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The Problem with Prosecuting Domestic Violence in Florida

Phil Photo New By Philip M. Snyder

In 2005, the State of Florida had 120,386 reported incidents of domestic violence.  [1] Law enforcement and Government agencies place a premium on the apprehension and prosecution of individuals arrested for such crimes.   As importantly, victim advocates and community volunteers zealously work to protect, advise, and counsel victims of abuse and neglect.

As a former Assistant State Attorney assigned to the Domestic Violence Unit in Fort Lauderdale, Florida, I was on the front-line of prosecuting individuals arrested for criminal charges such as battery, assault, stalking, kidnapping, and attempted murder. I have personally observed victims of domestic violence appear in my office with bruises the size of cantaloupes about their body, cigar and cigarette burns on their face and neck, and strangulation marks from a phone cord or telephone wire.  The individuals who committed these unthinkable acts of violence on their supposed loved ones should be incarcerated for years on end.    I would not wish these acts of violence upon even my most hated enemy.

The problem with prosecuting domestic violence cases, however, is that the preceding examples are far and few between.     The overwhelming majority of domestic violence arrests comprise of a similar fact pattern, like the example below.

Woman confronts Man about a “mystery” woman (i.e., name discovered in cell phone; co-worker; etc.).   Man denies having any physical relationship with “mystery” woman.   A heated argument ensues.   Oftentimes, Woman hides, breaks, or takes possession of Man’s keys or cell phone or threatens to take away shared child(ren).  Woman may or may not initiate physical confrontation (scratch, push, punch, or kick) with Man.   Man grabs, slaps, pushes or punches Woman, sometimes in self-defense.  Woman calls the police (“911”) to report this act of violence.   Law enforcement arrives on scene to investigate the allegations.  Law enforcement arrests Man regardless if there are any signs of physical violence.  Law enforcement will typically arrest Man regardless of who first contacted the police.   Law enforcement will arrest Man regardless of the Woman’s (“victim’s”) desire not to press charges.  Law enforcement will contact the Department of Children and Families (DCF) if a child is present. Please note that Man and Woman are interchangeable in the preceding story.  In my experience, however, Man is typically the individual charged with domestic violence.

A significant number of these cases “resolve” in the same manner.

Within the first 24-72 hours, Woman attempts to recant her allegations of domestic violence.     Woman contacts law enforcement and/or the State Attorney’s Office to indicate her desire not to “press charges” against Man.   [2]Law enforcement advises Woman that, “It is out of our control, the case now resides with the State Attorney’s Office.”   The State Attorney’s Office Victim Advocate advises Woman, “Although we value your opinion, the assigned prosecutor will make the determination on whether to file charges based on law enforcement’s report.”  Practically speaking, both agents of the State point the finger at its sister agency to deal with the Woman’s complaints on the handling of her case.

Typically within 33 days, the State Attorney’s Office files criminal charges of misdemeanor domestic battery against Man.   Misdemeanor domestic battery carries a potential penalty of 364 days in jail.  The Court routinely issues a “No Contact Order” precluding Man from having any contact with Woman until the conclusion of the case (regardless of whether they share a residence).   Sometimes the Court also places severe restrictions on Man (i.e. ankle monitor, exorbitant bond, etc.)   Domestic violence cases can take up to year to prosecute; although most cases are resolved in less time.    The prosecutor assigned to the case will typically offer Man the option to resolve the case with a sentence of “12 months probation, 26 weeks of “batters’ intervention classes”, and No Alcohol  or Intoxicants while on probation” regardless of whether the Woman wishes to prosecute.  Please note that an individual convicted of domestic violence (even with a withhold of adjudication) cannot seal or expunge his/her record.   Of interest, the State Attorney’s Office will sometimes refuse to drop criminal charges against the Man even if the Woman files a sworn, written affidavit denying the allegations.

