In Florida, the legal definition of stalking is willful, malicious, and repeated following, harassing, or cyberstalking another person. The stalking has to (1) be directed at a specific person; (2) cause that person substantial emotional distress; AND (3) not serve any legitimate purpose.
Stalking can occur between any two parties; however, it is often between cheating spouses or others involved in romantic relationships. Victims of stalking in Florida may seek an injunction for protection against stalking so long as they can present credible evidence. The burden of proof is on the petitioner to show to the court (by a preponderance of the evidence standard) that they have been the victim of stalking and they need the court’s protection. The petitioner must present competent, substantial evidence to the court.
Stalking is a pattern of behavior that is harassing to the victim. Under law, to “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. The courts generally consider contact to be legitimate when there is a reason for the contact to occur other than to harass the victim. The court also uses the reasonable person standard when determining “substantial emotional distress.” Stalking is a first-degree misdemeanor offense.
Under Section 784.048 of the 2018 Florida Statutes, aggravated stalking takes place when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person. “Cyberstalking” is a series of events that communicate words or images through email or other electronic means and causes you substantial emotional distress. Aggravated stalking is a third-degree felony offense.
Men and women affected by stalking may seek an injunction for protection regardless of whether criminal charges were filed.
A person seeking a stalking injunction in Orlando must allege and prove at least two separate stalking incidents. The court holds that a petitioner is a victim of stalking when the respondent has:
Anyone seeking a stalking injunction in Orlando must present evidence of the above to secure the protective order. If the petitioner presents competent and substantial evidence of stalking, the court may serve a temporary injunction. The court does not need to notify the respondent of this action, meaning it may take several days or weeks for the subject of the injunction to find out about it.
To successfully get an injunction for stalking, the petitioner must allege and prove two separate instances of stalking. Each incident of stalking must be proven by competent, substantial evidence.
The law requires that the stalking (or cyberstalking) be “repeated” – in other words, it has to happen more than once. And both times have to be proven with sufficient evidence. So even if a person can prove that you maliciously drove by their house one time, that is was not for a legitimate purpose, AND that it caused them substantial emotional distress, that is NOT enough to get an injunction because the law requires at least 2 incidents – and one is not enough no matter how bad it is.
When considering the sufficiency of the evidence, the court must apply a reasonable person standard (not a subjective standard) to determine whether an incident causes substantial emotional distress.
Many people feel uncomfortable when other individuals relentlessly pursue them. Simply receiving a stream of gifts from a person in which you are not interested may cause stress in your life; however, the court must use the reasonable person standard to establish substantial emotional distress when you seek an injunction.
In other words, even if you felt substantially emotionally distressed, it would not be enough if a “reasonable person” would not have felt substantially emotionally distressed by the action. Receiving unwanted flowers or non-threatening letters or cards are not sufficient to constitute stalking; however, these actions shown alongside other, more threatening actions, may persuade the court to grant an injunction.
What exactly is a legitimate purpose? Conduct is “legitimate” when there is a reason for the contact or conduct other than to harass the victim. So it really depends on the circumstances. If a wife contacts many times a woman who is sleeping with her husband, that contact (even if it hundreds of text messages and/or calls) is NOT stalking because there is a legitimate purpose for it. The legitimate purpose is that she is trying to save her marriage. The case of Leach v. Kersey, 162 So. 3d 1104 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D904b], explains this point pretty well if you want to read more.
A person accused of stalking has the right to protect his or her reputation. Although injunctions are civil proceedings, their effects mirror some effects of criminal charges. An injunction cannot be removed from your record. As it is public information, anyone — including your boss or prospective employer — can find it. As such, it is crucial to work with a skilled defense attorney to fight allegations of stalking.
If you must show up in court for an injunction hearing, it’s important to act quickly to obtain legal counsel as soon as possible. Often, respondents do not know they have an injunction against them until weeks after the court issues a temporary injunction. The final injunction hearing is the date the court decides whether to make the injunction against you permanent.
Whether you must act against a stalker or seek to protect your reputation from false accusations, the Fighter Law Firm helps petitioners and respondents seek the best outcome possible in their stalking cases. You have the right to legal representation whether you are a victim of stalking or being accused of it. Exercise your rights by working with our firm.
Attorney Thomas Feiter has been named the Florida Bar’s Board Certified Lawyer of the Year in 2015 and is one of few attorneys in the area who is Board Certified in Criminal Trial Law by the Florida Bar and an AV Rated Preeminent Lawyer. Speak to him about your case with a free consultation when you call (407) FIGHTER (344-4837) or complete our contact form.
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