Appeals Court Decision Clarifies When Victims Can Seek Protective Injunctions

A woman who was the victim of a sex crime as a minor was allowed to seek a protective injunction when the man who committed the crimes was released from prison, even though the terms of the man’s probation forbade contact with the victim, according to a recent 4th District Court of Appeal ruling. Regardless of the prohibitions contained in the man’s probation, Florida law gave the victim the right to request the protective injunction and required the trial court to hold a hearing on her request.

In 2003, B. was sentenced to 15 years in prison and 10 years of probation for sexual battery on a person less than age 12. With B.’s release date this year drawing close, his victim, H., went to court to obtain an order of protection against him. The trial court dismissed both of H.’s protective injunction petitions without holding a hearing. The court reasoned that a protective injunction was unnecessary because of the terms of B.’s probation. If B. made contact with H., he would be in violation of his probation and would probably be returned to prison.

On appeal, the 4th DCA sided with the victim. The trial court was mistaken in concluding that specific details of B.’s probation were what determined whether or not H. was entitled to a protective injunction. The victim filed an injunction request in which she alleged that B. forced her to have sex against her will on multiple occasions when she was still a minor, that the state imprisoned him for those crimes, and that he was scheduled to be released within the next 90 days. The victim also included the appropriate paperwork backing up her assertion about B.’s having served time for his acts of sexual violence against her.

These allegations were all H. needed to seek a protective injunction. Section 784.046 of the Florida Statutes gives victims of sexual violence the right to ask for protective injunctions if the perpetrator served time and has been released or is scheduled for release within 90 days following the date the victim files the petition. By providing the appropriate paperwork detailing B.’s conviction, imprisonment, and soon-to-be release, H. met the statutory requirement that she include “the specific facts and circumstances that form the basis” of her request for a protective injunction.

Additionally, once the victim meets all of the filing requirements of Section 784.046, as H. had, the statute states that “the court shall set a hearing to be held at the earliest possible time.” This use of the word “shall” meant that holding a hearing was mandatory under the law. The conditions of B.’s probation were also not determinative of whether the court should give H. a protective injunction. Terms requiring no contact with victims are part of the probation requirements of nearly all sex crime offenders like B. However, the structure of the statute made it clear that the Florida Legislature intended to allow victims like H. to request protective injunctions when perpetrators like B. are released from prison, so the appeals court sent the case back for the trial court to reconsider H.’s request.

If you are a victim of domestic violence and find yourself in need of a protective injunction, be aware that there are certain legal steps you have to take in order for the court to issue that injunction. For wise advice and skillful representation, contact the South Florida family law attorneys of Sandy T. Fox, P.A.. Our attorneys can help you ensure that you provide the courts with the information you need to protect you with the protection you need.

More Blog Posts:

‘Better Safe than Sorry’ Not a Sufficient Basis for Granting an Order of Protection, Fort Lauderdale Divorce Lawyer Blog, June 26, 2014
Understanding How to Protect Yourself Against Harassment, Fort Lauderdale Divorce Lawyer Blog, Feb. 12, 2014