Florida Statute 794.011(1)(h) defines sexual battery as the oral, anal or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. The severity of the punishment if convicted of sexual battery is, in general, dependent upon the age of the offender and the victim. Florida Statute 794.011 provides that a person eighteen (18) years of age or older who commit a sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than twelve (12) years of age commits a capital felony. This crime carries a mandatory sentence of life in prison and is still designated by Florida as a “Capital” felony. Capital crimes are punishable by death however the United States Supreme Court ruled that only certain types of murder could be punished by death.
Sexual crimes against children are judged by society to be particularly heinous and harmful. It can be difficult for the State Attorney to prove a crime was committed against a child because frequently the only witness is a small child. It is not unusual for a child victim to be unable to articulate the facts of a crime in Court before a Jury. Trials can take place months or even years after a crime is committed. This can further impair a child’s ability to testify accurately. Sex crimes against students are punishable under F.S. § 800.101, read more in this article written by partner, Kenneth Rhoden.
In response to the difficulty of proving sexual crimes and other crimes against children the Florida legislature created an exception to the normal rule that hearsay statements cannot be used in trial.
Florida Statute 90.803(23) allows an out of court statement made by a child victim with a physical, mental, emotional or developmental age of sixteen (16) or less describing any act of child abuse or sexual abuse, performed in the presence of or on the child can be admissible if the court determines the statement is reliable.
In a child sex abuse case typically the child makes statements to a parent. Normally the parent would not be allowed to tell the Jury what the child says as the statements are hearsay. Under 90.803(23) the parent can tell the Jury what the child said if the Court finds the statements are reliable.
While 90.803(23) makes it easier to prove a sex crime has been committed on a child it also makes it easier for a false accusation to be used in Court. Unscrupulous people in child custody cases and for other reasons have made false accusations. It takes a skillful and determined attorney to prove an accusation is false.
Florida Statute 794.011(4)(a) provides that if a person who is eighteen (18) years of age or older commits a sexual battery upon a person twelve (12) years of age or older but younger than eighteen (18) when the victim is asleep, unconscious or otherwise physically helpless the punishment is up to life in prison. This can apply if a victim is drugged or too drunk to communicate unwillingness to a sexual act.
Many a defendant has tried to claim they believed the victim was over the age of consent. Years ago this could often be a successful defense. Florida Statutes 800.04(3) now provides that the defendant’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the defendant’s bona fide belief of the victim’s age cannot be raised as a defense.
This means that if a victim displays a fake driver license or even a birth certificate and by physical appearance looks like an adult, a defendant cannot even argue apparent age as a defense to a Jury.
Many local State Attorney Offices have special divisions for prosecuting sex offenses. A Defendant will be facing a determined, experienced prosecutor. Only a savvy defense attorney can even the odds. With decades of experience the defense attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC know how to defend you against the most serious sex accusations.
