First District Weighs in on Proof of Malicious Harassment In Florida Dating Violence Injunctions
The availability of civil injunctions for protection against “dating violence,” as well as other forms of violence such as “repeat violence” and “sexual violence” are addressed in § 784.046, Fla. Stat. Notably, while there are overlapping concepts, this statute imposes different rules and standard than those found in the “domestic violence” injunction statute codified at § 784.046, Fla. Stat. Thus, when seeking, or defending against, a civil injunction, it is of great importance to understand which statute applies.
Florida’s First District Court of Appeal recently addressed “dating violence” in Khan v. Deutschman, No. 1D18-822, 2019 Fla. App. LEXIS 15412, at *3 (1st DCA Oct. 11, 2019). The dating violence statute provides protections for a person who “is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence[.]” § 784.046(2)(b), Fla. Stat. Dating violence is "any assault, battery, aggravated battery, sexual assault, stalking, aggravated stalking, kidnapping or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against another person" between individuals who have had or currently have a significant, romantic relationship. § 784.046(1)(a), (d). Any qualifying person may seek a civil (non-criminal) injunction from the Circuit Court to protect them.
In Kahn, the wrongful conduct at issue was stalking, and the First District’s analysis was confined to whether the requirements for a stalking injunction were met. “The stalking element is found not only in the dating violence injunctions, but also the domestic violence injunctions, the repeat violence injunctions, and more recently the standalone stalking injunction that was created by the Legislature. In each of these types of injunctions the legal analysis for the application of the stalking requirements is identical and in fact interchangeable although other requirements of the various injunctions are substantially different.” Khan, 2019 Fla. App. LEXIS 15412, at *5. "Stalking" is defined as when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another." § 784.048(2), Fla. Stat. "'Harass' means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a). Finally, cyberstalking is harassing through electronic communication. § 784.048(1)(d). A complete blog on the issue of cyberstalking can be found at https://www.rsjlegal.com/post/floridacyberstalking. While a dating violence injunction requires acts of “violence,” the legislature specifically included “stalking” within the definition of violence, and defined that term as "willfully, maliciously, and repeatedly follow[ing], harass[ing], or cyberstalk[ing] another person." § 784.048(2), Fla. Stat.
In Kahn, the question for the trial court was whether the respondent’s repeated e-mails and contacts, one of which was described as “threatening,” and two more of which contained comments described as “hectoring” (bullying), were sufficiently harassing. Petitioner sent a formal cease and desist letter from an attorney, and contacted the Sheriff for assistance, and Respondent’s conduct continued notwithstanding. It is noteworthy that the court specifically noted that because Respondent’s conduct continued after the formal legal action (cease and desist letter), Respondent engaged in “malicious harassment.” Citing to Black’s Law Dictionary, the First District found that “[m]alicious behavior goes beyond intent to cause injury to include behavior that is ‘without just cause or excuse.’” Other appellate cases addressing harassing conduct and stalking have discussed a “legitimate purpose” defense in reversing injunctions, finding that where there was a legitimate purpose for the contact it could not be the basis for a civil injunction. Similarly, other cases have held that uncivil behavior that causes annoyance, or even distress, does not in and of itself amount of malicious harassment. Young v. Young, 96 So.3d 478 (Fla. 1st DCA 2012). This leads to the question of determining when "hectoring" becomes actionable.
I n Kahn, it appears that there was no legitimate purpose for the contact in question. When discussing and assessing litigation, it is important to think of cases in terms of evidence and proof. The Kahn case appears to be the first published opinion where a pre-litigation cease and desist letter was relied upon as proof that contact was “without just cause or excuse,” or, in other words, no “legitimate purpose.” Given the First District’s opinion in Kahn, depending on the facts and available evidence, it may be prudent (but is certainly not required) for those in need of an injunction for protection which relies on any form of “harassment,” to send a pre-petition cease and desist letter.
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Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Robert has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law, as well as civil and commercial litigation. Robert has been awarded an AV Rating by Martindale-Hubbell (2017 and 2018), as "Peer Rated For Highest Level of Professional Excellence." Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Robert can be found at www.RSJLegal.com
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