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A bill to be entitled

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An act relating to dating violence; providing a short

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title; amending s. 784.046, F.S.; revising provisions

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relating to dating violence incidents to provide

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requirements for investigations, notice to victims, and

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reporting similar to those for incidents of domestic

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violence and to apply certain immunity provisions thereto;

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prohibiting certain willful violations of conditions of

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pretrial release; providing penalties; amending s. 901.15,

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F.S.; providing for warrantless arrests of persons for

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dating violence; conforming provisions; providing an

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effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1. This act may be cited as the "Barwick-Ruschak

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Act."

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     Section 2.  Section 784.046, Florida Statutes, is amended to

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read:

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     784.046  Action by victim of repeat violence, sexual

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violence, or dating violence for protective injunction; dating

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violence investigations, notice to victims, and reporting;

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pretrial release violations powers and duties of court and clerk

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of court; filing and form of petition; notice and hearing;

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temporary injunction; issuance; statewide verification system;

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enforcement.--     

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     (1)  As used in this section, the term:

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     (a)  "Violence" means any assault, aggravated assault,

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battery, aggravated battery, sexual assault, sexual battery,

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stalking, aggravated stalking, kidnapping, or false imprisonment,

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or any criminal offense resulting in physical injury or death, by

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a person against any other person.

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     (b)  "Repeat violence" means two incidents of violence or

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stalking committed by the respondent, one of which must have been

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within 6 months of the filing of the petition, which are directed

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against the petitioner or the petitioner's immediate family

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member.

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     (c)  "Sexual violence" means any one incident of:

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     1.  Sexual battery, as defined in chapter 794;

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     2.  A lewd or lascivious act, as defined in chapter 800,

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committed upon or in the presence of a person younger than 16

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years of age;

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     3.  Luring or enticing a child, as described in chapter 787;

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     4.  Sexual performance by a child, as described in chapter

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827; or

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     5.  Any other forcible felony wherein a sexual act is

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committed or attempted,

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regardless of whether criminal charges based on the incident were

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filed, reduced, or dismissed by the state attorney.

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     (d)  "Dating violence" means violence between individuals

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who have or have had a continuing and significant relationship of

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a romantic or intimate nature. The existence of such a

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relationship shall be determined based on the consideration of

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the following factors:

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     1.  A dating relationship must have existed within the past

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6 months;

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     2.  The nature of the relationship must have been

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characterized by the expectation of affection or sexual

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involvement between the parties; and

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     3.  The frequency and type of interaction between the

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persons involved in the relationship must have included that the

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persons have been involved over time and on a continuous basis

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during the course of the relationship.

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The term does not include violence in a casual acquaintanceship

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or violence between individuals who only have engaged in ordinary

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fraternization in a business or social context.

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     (2)  There is created a cause of action for an injunction

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for protection in cases of repeat violence, there is created a

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separate cause of action for an injunction for protection in

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cases of dating violence, and there is created a separate cause

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of action for an injunction for protection in cases of sexual

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violence.

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     (a)  Any person who is the victim of repeat violence or the

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parent or legal guardian of any minor child who is living at home

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and who seeks an injunction for protection against repeat

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violence on behalf of the minor child has standing in the circuit

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court to file a sworn petition for an injunction for protection

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against repeat violence.

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     (b)  Any person who is the victim of dating violence and has

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reasonable cause to believe he or she is in imminent danger of

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becoming the victim of another act of dating violence, or any

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person who has reasonable cause to believe he or she is in

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imminent danger of becoming the victim of an act of dating

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violence, or the parent or legal guardian of any minor child who

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is living at home and who seeks an injunction for protection

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against dating violence on behalf of that minor child, has

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standing in the circuit court to file a sworn petition for an

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injunction for protection against dating violence.

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     (c)  A person who is the victim of sexual violence or the

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parent or legal guardian of a minor child who is living at home

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who is the victim of sexual violence has standing in the circuit

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court to file a sworn petition for an injunction for protection

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against sexual violence on his or her own behalf or on behalf of

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the minor child if:

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     1.  The person has reported the sexual violence to a law

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enforcement agency and is cooperating in any criminal proceeding

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against the respondent, regardless of whether criminal charges

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based on the sexual violence have been filed, reduced, or

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dismissed by the state attorney; or

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     2.  The respondent who committed the sexual violence against

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the victim or minor child was sentenced to a term of imprisonment

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in state prison for the sexual violence and the respondent's term

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of imprisonment has expired or is due to expire within 90 days

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following the date the petition is filed.

