Florida Domestic Violence Defenses: Consent

Everyone understands the basic concept of self defense to an assault, a battery or any form of domestic violence. But . . . consent?

Yes, consent is a defense to many (but not all) forms of assault, battery and domestic violence. Here are some caveats:

• Will work for misdemeanor charges, such as battery, domestic violence
• Will not work for felony charges such as aggravated battery, domestic violence

For example, let's say a couple has had a few drinks at a party and starts arguing. During the argument, one party spreads their hands wide and says "take your best shot." The best shot does not rise to the level of an aggravated battery with great bodily harm, but does result in the braggart complainant getting hit in the stomach and dropped to the floor breathless.

As the party attendees commence to howling in laughter, and the complainant begins hurting more from the wound to the pride, 911 gets called and the happy occasion of spontaneous entertainment during sobriety challenged festivities ends when the police arrive.

Although winner initiator of the fight gets a free ride to jail and is ultimately charged with domestic violence, battery, when it goes through the wringer legal process and comes up for trial, the defense of consent will prevail.

This defense is related to mutual combat (which presumes both parties are at fault), but is unique in that it is as if the case law is really saying, "Hey! Idiot! Don't ask for someone to take their best shot and then complain when they did!" However, in the case of aggravated battery, the law also basically says "no, you can't break someone's jaw or cut their arm off - that's not allowed."

This last one actually happened in a case I handled eons ago: my client instigated a second fight after the first one resulted in his friend getting beaten to the ground in the parking lot. During the fight, which occurred three weeks after getting out of prison, he cut the other person's arm so badly, it had to amputated. His defense? The guy asked for it: consent.

Yet this defense was of no avail, and he was sentenced to eight (8) years in prison (the State originally wanted fifteen (15), but we worked out a deal.

So, yes, consent is a defense to battery and assault, in both domestic and non-domestic scenarios. However, if given the option to take your best shot, your best bet is to decline.


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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.

Florida Domestic Violence Defenses: Definitions

Definitions are extremely important. How things are defined can determine how a case result is obtained - or not. Therefore, a quick video primer on Florida Domestic Violence Law definitions is extremely important.

Note: Florida Criminal Law contains numerous definitions and to cover all of them would take an eternity. So, only the basics are covered here.

One of my favorite examples definitional disaster involves "assault and battery" since the phrase is commonly misused, and gives the impression that they are one and the same. However, assault is not a battery and a battery is not an assault. The penalties alone are strikingly different, even in the context of a criminal misdemeanor: assault can result in sixty (60) days in jail; battery, up to a year. The simplest way to describe the difference is to liken assault with a swing and a miss, and battery as a swing that hits. This is grossly oversimplified, but gives a good mental visual of the difference between the two.

Florida Domestic Violence Defenses: Introduction

This is the first in a series of videos discussing common domestic violence defenses in Florida. This is not an exclusive list by any means. There are many defenses that aren't covered, but this gives an idea of how criminal defense lawyers handle such cases.

The basics of defending assault and battery are covered, but sexual offenses in the domestic context will be dealt with in another series.