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KEY WEST, December 6, 2019 – A Monroe County judge has overruled a lower court’s order that a victim of domestic violence release to her alleged abuser’s defense her 10-year dating history and contact information from past relationships.
In doing so on December 6, Monroe County Circuit Court Judge Timothy Koenig ruled that County Court Judge Peary Fowler’s May 28, 2019, order would cause “irreparable harm” to the victim and to the process as a whole, referencing the victim’s right to privacy and the public’s confidence in the process of the judicial system generally.
“The court grants the petition” filed by the State Attorney’s Office on June 19, 2019, to quash Judge Fowler’s order, Judge Koenig said in a hearing after reviewing the appeal and hearing arguments from Assistant State Attorney Cristy Spottswood and Hal Schuhmacher, defense attorney for Bradley McBride.
“Judge Koenig got it exactly right today,” Spottswood said after the hearing. “The State Attorney’s Office strives to protect all victims of domestic abuse from further victimization during pre-trial proceedings, and that mission was furthered today.”
“It preserves the privacy rights of victims of not only domestic violence but of sexual battery, as well,” State Attorney Dennis Ward said, calling Schuhmacher’s tactics in the case “shenanigans.”
Members of the National Organization for Women filled the courtroom’s gallery in support of the victim.
McBride, 38, was arrested on a warrant on March 3, 2018, charged with domestic battery on a former girlfriend that took place at a Key West residence on January 19, 2018.
On December 26, 2018, Schuhmacher deposed her and asked whether she had previously been in an abusive relationship; she replied that a former boyfriend yelled at her 10 years previous. Schuhmacher then asked, “Who were you dating? Who were your boyfriends” between the two incidents?
Assistant State Attorney Marisa Faraldo Tedesco immediately protested and told the victim not to answer due to the harassing nature of the question.
Schuhmacher filed a motion for sanctions and a motion for a rule to show cause that was heard in hearings by Judge Fowler on April 8, 2019, and May 6, 2019, in an effort to get the victim to answer and produce her dating history.
Spottswood argued that the question was not reasonably calculated to lead to discovery of admissible evidence. Rather, it was merely to harass and embarrass the victim and amounted to re-victimization and a gross invasion of her privacy without any legal basis. It also violated the Florida Constitution, which provides for victims rights, including “the right to be free from intimidation, harassment and abuse.”
Judge Fowler disagreed, asking “what if [the victim] is not telling the truth” about prior abuse allegations and issued her order stating the victim “shall provide a list of individuals she dated during the past 10 years and ways to contact those individuals.”
At the December 6 hearing, Spottswood argued that if the victim is compelled to turn her dating history over to the defense, “the state has no appellate remedy at all … The bell cannot be unrung” once her dating history becomes part of the public record. She added, “the harassment, invasion of privacy, and re-victimization cannot be undone.”
Shad Neiss, an attorney for the Florida Coalition Against Domestic Violence assigned to Monroe County who had filed a brief in support of the state’s position, told Judge Koenig that “we are concerned if the ruling stands, it could have a chilling effect” on other domestic violence victims coming forward.
Spottswood also argued that Schuhmacher seeking the victim’s dating history has nothing to do with McBride’s case, and that depositions are not “fishing expeditions.” Judge Koenig agreed, saying “discovery is not a weapon; it is a tool.”
McBride’s case is pending before Judge Fowler.