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     (d)  A cause of action for an injunction may be sought

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whether or not any other petition, complaint, or cause of action

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is currently available or pending between the parties.

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     (e)  A cause of action for an injunction does not require

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that the petitioner be represented by an attorney.

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     (3)(a)  The clerk of the court shall provide a copy of this

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section, simplified forms, and clerical assistance for the

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preparation and filing of such a petition by any person who is

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not represented by counsel.

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     (b)  Notwithstanding any other law, the clerk of the court

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may not assess a fee for filing a petition for protection against

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repeat violence, sexual violence, or dating violence. However,

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subject to legislative appropriation, the clerk of the court may,

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each quarter, submit to the Office of the State Courts

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Administrator a certified request for reimbursement for petitions

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for protection issued by the court under this section at the rate

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of $40 per petition. The request for reimbursement shall be

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submitted in the form and manner prescribed by the Office of the

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State Courts Administrator. From this reimbursement, the clerk

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shall pay the law enforcement agency serving the injunction the

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fee requested by the law enforcement agency; however, this fee

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may not exceed $20.

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     (c)  No bond shall be required by the court for the entry of

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an injunction.

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     (d)  The clerk of the court shall provide the petitioner

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with a certified copy of any injunction for protection against

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repeat violence, sexual violence, or dating violence entered by

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the court.

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     (4)(a)  The sworn petition shall allege the incidents of

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repeat violence, sexual violence, or dating violence and shall

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include the specific facts and circumstances that form the basis

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upon which relief is sought. With respect to a minor child who is

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living at home, the parent or legal guardian seeking the

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protective injunction on behalf of the minor child must:

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     1.  Have been an eyewitness to, or have direct physical

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evidence or affidavits from eyewitnesses of, the specific facts

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and circumstances that form the basis upon which relief is

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sought, if the party against whom the protective injunction is

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sought is also a parent, stepparent, or legal guardian of the

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minor child; or

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     2.  Have reasonable cause to believe that the minor child is

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a victim of repeat sexual or dating violence to form the basis

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upon which relief is sought, if the party against whom the

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protective injunction is sought is a person other than a parent,

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stepparent, or legal guardian of the minor child.

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     (b)  The sworn petition must be in substantially the

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following form:

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PETITION FOR INJUNCTION FOR PROTECTION

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AGAINST REPEAT VIOLENCE, SEXUAL

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VIOLENCE, OR DATING VIOLENCE

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     Before me, the undersigned authority, personally appeared

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Petitioner   (Name)  , who has been sworn and says that the

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following statements are true:

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     1.  Petitioner resides at   (address)   (A petitioner for an

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injunction for protection against sexual violence may furnish an

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address to the court in a separate confidential filing if, for

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safety reasons, the petitioner requires the location of his or

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her current residence to be confidential pursuant to s.

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119.071(2)(j), Florida Statutes.)

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     2.  Respondent resides at   (address)  .

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     3.a.  Petitioner has suffered repeat violence as

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demonstrated by the fact that the respondent has:

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       (enumerate incidents of violence)  

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________________________________________

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________________________________________

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________________________________________

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     b.  Petitioner has suffered sexual violence as demonstrated

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by the fact that the respondent has:   (enumerate incident of

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violence and include incident report number from law enforcement

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agency or attach notice of inmate release.)  

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________________________________________

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________________________________________

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________________________________________

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     c.  Petitioner is a victim of dating violence and has

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reasonable cause to believe that he or she is in imminent danger

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of becoming the victim of another act of dating violence or has

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reasonable cause to believe that he or she is in imminent danger

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of becoming a victim of dating violence, as demonstrated by the

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fact that the respondent has:   (list the specific incident or

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incidents of violence and describe the length of time of the

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relationship, whether it has been in existence during the last 6

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months, the nature of the relationship of a romantic or intimate

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nature, the frequency and type of interaction, and any other

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facts that characterize the relationship.)  

