Sex Offenses

Sex crimes are very serious in the state of Florida, and therefore, carry significant consequences that are oftentimes long lasting if a person is ultimately convicted. Not to mention the other ramifications associated with being charged with a sex crime, including potentially losing your job, negative press, and tarnishing your reputation in the community. If convicted of a sex offense, not only will the defendant lose many years of their life behind bars—or even sometimes losing their life—a conviction will commonly require a person to register as a sex offender—or a sexual predator—for the rest of their lives. For crimes like sexual battery, universally known as rape, the time served in prison is day-for-day, meaning an individual is not eligible for gain time and must endure the entirety of their sentence. This means these inmates cannot earn a reduction in their overall sentence by work participation or good behavior while in custody. Due to the complexity frequently associated with these cases—not to mention your life being at stake—these crimes are not to be handled on your own. Protect yourself and hire a law firm with ample experience handling sex cases, and further, one that will fight for you.

I. Sexual Battery

There is a wide array of sex offenses in the state of Florida, including sexual battery, human trafficking, lewd and lascivious offenses—including molestation and sexual misconduct—possession of child pornography, prostitution, sexual assault, among countless other sex offenses. Sexual battery, commonly known as rape, is a unique crime in that it varies in severity based on the age of the parties. Similar to other sex crimes, sexual battery is aggressively prosecuted in the state of Florida, and therefore, it is encouraged that you confer with an attorney—especially one that is experienced.

Under Florida Statute 794.011, sexual battery is interpreted as oral, anal, or vaginal penetration by, or union with, the sexual organ of another individual or the anal or vaginal penetration of another person by any other object. This does not include an act carried out for the purposes of a genuine or real medical reason.

If the rape victim is under the age of 12 years old, the State does not have to prove the victim’s lack of consent—the victim’s age presumes the lack of consent. However, if the rape victim is over the age of 12 years old, the prosecution must illustrate the victim’s consent was not voluntary. In Florida, the State must prove lack of consent, but does not need to show that the victim resisted. Under Florida law, the term “consent” is interpreted as intelligent, knowing, and voluntary consent and does not include coerced submission. It is not deemed or construed to mean the failure by the alleged victim to offer physical resistance to the defendant. If the victim is mentally incapacitated and not able to give consent because he or she is in a coma or passed out from drugs or alcohol, and the perpetrator commits the sex act upon said person, then the offender could be convicted of sexual battery.

Generally, sexual battery is a second degree felony, punishable by up to 15 years in prison, 15 years of sex offender probation, a $10,000 fine, among other severe sanctions. Furthermore, regardless of prior criminal history, the Court must impose a mandatory minimum sentence of 7 ¾ years in prison, followed by at least two years of sex offender probation—this is not taking into account grounds for a downward departure sentence.

As mentioned in the introduction—for sex offenses like sexual battery—the time served in prison is day-for-day, meaning the defendant is ineligible for gain time and must bear the entire sentence. This means inmates cannot earn a reduction in their overall sentence by working their sentence down or by demonstrating good behavior while in custody. In addition to gain time ineligibility, a person convicted of a sexual battery will be classified as a sex offender or sex predator. Consequently, they must comply with sex offender and sex predator registration laws for the rest of their lives.

As previously mentioned, the severity of the offense is often determined by the ages of the parties involved—or the presence of aggravating circumstances. Regardless, sexual battery is a felony offense no matter how you look at it. However, please consider the following:

  • A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years old commits a capital felony.
    • Punishable by life or death.
  • A person under the age of 18 who commits a sexual battery on a child under 12 years old commits a life felony.
    • Punishable by 30 years to life in prison.
  • A person who commits a sexual battery on a person 12 years of age or older, without consent, and in the process uses or threatens to use a deadly weapon—or actually uses physical force which is likely to cause serious personal injury—commits a life felony.
  • A person 18 or older who commits a sexual battery on a person 12 years of age or older, but younger than 18 years of age, without consent and while the victim is physically helpless, commits a first degree felony, punishable by up to life in prison.
    • Physically helpless is interpreted as unconscious, asleep, or physically unable to communicate unwillingness to an act.
  • A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older, without consent and while the victim is physically helpless, commits a first degree felony.
  • A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older, without consent and without the use of physical force and violence likely to cause serious personal injury, commits a second degree felony.

