HB 0561 2003
1	A bill to be entitled
2	An act relating to protective injunctions; providing a
3	popular name; amending s. 784.046, F.S.; defining the term
4	"sexual violence"; providing for a cause of action for an
5	injunction for protection in cases of sexual violence;
6	providing for a petition to be filed on the victim's own
7	behalf or on behalf of a minor child under certain
8	circumstances; requiring that the sexual violence be
9	reported to a law enforcement agency and that the person
10	filing the petition cooperate in any investigation;
11	providing for a petition to be filed against a respondent
12	who was sentenced to imprisonment for the sexual violence
13	and who has been or will be released; prohibiting the
14	assessment of filing fees for a petition for protection
15	against repeat violence, sexual violence, or dating
16	violence; providing for the Office of the State Courts
17	Administrator to reimburse the clerks of the court for
18	filing fees, subject to legislative appropriation;
19	providing requirements for a petition for protection
20	against sexual violence; specifying the period of effect
21	for an ex parte temporary injunction against a respondent
22	released from incarceration; providing requirements for
23	serving an injunction; redesignating the Domestic, Dating,
24	and Repeat Violence Injunction Statewide Verification
25	System as the Domestic, Dating, Sexual, and Repeat
26	Violence Injunction Statewide Verification System;
27	requiring notice to the sheriff and law enforcement
28	agencies; providing an effective date.
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1. Popular name.--This act shall be known as "The
33	Victim's Freedom Act."
34	Section 2. Section 784.046, Florida Statutes, is amended
35	to read:
36	784.046 Action by victim of repeat violence, sexual
37	violence,or dating violence for protective injunction; powers
38	and duties of court and clerk of court; filing and form of
39	petition; notice and hearing; temporary injunction; issuance;
40	statewide verification system; enforcement.--
41	(1) As used in this section, the term:
42	(a) "Violence" means any assault, aggravated assault,
43	battery, aggravated battery, sexual assault, sexual battery,
44	stalking, aggravated stalking, kidnapping, or false
45	imprisonment, or any criminal offense resulting in physical
46	injury or death, by a person against any other person.
47	(b) "Repeat violence" means two incidents of violence or
48	stalking committed by the respondent, one of which must have
49	been within 6 months of the filing of the petition, which are
50	directed against the petitioner or the petitioner's immediate
51	family member.
52	(c) "Sexual violence" means any one incident of:
53	1. Sexual battery, as defined in chapter 794;
54	2. A lewd or lascivious act, as defined in chapter 800,
55	committed upon or in the presence of a person younger than 16
56	years of age;
57	3. Luring or enticing a child, as described in chapter
58	787;
59	4. Sexual performance by a child, as described in chapter
60	827; or
61	5. Any other forcible felony wherein a sexual act is
62	committed or attempted,
63
64	regardless of whether criminal charges based on the incident
65	were filed, reduced, or dismissed by the state attorney.
66	(d)(c)"Dating violence" means violence between
67	individuals who have or have had a continuing and significant
68	relationship of a romantic or intimate nature. The existence of
69	such a relationship shall be determined based on the
70	consideration of the following factors:
71	1. A dating relationship must have existed within the past
72	6 months;
73	2. The nature of the relationship must have been
74	characterized by the expectation of affection or sexual
75	involvement between the parties; and
76	3. The frequency and type of interaction between the
77	persons involved in the relationship must have included that the
78	persons have been involved over time and on a continuous basis
79	during the course of the relationship.
80
81	The term does not include violence in a casual acquaintanceship
82	or violence between individuals who only have engaged in
83	ordinary fraternization in a business or social context.
84	(2) There is created a cause of action for an injunction
85	for protection in cases of repeat violence, andthere is created
86	a separate cause of action for an injunction for protection in
87	cases of dating violence, and there is created a separate cause
88	of action for an injunction for protection in cases of sexual
89	violence.
90	(a) Any person who is the victim of repeat violence or the
91	parent or legal guardian of any minor child who is living at
92	home and who seeks an injunction for protection against repeat
93	violence on behalf of the minor child has standing in the
94	circuit court to file a sworn petition for an injunction for
95	protection against repeat violence.
96	(b) Any person who is the victim of dating violence and
97	has reasonable cause to believe he or she is in imminent danger
98	of becoming the victim of another act of dating violence, or any
99	person who has reasonable cause to believe he or she is in
100	imminent danger of becoming the victim of an act of dating
101	violence, or the parent or legal guardian of any minor child who
102	is living at home and who seeks an injunction for protection
103	against dating violence on behalf of that minor child, has
104	standing in the circuit court to file a sworn petition for an
105	injunction for protection against dating violence.
