What Do Prosecutors Have to Prove in a Florida Stalking / Domestic Violence Case?

In Florida, stalking is a crime that often occurs in the context of domestic violence - meaning the defendant and victim are related by blood, marriage, a shared child, or a prior romantic/familial relationship involving cohabitation. The Bureau of Justice Statistics estimates 3.4 million people over 16 in the U.S. are stalked each year, though less than one-third actually file a police report. Even fewer cases are pursued by state prosecutors. 

Interestingly, while domestic violence was outlawed in every state by 1920 (largely referred to then as “wife beating”), stalking laws didn’t become the norm until much later. The Florida stalking law was passed in 1992, explicitly in an effort to aid victims of domestic violence. The statute has been revisited and expanded in recent years - most notably to include cyberstalking.

While many crimes of domestic violence involve physical harm, stalking is an example of an offense that requires zero physical contact - yet still could result in substantial prison time. It can be charged either as a misdemeanor or a felony, depending on prior history, severity of the threat, age of the victim, and whether there was already an injunction in place.

Authorities don’t need to establish a familial relationship in a Florida stalking case the way they do with a domestic violence offense, but stalking cases frequently involve exes, estranged spouses, and co-parents. Recent break-ups, pending divorces, and custody battles are often trigger points.

As our Fort Lauderdale criminal defense lawyers can explain, there are essentially four types of stalking outlined in Florida law:

• Stalking, S. 785.048(2). This is charged when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. It’s a first-degree misdemeanor, punishable by up to 1 year in jail.
• Aggravated stalking, S. 784.048(3). Stalking is elevated to a status of “aggravated” if it involves someone maliciously and repeatedly following, harassing, and stalking the other person AND making a credible threat OR violation of an injunction for protection OR the victim is under 16 OR the defendant has been court-ordered to keep away from the victim as part of a sexual assault conviction. Aggravated stalking is a third-degree felony, punishable by up to 5 years in prison.
• Cyberstalking, S. 784.048(1). This is charged when the defendant uses electronic communication methods to willfully, maliciously, and repeatedly follow, harass, or cyberstalk someone, causing the victim substantial emotional distress serving no legitimate purpose. It can also be charged if the defendant accesses or tries to access the online accounts or internet-connected home electronic systems of the victim without his or her permission. This is a first-degree misdemeanor, punishable by up to 1 year in jail, but could be bumped to a third-degree felony, punishable by up to 5 years in prison, if it involves a credible threat, domestic violence injunction, a prior conviction of defendant for sexual assault against the victim, or a victim under age 16.
• Sexual cyberharassment, S. 784.049(2)(c). This is often referred to as Florida’s “revenge porn law,” and it pertains to the electronic publication of a sexually explicit image or video for no legitimate purpose without that person’s consent and contrary to the reasonable expectation that the image would remain private - with the intent to cause substantial emotional distress to the person in the image. Even if the person in the image/video sent it to you or someone else, that isn’t necessarily enough to remove their reasonable expectation of privacy. It’s generally a first-degree misdemeanor, punishable by up to 1 year in jail. It gets bumped to a third-degree felony if the defendant has been previously convicted of the same offense. In addition to criminal case consequences, the law also expressly gives victims the right to file a civil lawsuit against the defendant for monetary damages.

These definitions may seem pretty straightforward, but it can get a lot more nuanced when we drill down into the specifics of how some of these terms like “repeated,” “willful,” “credible threat,” “harass,” “course of conduct,” and “substantial emotional distress” apply specifically to the case at hand.

Note: Most Florida stalking cases are prosecuted by the state courts. However, federal law also prohibits stalking as well. The 1994 Violence Against Women Act (and amendments made to it in 1996) prohibits the crossing of state lines to physically injure, stalk, or harass an intimate partner or with the intent of violating a qualifying protection order. If state lines are crossed in a domestic violence stalking case, it may be pursued by federal prosecutors as opposed to state attorneys.

In most any criminal matter in Florida, the proof burden rests squarely on the prosecution. Defendants are considered innocent until proven guilty, and prosecutors are responsible for proving defendant’s beyond a reasonable doubt, which is the highest legal bar.

As Broward criminal defense lawyers experienced in domestic violence stalking cases, we pay close attention to the precise language of the statute and identify weaknesses in the prosecution’s evidence where it doesn’t exactly align with the established facts of the case.

Let’s start with the word “repeated.” In order to qualify in a stalking case, the law requires proof of two or more instances of stalking. What constitutes an “instance of stalking” is something Florida courts have gone back-and-forth about.

For example, in the 2015 case of Laserinko v. Gerhardt, a petitioner was granted an injunction against stalking based on the respondent sending her emails and gifts, followed by a long letter - the contents of which caused her substantial emotional distress. An appellate court reversed the order though, finding that the only “instance of stalking” was the long letter. Without a second incident, the grounds for injunction were not substantiated.

Then in the 2018 case of Pickett v. Copeland, Florida’s First District Court of Appeal noted that stalking in and of itself requires evidence of one or more repeated acts that establish a pattern of conduct composed of a series of acts over a period of time (even if short) that show a continuity of purpose. If obtaining an injunction required proof of two stalking incidents, it would necessarily require proof of four prohibited events. Therefore, the court held that injunctions against stalking require proof of only one act of stalking - which inherently requires proof of at least two acts of repeated harassment, etc.

Then there is the question of what qualifies as “harassing.” Florida courts have held that in order for conduct to qualify as “harassing,” it must cause substantial emotional distress. Courts use the “reasonable person standard” to determine whether there’s evidence of emotional distress. Basically, the law directs the courts not to focus solely on the victim’s own characterization of their personal feelings about what happened, but rather how the alleged acts would make any reasonable person feel. Would a reasonable person under the same circumstances feel substantial emotional distress? Communication that is uncouth, profane, insulting, untrue, annoying, or embarrassing doesn’t necessarily rise to the level of “harassing.”

As to “credible threats,” these can be verbal, non-verbal, or some combination of the two, that imply a pattern of conduct that placed the accuser in reasonable fear for his/her safety or the safety of family members or other close associates. Further, for a threat to be considered “credible,” it must be proven that the person who made it had the ability to carry it out. Whether the defendant actually intended to go through matters less than the accuser’s reasonable belief that they could and would. One cannot sidestep the “credible threat” assertion by arguing they lacked the ability to carry out the offense because they were incarcerated at the time.

Domestic violence stalking cases pose unique challenges for both the prosecution and the defense. Often, it comes down to the credibility of the victim, as they are usually the sole witness. Prosecutors may be challenged by victims who haven’t kept careful track of every interaction - times, dates, names, etc. Accusers fuzzy on the details may talk in vague, broad, or hyperbolic terms - i.e., “He’s always following me,” or “She called me a million times last month,” or “He’s constantly showing up at my work.” A pending divorce or child custody case between the parties can further complicate matters, with courts tasked with deciphering what actually constitutes “harassment” and what is more likely a combination of high tensions, hurt feelings, and poor communication.

Working with an experienced criminal defense lawyer is an imperative to pushing back against criminal charges and injunction petitions that could adversely impact your life for years to come.

If you are accused of stalking in South Florida, contact The Ansara Law Firm today for your free initial consultation at (954) 761-4011.