Although sexual battery cases are known to be amongst the most serious offenses in the state of Florida; with the right legal team by your side these cases are certainly defendable. Oftentimes law enforcement is quick to make judgments during these types of investigations, and due to the high profile nature of these cases, they might not always make and/or do an objective investigation. In other words, regardless of the lack of physical evidence law enforcement might have against the accused, the defendant is already perpetuated or made out to be guilty—and the alleged victim often believed. As a disclaimer, this is not to say that all victim’s are lying or shouldn’t be taken serious. It’s just that in many cases, the alleged victim to a sexual battery usually has a personal relationship with the accused—and oftentimes those relationships go south or fall apart, and consequently, the accuser may have an underlying motive to bring sexual battery allegations against another. It’s not always like you see on television where it’s a surprise encounter and the perpetrator is some threatening stranger. Contrarily, the parties are usually past lovers, relatives, co-workers, neighbors, married couples, or acquaintances. These cases usually center around whether a female consented to the sexual interaction—that led to the defendant’s arrest.

Once you become aware of the sexual accusations against you, one of the most important things you can do is invoke your right to remain silent and consult with an attorney. Having a lawyer by your side can help negotiate your surrender, and further, may be able to fight for a lower bond at your first appearance—within 48 hours of your arrest. At first appearance, the judge will inform the accused of the charges against the defendant and will do what is called a probable cause determination. This is a review of the arrest report to determine if the facts alleged could support a conviction for the crime the defendant was arrested for or some lesser crime. If there is a finding of probable cause, the judge will usually ask if the accused is planning to hire a private attorney or if they elect to have a public defender, and then decide if a bond is appropriate—and if so, determine how much the bond should be set at. Having a private attorney advocating on your behalf—to show mitigating circumstances—may help reduce the bond amount in your case.

Remember, the State must prove beyond a reasonable doubt that the accused committed the crime they are accused of; therefore, you need a legal team by your side to represent you that’s going to question all facets of your case to poke holes and ultimately create doubt. Our law firm questions everything from the initial investigation, all the way up until the conclusion of the case—and the more doubt found or created, the more favorable the result, generally speaking. The following are some defenses—or mitigating factors—to a sexual battery charge:

  • Consent;
    • One of the primary defenses to a sexy battery charge.
    • Consent is interpreted as intelligent, knowing, and voluntary consent and does not include coerced submission.
    • It is not deemed or construed to mean the failure by the alleged victim to offer physical resistance to the defendant.
    • If the victim is mentally incapacitated and unable to give consent because he or she is in a coma or passed out from drugs or alcohol, and the defendant commits the act on that person, then the offender could be convicted of sexual battery.
    • Failure of the alleged victim to show physical resistance is not construed as consent—it’s merely something the jury may consider when ascertaining whether the sexual encounter was consensual or forced.
  • False Allegations;
    • Common in the state of Florida and a major defense to sexual battery charges.
    • There are numerous reasons why people find themselves accused of sexual battery, including, but not limited to, jealousy, disgruntled ex, marital infidelity reasons, manipulation of a child by a resentful parent, among others.
  • Challenge the accuser’s motives;
  • Sloppy police investigation;
    • Why wasn’t the accused questioned on scene?
    • If the accused wasn’t questioned on scene, why didn’t law enforcement follow up with questioning to get his or her side of the story?
    • Did law enforcement try corroborating the alleged victim’s allegations?
    • Was DNA evidence obtained or acquired?
    • Was any other physical evidence from the scene found, searched for, or tested?
    • Did law enforcement have a warrant to search?
  • Lack of controlled phone call;
    • Why didn’t law enforcement try to execute a controlled phone call to see if the accused would make any admissions or incriminating statements?
  • Lack of DNA evidence;
  • Lack of admission or incriminating statements;
    • A lot of these cases are “he said/she said” cases, so without a recorded or written admission it makes proving the case more difficult.
  • Among various other mitigating factors and defenses, including pre-trial and trial defenses.