106	(c) A person who is the victim of sexual violence or the
107	parent or legal guardian of a minor child who is living at home
108	who is the victim of sexual violence has standing in the circuit
109	court to file a sworn petition for an injunction for protection
110	against sexual violence on his or her own behalf or on behalf of
111	the minor child if:
112	1. The person has reported the sexual violence to a law
113	enforcement agency and is cooperating in any criminal proceeding
114	against the respondent, regardless of whether criminal charges
115	based on the sexual violence have been filed, reduced, or
116	dismissed by the state attorney; or
117	2. The respondent who committed the sexual violence
118	against the victim or minor child was sentenced to a term of
119	imprisonment in state prison for the sexual violence and the
120	respondent's term of imprisonment has expired or is due to
121	expire within 90 days following the date the petition is filed.
122	(d)(c)AThiscause of action for an injunction may be
123	sought whether or not any other petition, complaint, or cause of
124	action is currently available or pending between the parties.
125	(e)(d)AThis cause of action for an injunction doesshall
126	not require that the petitioner be represented by an attorney.
127	(3)(a) The clerk of the court shall provide a copy of this
128	section, simplified forms, and clerical assistance for the
129	preparation and filing of such a petition by any person who is
130	not represented by counsel.
131	(b) Notwithstanding any other law, the clerk of the court
132	may not assess a fee for filing a petition for protection
133	against repeat violence, sexual violence, or dating violence.
134	However, subject to legislative appropriation, the clerk of the
135	court may, each quarter, submit to the Office of the State
136	Courts Administrator a certified request for reimbursement for
137	petitions for protection issued by the court under this section
138	at the rate of $40 per petition. The request for reimbursement
139	shall be submitted in the form and manner prescribed by the
140	Office of the State Courts Administrator. From this
141	reimbursement, the clerk shall pay the law enforcement agency
142	serving the injunction the fee requested by the law enforcement
143	agency; however, this fee may not exceed $20.In the event the
144	person desiring to file for an injunction pursuant to this
145	section does not have sufficient funds with which to pay filing
146	fees to the clerk of the court or service fees to the sheriff or
147	law enforcement agency and signs an affidavit so stating, the
148	fees shall be waived by the clerk of the court or the sheriff or
149	law enforcement agency to the extent necessary to process the
150	petition and serve the injunction, subject to a subsequent order
151	of the court relative to the payment of such fees.
152	(c) No bond shall be required by the court for the entry
153	of an injunction.
154	(d) The clerk of the court shall provide the petitioner
155	with a certified copy of any injunction for protection against
156	repeat violence, sexual violence,or dating violence entered by
157	the court.
158	(4)(a) The sworn petition shall allege the incidents of
159	repeat violence, sexual violence,or dating violence and shall
160	include the specific facts and circumstances thatwhichform the
161	basis upon which relief is sought. With respect to a minor child
162	who is living at home, the parent or legal guardian of the minor
163	child must have been an eyewitness to, or have direct physical
164	evidence or affidavits from eyewitnesses of, the specific facts
165	and circumstances which form the basis upon which relief is
166	sought.
167	(b) The sworn petition mustshallbe in substantially the
168	following form:
169	PETITION FOR INJUNCTION FOR PROTECTION
170	AGAINST REPEAT VIOLENCE, SEXUAL VIOLENCE,OR DATING VIOLENCE
171
172	Before me, the undersigned authority, personally appeared
173	Petitioner ...(Name)..., who has been sworn and says that the
174	following statements are true:
175
176	1. Petitioner resides at ...(address)...
177	2. Respondent resides at ...(address)...
178	3.a. Petitioner has suffered repeat violence as
179	demonstrated by the fact that the respondent has:
180	...(enumerate incidents of violence)...
181
182	.............................
183	.............................
184	.............................
185
186	b. Petitioner has suffered sexual violence as demonstrated
187	by the fact that the respondent has: (enumerate incident of
188	violence and attach incident report by law enforcement agency or
189	notice of inmate release.)
190
191	.............................
192	.............................
193	.............................
194
195	c.b.Petitioner is a victim of dating violence and has
196	reasonable cause to believe that he or she is in imminent danger
197	of becoming the victim of another act of dating violence or has
198	reasonable cause to believe that he or she is in imminent danger
199	of becoming a victim of dating violence, as demonstrated by the
200	fact that the respondent has: ...(list the specific incident or
201	incidents of violence and describe the length of time of the
202	relationship, whether it has been in existence during the last 6
203	months, the nature of the relationship of a romantic or intimate
204	nature, the frequency and type of interaction, and any other
205	facts that characterize the relationship.)...
