Domestic Violence Allegations

Photo by rawpixel.com on Pexels.com

There may be a world where human beings are able to control their emotions when in stressful situations in the home with loved ones, but we have learned it is not Planet Earth. There is a long history of domestic violence in the United States that continues to the present day. When domestic violence allegations arise in relationships, the ripple effects can be far reaching.

Relationships are difficult, everybody knows that. There are always going to be arguments and differences of opinion, even if they are merely about whose turn it is to take out the garbage. We have seen that domestic violence can be very real, when people are injured or killed. We have also seen that domestic violence allegations can be fraudulent, where a charge of domestic violence is used as a ruse to gain advantage in a divorce or custody dispute.

Just by filing a domestic violence injunction in civil court, one person may get his or her partner thrown out of a joint residence and prohibited from coming back, even to visit children. That same person may be awarded temporary child support and alimony without a full hearing. Often hearings are set and held within 10 days or two weeks of the injunction being filed, which gives the accused violent offender little time to find a place to live or hire a lawyer to fight the domestic violence allegations.

It is common for the initial accuser to “take back” the domestic violence allegations, to change his or her mind and decide he or she does not wish for the legal action to move forward. When a civil injunction is involved, the person asking for the injunction may dismiss the case at any time, and even after it is put in place the accuser may still be able to ask that it be modified.

But if the case reaches criminal court, the accuser may not be allowed to “take it back,” because crimes are considered actions against the State of Florida and the accuser is merely a witness to the crime described in the domestic violence allegations. Of course if the accuser asks the State to decline to prosecute, the prosecutor would have to take that request into consideration. However, whether to grant this request is in the discretion of the State, and it can and will go forward with prosecution without the cooperation of the victim under the right circumstance.

Another consideration in domestic violence cases is that “taking it back” may not mean much to the Department of Children and Families, which will remove children from a home if it believes the children have been exposed to domestic violence, but the initial accuser is now backing off, because domestic violence tends to repeat, and children within the household would then be at risk for future violence. Domestic violence between parents of children does not have to physically harm the children because merely observing their parents engaged in domestic violence is harming the children.

Domestic violence can occur between parents of children, partners in a relationship or children who grow up and hurt their parents.

Often what is called domestic violence is really just squabbling that gets out of hand. In cases such as these, there are no marks, no bruises or cuts, and no witnesses to the event. These are little more than “he-said, she-said,” cases, in which jurors are faced with the daunting problem of how the State can prove its case beyond a reasonable doubt without evidence.

One step up from squabbling is “mutual combat,” where the parties in the dispute had a real fight where bruises were left, but it is difficult to say one party is “to blame,” or that one party battered the other, merely that there was a fight.

There are various options for persons faced with a charge of domestic violence, one of which is domestic violence “diversion” programs, where the accused believes he may be found guilty at trial and chooses to take what is more like mental health treatment where group counseling is offered.

Because of the long-term effects domestic violence accusations have on a person’s record and long term effects such accusations have on custody rights, it is essential that persons accused of domestic violence have legal counsel.

As in most every case, “truth” is not a constant; there is no absolute truth, but only facts that can be interpreted in more than one way. This means there are cases which allegations of domestic violence should be fought out in court, where a jury decides the more reasonable “truth.”

It is important for another reason, too. It is important to have an objective eye on the evidence, to have an experienced lawyer on your side who more or less can tell you how your case is going to be decided. It is important to have a person who can measure the state’s case and give you advice on the best way to proceed, even if you don’t want to hear it. Sometimes, the best advice is something you don’t want to hear.

  Within the last few years, the Florida legislature has muddied the waters considerably by introducing an “immunity from prosecution” that goes beyond the historical right to defend one’s self when threatened with violence. The so-called “Stand Your Ground” law requires first that lower courts determine whether a motion for immunity from prosecution was “facially sufficient.”If the court finds the motion sufficient and grants immunity, in order to proceed with prosecution, the court would have to hold an evidentiary hearing at which the state would have to overcome that finding by “clear and convincing evidence.”By passing The Stand Your Ground Immunity Law the legislature has made it more difficult to prosecute those who may have committed domestic violence.