As it specifically pertains to sex crimes in the state of Florida, one should be aware of the “Jimmy Ryce Act” and its potential consequences for those convicted of sex offenses—like sexual battery. The Act was named after a Florida case involving a young boy, Samuel James Ryce, who was the victim of a sexually dangerous individual who had prior sex-related offenses, and who was released from prison, and subsequently abducted, raped, and killed said victim. As a result of this case, once a person is convicted of a sex offense, the prosecution can have an imprisoned person subsequently committed to civil confinement, once their criminal prison sentence is completed. This requires a person to remain locked up—even though they have completed their prison sentence. As you can see, sex offenses are nothing to mess around with on your own.

II. Possession of Child Pornography

Similar to other sex offenses, the crime of possession of child pornography is aggressively prosecuted in the state of Florida.  The interesting thing about this crime is that it is often the case that an individual is charge with numerous counts of the same crime. This is due to the fact that under Florida Statute 827.071—the statute that governs possession of child pornography—each photograph or video is it’s own independent and separate crime. Therefore, for example, if an individual knowingly has 5000 pictures of child pornography, the prosecution can conceivably file 5000 charges against that person. Naturally, that example is rather hyperbolic—or exaggerated—but it’s almost never the case where the defendant has one picture or image—it’s often many materials that are found. As you can appreciate, this can turn into something very serious—as if one charge wasn’t serious enough.

Under Florida Statute 827.071(5)(a), possession of child pornography is defined as follows: it is unlawful to knowingly possess, control, or intentionally view a photograph, video, exhibition, show, representation, image, data, computer depiction, or other representation, that the defendant knows to include any sexual conduct by a child. As previously mentioned, the possession, control, or intentional viewing of each image or other representation is a separate offense. Further, if such material includes sexual conduct by more than one child, then each such child in each such material that is knowingly possessed, controlled, or intentionally viewed is a separate offense as well. Naturally, this does not apply to material possessed as part of a law enforcement investigation.

Under the statute, sexual conduct is interpreted as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. Note: a mother breast feeding her baby does not constitute sexual conduct. Under Florida law, a minor child is a person under the age of 18 years of age.

In the state of Florida, possession of child pornography is considered a third degree felony, with punishments ranging from up to five years in prison, five years of sex offender probation, and a $5,000 fine. Additionally, a conviction will result in the defendant being labeled as a sex offender, requiring that person to comply with sex offender registration laws, not only in the state of Florida, but throughout the United States—for the rest of their lives. Under Florida law, a defendant in possession of four or more images of child pornography scores mandatory prison—absent grounds for downward departure. Therefore, under these circumstances, the mandatory minimum is one year, with an extra four months for each additional count. It’s noteworthy to point out that the Court may impose a five-year prison sentence for each count. The Judge is given wide discretion in these cases and may impose the maximum.

Furthermore, this crime can be enhanced to a second degree felony if: (1) the accused is in possession of 10 or more images of child pornography, regardless of content; and (2) the content of at least one image contains one of more of the following:

  • A child younger than 5-years old;
  • Sadomasochistic abuse involving a child;
  • Sexual battery involving a child;
  • Sexual bestiality involving a child;
  • Any movie of a child, regardless of length and regardless of it containing sound

Under these circumstances, the crime is punishable by up to 15 years in prison, 15 years of sex offender probation, among other sanctions.

There are various defenses to a possession of child pornography charge. Please see the following:

  • Adult depiction;
    • The image in question is a person that is 18 years or older, even if they appear to be younger.
  • Images depict child erotica—not child pornography;
    • E.g. material that depicts young children in a sexually suggestive way.
  • D was not in knowing possession of the image or the image was not intentionally viewed;
    • Maybe the defendant was sent child pornography, but deleted it upon seeing what it was. However, a thumbnail image may still reside on that person’s device or the image may be stored in the computer’s memory—even though the main image was deleted. Under these facts, the image was not intentionally viewed and the residual was not knowingly possession, therefore, this defense may be raised.
  • Constitutional issues with illegal search and seizure.
    • Cases like this are often based on the search and seizure of a computer and other similar devices. Generally, law enforcement may not search these items without a valid warrant—or warrant exception. Thus, a defense lawyer may be able to challenge the legality of the search and seizure, which could result in the suppression of evidence.
  • Among other pre-trial and trial defenses.

