Florida Domestic Violence Defenses: Did Not Happen

The most common variant of a defense that a domestic violence allegation did not happen is precisely that: nothing illegal happened.

This is a very clear defense in its purest form - the two elements of battery, intentional touching or striking that was harmful or offensive, simply did not occur. Either there was a mistake or someone lied or both.

However, many cases are not so simple. As discussed in the video below, parts of the allegations may be admitted while others are denied. Some cases are felonies, some defenses may affect other defenses or even eliminate them.

One thing is very consistent: Many are being pushed into "counseling" classes that may last for over six (6) months when they never broke the law. Worse, these classes are a prime example of the 80/20 Rule: they will help 20% of the participants and will fail 80% of the time.

You read that right - domestic violence classes have a failure rate that often exceeds 80%.

Why? Two reasons.

1) Many of the class participants should not even be there in the first place. They foolishly tried to handle the case on their own, and found themselves imprisoned in worthless rehabilitation classes for "domestic abusers" when they never committed any act of domestic violence. Of course, they are blamed for their reluctance to admit to abuse that never occurred.

2) As I have pointed out repeatedly in other posts, such as here, an accurate diagnosis is required in order for treatment to be effective. Where the diagnostic model consists of "what's your charge?" followed by the conclusion "You need domestic violence counseling!", we have a problem. Treatment is only as effective as the diagnosis. Yet Florida has the usual, feel good, one size fits all approach. Thus if a woman or a man commits an act of domestic violence and really need treatment, they get a political solution to a medical problem.

Finally, not to harp on the oft stated and blisteringly obvious, but a large part of the problem is Florida's "somebody is going to jail when the police are called on a domestic" law (determination of the "primary aggressor" by statutory requirement). As a result, mistakes are made in the field, and people are going to jail for crimes they did not commit. Yelling during an argument is turned into an assault by the legal process, despite the fact no actual assault occurred. In the same manner, snatching the keys to your own vehicle becomes a battery. When neither an assault nor a battery occurred.

Florida Domestic Violence Defenses: Witness will not show

The first defense in this series on Florida Domestic Violence Defenses is that the witness will not show up to court. Usually, but not always, this refers to the Complaining Witness (the State will often call this witness "the victim," which is not permissible in front of a jury).

Unfortunately, over the last two and a half decades, I have seen more unrepresented defendants blow their cases with this defense than all other defenses combined.

Although fraught with danger, many people delay hiring a skilled Florida criminal defense lawyer because they have a fantasy belief (usually the product of wishful thinking plus inexperience) about how the criminal justice system works. They sincerely believe either 1) the Complaining Witness can just decide not to testify or, 2) that the Complaining Witness has the power to unilaterally drop a domestic violence charge.


Here is what really happens: the State will subpoena the Complaining Witness and offer to put them behind bars if they refuse to testify. Since judges tend to take a dim view of witnesses blowing off a subpoena, the threat is real: people do go to jail for refusing to show up to court to testify.

The Complaining Witness does not have the power to drop the domestic violence charges. Only the State can file criminal charges and only the State can drop criminal charges. But by the time most unrepresented defendants fully appreciate this rigging of the system, their plea bargain (which is never the best one available - they have no lawyer, so no realistic threat of trial) is revoked. Now they face a lifetime of legal harassment for having a domestic on their record or a lifetime of harassment and jail time.

The mechanism to compel testimony against someone's will is usually a Motion for an Order to Show Cause (why the witness should not be held in contempt of court). This motion is routinely granted when a witness does not show up for a domestic violence trial. If found to be in contempt of court, the witness will be punished in some manner. This threat is how the Complaining Witness is coerced into testifying against their will.

Key point: the witness will be told not to commit perjury (a felony), but also will be told that if they change their story (often admitting the truth about what really happened), they will go to jail on the spot for Filing a False Police Report. Although very few Complaining Witnesses are ever charged, the threat produces the desired result: coerced testimony. The unrepresented defendant usually finds this out at the last moment, and a plea of guilty or no contest is crushed out of them by a prosecutor who knows how to work the system.

Final Note: this defense will work, but don't screw up your case and then call a lawyer - by then it is too late. Problems do not get better with time. Act quickly, and avoid the land mines in the legal minefield of criminal law.