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________________________________________

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________________________________________

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________________________________________

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     4.  Petitioner genuinely fears repeat violence by the

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respondent.

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     5.  Petitioner seeks: an immediate injunction against the

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respondent, enjoining him or her from committing any further acts

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of violence; an injunction enjoining the respondent from

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committing any further acts of violence; and an injunction

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providing any terms the court deems necessary for the protection

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of the petitioner and the petitioner's immediate family,

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including any injunctions or directives to law enforcement

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agencies.

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     (5)  Upon the filing of the petition, the court shall set a

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hearing to be held at the earliest possible time. The respondent

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shall be personally served with a copy of the petition, notice of

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hearing, and temporary injunction, if any, prior to the hearing.

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     (6)(a)  When it appears to the court that an immediate and

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present danger of violence exists, the court may grant a

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temporary injunction which may be granted in an ex parte hearing,

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pending a full hearing, and may grant such relief as the court

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deems proper, including an injunction enjoining the respondent

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from committing any acts of violence.

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     (b)  In a hearing ex parte for the purpose of obtaining such

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temporary injunction, no evidence other than the verified

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pleading or affidavit shall be used as evidence, unless the

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respondent appears at the hearing or has received reasonable

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notice of the hearing.

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     (c)  Any such ex parte temporary injunction shall be

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effective for a fixed period not to exceed 15 days. However, an

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ex parte temporary injunction granted under subparagraph (2)(c)2.

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is effective for 15 days following the date the respondent is

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released from incarceration. A full hearing, as provided by this

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section, shall be set for a date no later than the date when the

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temporary injunction ceases to be effective. The court may grant

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a continuance of the ex parte injunction and the full hearing

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before or during a hearing, for good cause shown by any party.

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     (7)  Upon notice and hearing, the court may grant such

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relief as the court deems proper, including an injunction:

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     (a)  Enjoining the respondent from committing any acts of

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violence.

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     (b)  Ordering such other relief as the court deems necessary

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for the protection of the petitioner, including injunctions or

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directives to law enforcement agencies, as provided in this

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section.

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     (c)  The terms of the injunction shall remain in full force

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and effect until modified or dissolved. Either party may move at

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any time to modify or dissolve the injunction. Such relief may be

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granted in addition to other civil or criminal remedies.

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     (d)  A temporary or final judgment on injunction for

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protection against repeat violence, sexual violence, or dating

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violence entered pursuant to this section shall, on its face,

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indicate that:

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     1.  The injunction is valid and enforceable in all counties

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of the State of Florida.

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     2.  Law enforcement officers may use their arrest powers

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pursuant to s. 901.15(6) to enforce the terms of the injunction.

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     3.  The court had jurisdiction over the parties and matter

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under the laws of Florida and that reasonable notice and

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opportunity to be heard was given to the person against whom the

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order is sought sufficient to protect that person's right to due

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process.

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     4.  The date that the respondent was served with the

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temporary or final order, if obtainable.

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     (8)(a)1.  The clerk of the court shall furnish a copy of the

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petition, notice of hearing, and temporary injunction, if any, to

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the sheriff or a law enforcement agency of the county where the

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respondent resides or can be found, who shall serve it upon the

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respondent as soon thereafter as possible on any day of the week

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and at any time of the day or night. The clerk of the court shall

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be responsible for furnishing to the sheriff such information on

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the respondent's physical description and location as is required

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by the department to comply with the verification procedures set

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forth in this section. Notwithstanding any other provision of law

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to the contrary, the chief judge of each circuit, in consultation

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with the appropriate sheriff, may authorize a law enforcement

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agency within the chief judge's jurisdiction to effect this type

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of service and to receive a portion of the service fee. No person

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shall be authorized or permitted to serve or execute an

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injunction issued under this section unless the person is a law

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enforcement officer as defined in chapter 943.

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     2.  When an injunction is issued, if the petitioner requests

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the assistance of a law enforcement agency, the court may order

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that an officer from the appropriate law enforcement agency

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accompany the petitioner and assist in the execution or service

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of the injunction. A law enforcement officer shall accept a copy

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of an injunction for protection against repeat violence, sexual

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violence, or dating violence, certified by the clerk of the

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court, from the petitioner and immediately serve it upon a

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respondent who has been located but not yet served.