Cases like the one mentioned above place a tremendous burden on the State Attorney’s Office.  On average, a Fort Lauderdale domestic violence prosecutor has 200-300 active files.  This equates to at least 200-300 victims.   As an Assistant State Attorney, the number of phone calls I would receive from disappointed and disenfranchised “victims” was frightening and sad.   Some days I would receive 30-40 phone calls per day from victims begging to drop their case.    One or possibly two victims would call per day to advise me that they still wish to prosecute their case.

One cannot fault prosecutors throughout the State for their “hard line” position that the victim’s recommendations about the direction of the case are oftentimes secondary to the safety of the community at large.   Occasionally, a non-cooperating victim requires the Government’s protection even when they do not want or request it.   I remember one example, in particular, where a victim told me, “The police officer is lying … [Man] never punched me … I want the case dropped.”  All the while, I observed an indenture underneath the victim’s severely swollen left eye of Male’s ring.    It is inconceivable for a prosecutor to drop a case where he/she knows the victim is “mistaken” about whether violence occurred; however, what should a prosecutor do when he/she suspects the victim is now telling the truth that the event did not occur as originally reported?

At its core, the problem stems from the fact that law enforcement, and in turn, the State

Attorney’s Office treats all their cases in the same manner.   Law enforcement must change their “unwritten” policy to always make an arrest when called out to the scene for domestic violence related issue.  This is especially true in cases where law enforcement cannot ascertain the aggressor and no injuries are present.   A trained law enforcement agent should be able to more properly identify when two parties need a few minutes to “cool down” instead of automatically making an arrest.

As importantly, the State Attorney’s Office should not summarily dismiss the recommendations of non-cooperating and recanting victims because [the prosecutor] believes it is in the victim’s best interest for the State to file charges.  Unfortunately, a not so insignificant number of “victims” call 911 to fabricate allegations of domestic violence out of spite, jealousy, and anger.   I have reviewed cases where the accused’s attorney provided proof that [defendant] was in another State during the alleged acts of violence claimed by the victim.  Notwithstanding this fact, law enforcement presented this case to the State Attorney’s Office for filing without any further investigation.  Oftentimes, “victims” contact the State Attorney’s Office to come clean about their fabrications to law enforcement, but the State continues with its prosecution.    For some reason, prosecutors only believe “victims” who report acts of violence; “victims” that recant their allegations are simply lying or trying to protect the accused.

Law enforcement and the State Attorney’s Office must find a middle ground to weed out the fabricated cases of domestic violence.  The State Attorney’s Office should make a concerted effort to focus their attention on the legitimate victims who want and need help.  Appropriately apportioning its resources will allow the State Attorney’s Office to properly investigate and prepare for cases with legitimate victims.  This will eliminate the dozens of hours per week prosecutors spend chasing uncooperating victims.

Unlike Fort Lauderdale, other jurisdictions throughout Florida routinely offer individuals arrested in Domestic Violence related matters to enroll in a diversionary program.   [3] These diversionary programs allow the State Attorney’s Office to drop the defendant’s criminal charges upon the defendant’s completion of a 13-week “Batters Intervention Program”.   Other options for diversion may include mandatory counseling or completion of AA/NA classes.     These diversion programs provide an option for individuals committing minor crimes to receive necessary anger or drug/alcohol related treatment without receiving a life-altering criminal record.  It also provides an opportunity for the victim to maintain contact with their loved one (i.e. husband, wife, etc.) during treatment and through the pendency of the case.   Diversionary options could save the State of Florida hundreds of thousands of dollars per year in law enforcement and prosecutorial costs and would encourage victims to cooperate with the State Attorney’s Office.

[1] Florida Domestic Violence Fatality Review Team Annual Report, 2006.

[2] Please note that Woman oftentimes receives pressure from friends or family to drop charges regardless of whether the allegations are true or false.

[3] The Broward County State Attorney’s Office does offer a diversion program in limited circumstances.