In all Florida prosecutions, it is a required element of battery that the touching at issue occur without the consent of the alleged victim, or “against the person’s will.” This issue frequently arises in cases where two people engage in a fight, or “mutual combat.” In Florida, ‘mutual combat’ is a recognized battery defense predicated upon both parties assenting to a physical altercation and therefore consenting to be touched as an understood consequence of that altercation. The issue of consent is a jury question, and is examined in light of the surrounding circumstances. In fact, where the allegation is that the touching was against the alleged victim’s will, the existence or extent of injury becomes irrelevant. Simple or misdemeanor battery is classified as a first degree misdemeanor in Florida.
Both parties must be at fault, and the defendant must not be the primary aggressor or initiate the fight. Testimony from the alleged victim that he or she did not consent is not required, so long as the state’s evidence can support a jury inference of a non-consensual touching. Thus, the penalties can include up to a year in jail, or a probationary sentence not to exceed one year.
Whether jail is sought will depend on a number of factors, including the prior criminal record of the accused, the status and preferences of the alleged victim, the existence of injuries, the need to seek restitution, the strength of the prosecution’s case, and whether the accused is represented by an attorney.
There is created a cause of action for an injunction for protection in cases of repeat violence, there is created a separate cause of action for an injunction for protection in cases of dating violence, and there is created a separate cause of action for an injunction for protection in cases of sexual violence.
Any person who is the victim of repeat violence or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against repeat violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence.
He or she can sometimes influence the decision by requesting that the charges be dropped or by refusing to testify, but this, in and of itself, does not ensure that the case will in fact be dropped.
Where the evidence is sufficient, the prosecution often elects to proceed with cases against the alleged victim’s wishes. Not all battery cases require the testimony of the alleged victim.