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     (b)  There shall be created a Domestic, Dating, Sexual, and

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Repeat Violence Injunction Statewide Verification System within

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the Department of Law Enforcement. The department shall

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establish, implement, and maintain a statewide communication

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system capable of electronically transmitting information to and

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between criminal justice agencies relating to domestic violence

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injunctions, dating violence injunctions, sexual violence

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injunctions, and repeat violence injunctions issued by the courts

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throughout the state. Such information must include, but is not

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limited to, information as to the existence and status of any

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injunction for verification purposes.

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     (c)1.  Within 24 hours after the court issues an injunction

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for protection against repeat violence, sexual violence, or

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dating violence or changes or vacates an injunction for

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protection against repeat violence, sexual violence, or dating

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violence, the clerk of the court must forward a copy of the

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injunction to the sheriff with jurisdiction over the residence of

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the petitioner.

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     2.  Within 24 hours after service of process of an

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injunction for protection against repeat violence, sexual

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violence, or dating violence upon a respondent, the law

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enforcement officer must forward the written proof of service of

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process to the sheriff with jurisdiction over the residence of

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the petitioner.

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     3.  Within 24 hours after the sheriff receives a certified

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copy of the injunction for protection against repeat violence,

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sexual violence, or dating violence, the sheriff must make

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information relating to the injunction available to other law

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enforcement agencies by electronically transmitting such

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information to the department.

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     4.  Within 24 hours after the sheriff or other law

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enforcement officer has made service upon the respondent and the

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sheriff has been so notified, the sheriff must make information

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relating to the service available to other law enforcement

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agencies by electronically transmitting such information to the

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department.

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     5.  Within 24 hours after an injunction for protection

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against repeat violence, sexual violence, or dating violence is

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lifted, terminated, or otherwise rendered no longer effective by

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ruling of the court, the clerk of the court must notify the

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sheriff or local law enforcement agency receiving original

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notification of the injunction as provided in subparagraph 2.

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That agency shall, within 24 hours after receiving such

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notification from the clerk of the court, notify the department

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of such action of the court.

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     (9)(a)  The court shall enforce, through a civil or criminal

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contempt proceeding, a violation of an injunction for protection.

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The court may enforce the respondent's compliance with the

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injunction by imposing a monetary assessment. The clerk of the

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court shall collect and receive such assessments. On a monthly

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basis, the clerk shall transfer the moneys collected pursuant to

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this paragraph to the State Treasury for deposit in the Crimes

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Compensation Trust Fund established in s. 960.21.

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     (b)  If the respondent is arrested by a law enforcement

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officer under s. 901.15(6) for committing an act of repeat

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violence, sexual violence, or dating violence in violation of an

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injunction for protection, the respondent shall be held in

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custody until brought before the court as expeditiously as

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possible for the purpose of enforcing the injunction and for

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admittance to bail in accordance with chapter 903 and the

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applicable rules of criminal procedure, pending a hearing.

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     (10)  The petitioner or the respondent may move the court to

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modify or dissolve an injunction at any time.

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     (11) Any law enforcement officer who investigates an

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alleged incident of dating violence shall assist the victim to

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obtain medical treatment if such is required as a result of the

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alleged incident to which the officer responds. Any law

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enforcement officer who investigates an alleged incident of

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dating violence shall advise the victim of such violence that

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there is a domestic violence center from which the victim may

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receive services. The law enforcement officer shall give the

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victim immediate notice of the legal rights and remedies

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available on a standard form developed and distributed by the

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Department of Law Enforcement. As necessary, the Department of

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Law Enforcement shall revise the Legal Rights and Remedies Notice

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to Victims to include a general summary of this section, using

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simple English as well as Spanish, and shall distribute the

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notice as a model form to be used by all law enforcement agencies

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throughout the state. The notice shall include:

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     (a) The resource listing, including telephone number, for

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the area domestic violence center designated by the Department of

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Children and Family Services; and

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     (b) A copy of the following statement: "IF YOU ARE THE

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VICTIM OF DATING VIOLENCE, you may ask the state attorney to file

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a criminal complaint. You also have the right to go to court and

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file a petition requesting an injunction for protection from

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dating violence which may include, but need not be limited to,

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provisions that restrain the abuser from further acts of abuse;

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direct the abuser to leave your household; and prevent the abuser

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from entering your residence, school, business, or place of

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employment."