III. Lewd or Lascivious Offenses

There are a range of lewd or lascivious offenses in the state of Florida—as it pertains to the offense being committed on or in the presence of a victim that is less than 16 years old. Some such lewd or lascivious offenses include lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition. The terms “lewd” or “lascivious” essentially mean the same thing: wicked, lustful or unchaste, licentious, or a sensual intent. These offenses fall under Florida Statute 800.04.

A. Lewd or Lascivious Molestation

Among the lewd or lascivious offenses highlighted under Florida Statute 800.04 is the crime of lewd or lascivious molestation. An individual commits the crime of lewd or lascivious molestation if they intentionally touch—in a lewd or lascivious manner—the breasts, genitals, genital area, or buttocks of a victim that is less than 16 years of age. This includes touching the outside clothing covering said areas. As previously mentioned, lewd or lascivious means in a lustful, wicked, sexual manner, or what would be considered indecent or shocking to a reasonable person.

Alternatively, lewd or lascivious molestation can be committed if the perpetrator forces or entices a person under 16 years old to touch said perpetrator. Lewd or lascivious molestation is a strict liability crime, meaning it does not matter that the perpetrator didn’t know the real age of the victim or that the child consented to the act—the performance of the sexual act on the child is enough to impute liability on the defendant.

As with most sex crimes, the age of the parties largely determines the severity of the penalties. Please see the following penalty guidelines as they pertain to lewd or lascivious molestation:

  • An offender 18 years of age or older against a victim that is less than 12 years old:
    • Life felony
  • An offender less than 18 years old against a victim less than 12 years of age; or an offender 18 years of age or older against a victim 12 years of age or older but less than 16 years old:
    • Second degree felony, punishable by up to 15 years in prison, 15 years of sex offender probation, and a $10,000 fine, among other sanctions.
  • An offender less than 18 years old against a victim 12 years of age or older but less than 16 years old:
    • Third degree felony, punishable by up to five years in prison, five years of sex offender probation, a $5,000 fine, among other sanctions.

Similar to sexual battery, an individual sentenced to prison for lewd or lascivious molestation will not be eligible for gain time and will serve their sentence day-for-day. Furthermore, if convicted, the defendant will be placed on sex offender probation and will be labeled a sex offender. As a sexual offender, the defendant will be required to comply with sex offender registration laws throughout the country for the entirety of their lives. The caveat or exception to the mandatory status as a sex offender is under Florida’s “Romeo and Juliet” law. However, the individual must meet strict criteria to fall under the exception—to be excluded from the registration requirement.

In short, for an individual to be exempt under Florida’s Romeo and Juliet law, they must meet the following eligibility requirements:

  1. The sex conviction was for a sexual battery or a lewd or lascivious offense;
  2. The sexual offense was a consensual sexual encounter with a 14-17-year-old minor;
  3. The victim was no more than four years younger than the offender at the time of the incident;
  4. No previous sex offenses on their record
  5. Lewd or Lascivious Conduct

Generally, an offender commits the criminal offense of lewd or lascivious conduct when the offender’s actions fall below lewd or lascivious molestation. Under Florida law, an individual commits the crime of lewd or lascivious conduct if said person intentionally touches a victim, who is under the age of 16-years-old, in a lewd or lascivious manner; or if a person intentionally solicits a person under 16 years of age to commit a lewd or lascivious act. The severity of the offense is dependent on the age of the defendant. A person 18 years of age or older who is charged with this offense faces a second degree felony, punishable by up to 15 years in prison—among other severe sanctions, including up to 15 years of sex offender probation. Additionally, this crime carries mandatory minimums that the Court must impose—absent grounds for a downward departure sentence. An offender who is 18 years old or older who commits this crime must be order a mandatory minimum sentence of 30 months in prison—followed by at least two years of sex offender probation.

