the injunction, the Judge will review only the facts alleged in writing in the Petition to determine if there is a sufficient basis to grant a temporary injunction against the respondent.  If the Judge grants a temporary injunction, then the case will be set within 15 days for a permanent injunction hearing while law enforcement attempts to serve the Respondent with the temporary injunction.

What Is Sexual Violence?

Under Fla. Stat. 784.046, “sexual violence” means one incident of:

• Sexual Battery 
• A Lewd or Lascivious Act
• Luring or Enticing a Child
• Sexual Performance by a Child
• Any other Forcible Felony wherein a Sexual Act is Committed or Attempted

It should be noted that a Petitioner can prove sexual violence regardless of whether criminal charges were filed, reduced, or dismissed by the State Attorney’s Office. 

Who Can File a Sexual Violence Injunction?

Any 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 to file the petition for the injunction.  It should be noted that the Petitioner must also be able to show:

1. That he or she reported the matter to law enforcement and is cooperating in any active investigation or case in court; or
2. The Respondent who committed the sexual violence against the victim or minor child was sentenced to state prison and is due to be released within 90 days of the date of the petition.

What Happens at a Sexual Violence Injunction Hearing?

At a sexual violence injunction hearing, the Petitioner has the burden to prove that the Respondent committed an act of sexual violence.  The Petitioner can testify, call other witnesses to testify, or submit evidence to the court.  The Respondent, or his or her attorney, then has the ability to cross-examine witnesses or make objections to evidence.

After the Petitioner finishes his or her case, then the Respondent has the option to testify, call witnesses, or produce evidence to the court.  However, it is important to note that the Respondent is not required to produce any testimony or evidence since the burden of proof lays with the Petitioner.  In fact, in many cases, it is advisable for the Respondent to invoke his or her 5^th Amendment right to remain silent in these hearings especially if there is still a pending criminal investigation or case.  This decision should be made carefully on a case-by-case basis and should always involve consultation with an experienced criminal defense attorney. 

After both sides have had an opportunity to present testimony and evidence in the case, the Judge will make a determination whether the Petitioner has proven that the Respondent has committed an act of sexual violence. 

What Are the Consequences of a Sexual Violence Injunction?

If the Judge determines that the Respondent has committed an act of sexual violence, then a permanent injunction will be granted.  A permanent injunction can be granted for any period of time is typically granted between one year to indefinitely.  As a part of a permanent injunction, a Judge can also order a Respondent to complete Florida’s batterer’s intervention program, a drug/alcohol evaluation followed by any recommended treatment, a mental health evaluation followed by any recommended treatment, and/or a parenting class.  In addition, a permanent injunction will prohibit the Respondent from owning or possessing a firearm.