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     (12) When a law enforcement officer investigates an

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allegation that an incident of dating violence has occurred, the

383

officer shall handle the incident pursuant to the arrest policy

384

provided in s. 901.15(7), and as developed in accordance with

385

subsections (13), (14), and (16). Whether or not an arrest is

386

made, the officer shall make a written police report that is

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complete and clearly indicates that the alleged offense was an

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incident of dating violence. Such report shall be given to the

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officer's supervisor and filed with the law enforcement agency in

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a manner that will permit data on dating violence cases to be

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compiled. Such report must include:

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     (a) A description of physical injuries observed, if any.

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     (b) If a law enforcement officer decides not to make an

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arrest or decides to arrest two or more parties, the grounds for

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not arresting anyone or for arresting two or more parties.

396

     (c) A statement which indicates that a copy of the legal

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rights and remedies notice was given to the victim.

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Whenever possible, the law enforcement officer shall obtain a

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written statement from the victim and witnesses concerning the

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alleged dating violence. The officer shall submit the report to

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the supervisor or other person to whom the employer's rules or

403

policies require reports of similar allegations of criminal

404

activity to be made. The law enforcement agency shall, without

405

charge, send a copy of the initial police report, as well as any

406

subsequent, supplemental, or related report, which excludes

407

victim or witness statements or other materials that are part of

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an active criminal investigation and are exempt from disclosure

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under chapter 119, to the nearest locally certified domestic

410

violence center within 24 hours after the agency's receipt of the

411

report. The report furnished to the domestic violence center must

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include a narrative description of the dating violence incident.

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     (13) Whenever a law enforcement officer determines upon

414

probable cause that an act of dating violence has been committed

415

within the jurisdiction, the officer may arrest the person or

416

persons suspected of its commission and charge such person or

417

persons with the appropriate crime. The decision to arrest and

418

charge shall not require consent of the victim or consideration

419

of the relationship of the parties.

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     (14)(a) When complaints are received from two or more

421

parties, the officers shall evaluate each complaint separately to

422

determine whether there is probable cause for arrest.

423

     (b) If a law enforcement officer has probable cause to

424

believe that two or more persons have committed a misdemeanor or

425

felony, or if two or more persons make complaints to the officer,

426

the officer shall try to determine who was the primary aggressor.

427

Arrest is the preferred response only with respect to the primary

428

aggressor and not the preferred response with respect to a person

429

who acts in a reasonable manner to protect or defend himself or

430

herself or another family or household member from dating

431

violence.

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     (15) A person who willfully violates a condition of

433

pretrial release provided in s. 903.047, when the original arrest

434

was for an act of dating violence as defined in this section,

435

commits a misdemeanor of the first degree, punishable as provided

436

in s. 775.082 or s. 775.083, and shall be held in custody until

437

his or her first appearance.

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     (16)(11) A law enforcement officer acting in good faith

439

under this section and the officer's employing agency shall be

440

immune from all liability, civil or criminal, which that might

441

otherwise be incurred or imposed by reason of the officer's or

442

agency's actions in carrying out the provisions of this section.

443

     Section 3.  Subsection (7) of section 901.15, Florida

444

Statutes, is amended to read:

445

     901.15  When arrest by officer without warrant is lawful.--A

446

law enforcement officer may arrest a person without a warrant

447

when:

448

     (7)  There is probable cause to believe that the person has

449

committed an act of domestic violence, as defined in s. 741.28,

450

or dating violence, as provided in s. 784.046. The decision to

451

arrest shall not require consent of the victim or consideration

452

of the relationship of the parties. It is the public policy of

453

this state to strongly discourage arrest and charges of both

454

parties for domestic violence or dating violence on each other

455

and to encourage training of law enforcement and prosecutors in

456

these areas this area. A law enforcement officer who acts in good

457

faith and exercises due care in making an arrest under this

458

subsection, under s. 741.31(4) or s. 784.047, or pursuant to a

459

foreign order of protection accorded full faith and credit

460

pursuant to s. 741.315, is immune from civil liability that

461

otherwise might result by reason of his or her action.

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     Section 4.  This act shall take effect October 1, 2008.