• What Is the Difference Between Domestic Assault, Domestic Battery, and Domestic Violence in Pinellas County?

What Is the Difference Between Domestic Assault, Domestic Battery, and Domestic Violence in Pinellas County?

By |2020-05-28T22:44:27-04:00April 5th, 2020|Categories: Domestic Battery|Tags: , , |

Domestic violence is an issue that is receiving much more attention in recent years. The views on domestic violence have led to stricter penalties and increasingly more aggressive prosecutions. Cases that normally would have been quickly dismissed only a few years ago are now being strictly prosecuted. Pinellas County prosecutions are no exception. Pinellas County was already a conservative jurisdiction with a large law enforcement presence and a State Attorney who did not look favorably upon those accused of domestic violence. With the nationwide crackdown on domestic violence, cases have become even more challenging.

The data in Florida on domestic violence confirms the above. According to the Florida Department of Law Enforcement (FDLE), there were 104,914 reported incidents of domestic violence in 2018 alone. 80% of those reports involved a report of simple assault or battery. The offenders in those statistics were listed as 29.3% to be co-habitants (boyfriend/girlfriend or fiancee), and 20.9% were spouses. Thus, the numbers show that a high percentage of these incidents were from people close to the victim.

Pinellas County is no different than the overall state trend. In 2018, FDLE reported 3,658 arrests for domestic violence. Of those arrests, 3,096 were for simple assault or battery. In St. Petersburg alone in 2018, there were a total of 1,132 domestic violence arrests and 921 were for simple assault or battery. The numbers show that the St. Petersburg Police Department is very aggressive with their investigations and arrests.

Is there a difference between domestic violence, domestic assault, and domestic battery?

Domestic violence is a broad term. According to Florida Statute § 741.28, “domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Therefore, the term domestic violence includes both assault and battery.

The terms family or household members are also broad. “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”

Understanding Assault and Battery

Florida Statute § 784.011 defines domestic assault. Assaut does not require physical violence, it is the threat of violence. The elements of an assault are a threat by word or act, together with an apparent ability to carry out the threat, that creates a well-founded fear in the victim that violence is imminent. There are various levels of assault, but for purposes of this article, I am only focusing on simple domestic assault. It has been my experience that domestic assault cases are rare. They are hard to prove and not often prosecuted. The same cannot be said for domestic battery.

Domestic Battery is found in Florida Statute § 784.03. The elements of domestic battery are to touch or strike another against their will or cause bodily harm. We automatically think that a battery requires a punch, a push, or a slap. But a battery can be as simple as poking someone, spitting on someone, pinching, etc. Domestic battery cases are easier to prove and are much more common than assault cases. Normally, if there is any evidence of an injury (red mark, bruise, abrasion), then that corroborating evidence is used to bolster the prosecution.

What Are the Penalties for Domestic Battery?

As mentioned in the above, the penalties for domestic violence continue to increase seemingly by the year. Through the efforts of an experienced domestic battery attorney, charges can be dropped, lessened, or perhaps a diversion program to guarantee dismissal. But, for those cases that result in a plea or conviction to a domestic, the legislature has directed the courts and the prosecutors to impose certain penalties. Under Florida Statute § 741.281, every person convicted of domestic violence must be sentenced to a minimum of 12 months of probation and ordered to complete a batterers’ intervention as a condition of probation. The program consists of an evaluation and 26 weeks of counseling. The statute does not prevent the court from permitting early termination of probation once all of the conditions are completed.

There is also a mandatory jail penalty for those convicted of domestic violence that have caused bodily harm. Under Florida Statute § 741.283, the court must impose a minimum period of jail of 10 days for the first conviction, a minimum of 15 days for a second conviction, and a minimum of 20 days for a third conviction. This enhanced jail requirement was just updated in 2017. Therefore, it is clear that there is a lot of risk to these charges for a defendant.

What Is the Duty of the Police When on a Domestic Violence Call?

If police are called after a report of domestic violence in Pinellas County and probable cause is found, someone is getting arrested. Probable cause is a very low bar. It simply requires a report of domestic violence by a credible victim. Corroborating evidence is not required to develop probable cause, although it is standard practice to have some injury, text, or witness to verify the complaint.

But, the requirements of Florida law for law enforcement officers do not mandate an arrest. Instead, it gives the police the option to arrest. However, there are no legal consequences for an officer who chooses to arrest rather than to simply make a report. But, if the officer does not make an arrest and further violence is committed later, the officer will certainly be blamed. It is this reason that has pushed law enforcement to err on the side of an arrest rather than a warning. The obligations are found in Florida Statutes §§ 741.29 and 901.15, a law enforcement officer shall assist the victim in obtaining medical treatment, inform them that services are available though the local domestic violence center run by the Department of Children and Families, and give the victim a copy of the Legal Rights and Remedies Notice. The officer is required to complete a written report and attempt to get a written statement from the victim. The officer may arrest with or without the consent of the victim. The officer does not need a warrant. In the situation when two or more people have made a complaint of domestic violence, the officer is supposed to find the primary aggressor, not one who is “acting in a reasonable manner to protect him/herself or a loved one.” In fact, the statute states that it is strongly discouraged for police and prosecutors to arrest and charge both parties. This means that even though someone may be guilty, the law would protect them from prosecution. Thus, domestic violence cases are set up to be inherently unfair even according to the law.

Does the Filing of a Request Not to Prosecute Help?

Yes, although it is not dispositive of the case. In many cases after an arrest, tensions relax and the victim wants the charges to be dismissed. In most cases, the victim calls the Office of the State Attorney or the Victim Advocate and is instructed that they can fill out a “Request Not to Prosecute.” This is a form that is available at the State Attorney’s Office at the Pinellas County Justice Center on 49th St. In my criminal defense practice, I like to use my own form, which can be modified depending on the circumstances. Once the form is filled out by the victim at my office, I will file the form with the clerk and send a courtesy copy to the prosecutor.

The filing of this form is certainly helpful to get the charges dropped. But, the prosecutor will only take the wishes of the victim into partial consideration. If the victim tells the prosecutor that the domestic violence occurred, but he or she simply doesn’t want to prosecute, then the charges may still be filed. The prosecutor must make a decision based on the severity of the injuries, whether there were prior reports of domestic violence, and whether the defendant is a risk to re-offend. Thus, I encourage every victim to sign a Request Not to Prosecute, but more should be done to improve the odds that the case gets dismissed/dropped.

Contact a Pinellas County Domestic Violence Attorney

I represent people charged with domestic violence in Pinellas County. I have handled countless domestic cases in my career. If you are under investigation or have been arrested for any crime involving domestic violence, I will be able to quickly put together a strategy for your defense. My clients distinguish themselves from all of the other cases that flow through the Pinellas County justice system. If you are interested in getting your charges dropped or the charges minimized, then please contact me for a free consultation.

Sean McQuaid