206
207	.............................
208	.............................
209	.............................
210
211	4. Petitioner genuinely fears repeat violence by the
212	respondent.
213	5. Petitioner seeks: an immediate injunction against the
214	respondent, enjoining him or her from committing any further
215	acts of violence; an injunction enjoining the respondent from
216	committing any further acts of violence; and an injunction
217	providing any terms the court deems necessary for the protection
218	of the petitioner and the petitioner's immediate family,
219	including any injunctions or directives to law enforcement
220	agencies.
221	(5) Upon the filing of the petition, the court shall set a
222	hearing to be held at the earliest possible time. The respondent
223	shall be personally served with a copy of the petition, notice
224	of hearing, and temporary injunction, if any, prior to the
225	hearing.
226	(6)(a) When it appears to the court that an immediate and
227	present danger of violence exists, the court may grant a
228	temporary injunction which may be granted in an ex parte
229	hearing, pending a full hearing, and may grant such relief as
230	the court deems proper, including an injunction enjoining the
231	respondent from committing any acts of violence.
232	(b) In a hearing ex parte for the purpose of obtaining
233	such temporary injunction, no evidence other than the verified
234	pleading or affidavit shall be used as evidence, unless the
235	respondent appears at the hearing or has received reasonable
236	notice of the hearing.
237	(c) Any such ex parte temporary injunction shall be
238	effective for a fixed period not to exceed 15 days. However, an
239	ex parte temporary injunction granted under subparagraph
240	(2)(c)2. is effective for 15 days following the date the
241	respondent is released from incarceration.A full hearing, as
242	provided by this section, shall be set for a date no later than
243	the date when the temporary injunction ceases to be effective.
244	The court may grant a continuance of the ex parte injunction and
245	the full hearing before or during a hearing, for good cause
246	shown by any party.
247	(7) Upon notice and hearing, the court may grant such
248	relief as the court deems proper, including an injunction:
249	(a) Enjoining the respondent from committing any acts of
250	violence.
251	(b) Ordering such other relief as the court deems
252	necessary for the protection of the petitioner, including
253	injunctions or directives to law enforcement agencies, as
254	provided in this section.
255	(c) The terms of the injunction shall remain in full force
256	and effect until modified or dissolved. Either party may move at
257	any time to modify or dissolve the injunction. Such relief may
258	be granted in addition to other civil or criminal remedies.
259	(d) A temporary or final judgment on injunction for
260	protection against repeat violence, sexual violence,or dating
261	violence entered pursuant to this section shall, on its face,
262	indicate that:
263	1. The injunction is valid and enforceable in all counties
264	of the State of Florida.
265	2. Law enforcement officers may use their arrest powers
266	pursuant to s. 901.15(6) to enforce the terms of the injunction.
267	3. The court had jurisdiction over the parties and matter
268	under the laws of Florida and that reasonable notice and
269	opportunity to be heard was given to the person against whom the
270	order is sought sufficient to protect that person's right to due
271	process.
272	4. The date that the respondent was served with the
273	temporary or final order, if obtainable.
274	(8)(a)1. The clerk of the court shall furnish a copy of
275	the petition, notice of hearing, and temporary injunction, if
276	any, to the sheriff or a law enforcement agency of the county
277	where the respondent resides or can be found, who shall serve it
278	upon the respondent as soon thereafter as possible on any day of
279	the week and at any time of the day or night. The clerk of the
280	court shall be responsible for furnishing to the sheriff such
281	information on the respondent's physical description and
282	location as is required by the department to comply with the
283	verification procedures set forth in this section.
284	Notwithstanding any other provision of law to the contrary, the
285	chief judge of each circuit, in consultation with the
286	appropriate sheriff, may authorize a law enforcement agency
287	within the chief judge's jurisdiction to effect this type of
288	service and to receive a portion of the service fee. No person
289	shall be authorized or permitted to serve or execute an
290	injunction issued under this section unless the person is a law
291	enforcement officer as defined in chapter 943.
292	2. If the respondent is in the custody of the Department
293	of Corrections and the petition for an injunction has been filed
294	as provided in subparagraph (2)(c)2., the clerk of the court
295	shall furnish a copy of the petition, notice of hearing, and
296	temporary injunction, if any, to the Department of Corrections
297	and copies shall be served upon the respondent as soon
298	thereafter as possible on any day of the week and at any time of
299	the day or night. The petition, notice of hearing, or temporary
300	injunction may be served in a state prison by a correctional
301	officer as defined in chapter 943. If the respondent in custody
302	is not served before his or her release, a copy of the petition,
303	notice of hearing, and temporary injunction, if any, shall be
304	forwarded to the sheriff of the county specified in the
305	respondent's release plan for service as provided in
306	subparagraph 1.
307	3.2.When an injunction is issued, if the petitioner
308	requests the assistance of a law enforcement agency, the court
309	may order that an officer from the appropriate law enforcement
310	agency accompany the petitioner and assist in the execution or
311	service of the injunction. A law enforcement officer shall
312	accept a copy of an injunction for protection against repeat
313	violence, sexual violence,or dating violence, certified by the
314	clerk of the court, from the petitioner and immediately serve it
315	upon a respondent who has been located but not yet served.
316	(b) There shall be created a Domestic, Dating, Sexual,and
317	Repeat Violence Injunction Statewide Verification System within
318	the Department of Law Enforcement. The department shall
319	establish, implement, and maintain a statewide communication
320	system capable of electronically transmitting information to and
321	between criminal justice agencies relating to domestic violence
322	injunctions, dating violence injunctions, sexual violence
323	injunctions,and repeat violence injunctions issued by the
324	courts throughout the state. Such information must include, but
325	is not limited to, information as to the existence and status of
326	any injunction for verification purposes.
327	(c)1. Within 24 hours after the court issues an injunction
328	for protection against repeat violence, sexual violence,or
329	dating violence or changes or vacates an injunction for
330	protection against repeat violence, sexual violence,or dating
331	violence, the clerk of the court must forward a copy of the
332	injunction to the sheriff with jurisdiction over the residence
333	of the petitioner.
334	2. Within 24 hours after service of process of an
335	injunction for protection against repeat violence, sexual
336	violence,or dating violence upon a respondent, the law
337	enforcement officer must forward the written proof of service of
338	process to the sheriff with jurisdiction over the residence of
339	the petitioner.
340	3. Within 24 hours after the sheriff receives a certified
341	copy of the injunction for protection against repeat violence,
342	sexual violence,or dating violence, the sheriff must make
343	information relating to the injunction available to other law
344	enforcement agencies by electronically transmitting such
345	information to the department.
346	4. Within 24 hours after the sheriff or other law
347	enforcement officer has made service upon the respondent and the
348	sheriff has been so notified, the sheriff must make information
349	relating to the service available to other law enforcement
350	agencies by electronically transmitting such information to the
351	department.
352	5. Within 24 hours after an injunction for protection
353	against repeat violence, sexual violence,or dating violence is
354	lifted, terminated, or otherwise rendered no longer effective by
355	ruling of the court, the clerk of the court must notify the
356	sheriff or local law enforcement agency receiving original
357	notification of the injunction as provided in subparagraph 2.
358	That agency shall, within 24 hours after receiving such
359	notification from the clerk of the court, notify the department
360	of such action of the court.
361	(9)(a) The court shall enforce, through a civil or
362	criminal contempt proceeding, a violation of an injunction for
363	protection. The court may enforce the respondent's compliance
364	with the injunction by imposing a monetary assessment. The clerk
365	of the court shall collect and receive such assessments. On a
366	monthly basis, the clerk shall transfer the moneys collected
367	pursuant to this paragraph to the State Treasury for deposit in
368	the Crimes Compensation Trust Fund established in s. 960.21.
369	(b) If the respondent is arrested by a law enforcement
370	officer under s. 901.15(10) for committing an act of repeat
371	violence, sexual violence, or dating violence in violation of an
372	a repeat or dating violenceinjunction for protection, the
373	respondent shall be held in custody until brought before the
374	court as expeditiously as possible for the purpose of enforcing
375	the injunction and for admittance to bail in accordance with
376	chapter 903 and the applicable rules of criminal procedure,
377	pending a hearing.
378	(10) The petitioner or the respondent may move the court
379	to modify or dissolve an injunction at any time.
380	(11) A law enforcement officer acting in good faith under
381	this section and the officer's employing agency shall be immune
382	from all liability, civil or criminal, that might otherwise be
383	incurred or imposed by reason of the officer's or agency's
384	actions in carrying out the provisions of this section.
385	Section 3. This act shall take effect July 1, 2003.