Alternatively, if the offender is under the age of 18 years old and they commit lewd or lascivious conduct, they can be charged with a third degree felony. The punishment under these circumstances may include up to five years in prison, five years of sex offender probation, and a $5,000 fine—among other penalties the Court may impose. Lewd or lascivious conduct by a minor also carries a 30-month mandatory minimum prison sentence, followed by at least two years of sex offender probation. Further, similar to the above-mentioned sex offenses, the defendant is ineligible for gain time—for good behavior, etc.—and will need to comply with sex offender registration laws, not only in the state of Florida, but throughout the country. The only caveat, or exception, to the mandatory sex offender designation is if the individual falls under Florida’s Romeo and Juliet law—explained above.

Circling back to the mandatory minimums associated with this particular sex crime, there are certain mitigating circumstances that may allow the Court to deviate below Florida’s sentencing guidelines. Some such circumstances include the child being the initiator or a willing participant, the defendant having a mental condition that necessitates specialized treatment, and the offender being sentenced as a youthful offender before the defendant turns 21 years old.

Certain defenses are barred and cannot be raised. For instance, similar to other lewd or lascivious offenses, this is a strict liability crime, so the argument that the defendant did not know the age of the victim cannot be used—it does not matter. Even if the victim lies about his or her age, the defendant is still strictly liable. Further, the defense cannot argue that the victim consented to the crime nor can the offender try to raise a defense contending that the accused and the victim were close in age—although this could be use as mitigating circumstances for a downward departure.

Some of the prmary defenses to a lewd or lascivious conduct charge include false allegation and lack of lewd intent defenses—among other defenses we have successful employed in the past. There is a myriad of reasons why the victim would bring false allegations against the accused, including jealousy reasons or an angry parent manipulating a child. Our firm is experienced at exposing any motives that may exist in a case and do a thorough investigation to find out the truth. Another defense that can be raised is that the accused lacked any lewd intent—a crucial element of this crime

B. Lewd or Lascivious Exhibition

Under Florida Statute 800.04(7)(a), a person who intentionally masturbates; intentionally exposes the genitals in a lewd or lascivious manner; or intentionally commits any other sexual act that does not involve physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, in the presence of victim under the age of 16 years old, commits lewd or lascivious exhibition. The age of the defendant determines whether the accused will be charged with a third degree felony or a second degree felony. Under said statute, an offender 18 years of age or older who commits this crime commits a second degree felony, punishable by up to 15 years in prison. An offender less than 18-years old who commits a lewd or lascivious exhibition commits a third degree felony, punishable by up to five years in prison, five years of probation, a $5,000 fine, along with the common sex offense implications, including being declared a sex offender and complying with sex offender registration laws throughout the country.

IV. Prostitution

Prostitution is a crime in the state of Florida and is governed by Florida Statute 796.07. Under Florida law, prostitution is defined as the giving or receiving of the body for sexual activity for hire, but does not include sexual activity between spouses. Sexual activity is interpreted as oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for a genuine medical reasons. Generally, a first time prostitution offense is a second degree misdemeanor, punishable by up to 60 days in jail. A second offense is enhanced to a first degree misdemeanor, punishable by up to one year in jail. For a third or more prostitution offense, the individual can be charged with a third degree felony, which can result in up to five-years in prison, among other sanctions. It’s noteworthy to point out that a person charged with a third or subsequent violation must be admitted to a pre-trial intervention program or a substance abuse treatment program.

A. Solicitation of Prostitution

Solicitation of prostitution is governed by Florida Statute 796.07(2)(f), and is committed when an individual solicits, induces, entices, or procures another to commit prostitution, lewdness, or assignation. Lewdness is interpreted as any indecent or obscene action. Assignation means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

A first offense of solicitation of prostitution is considered a first degree misdemeanor, punishable by up to one year in jail, one year of supervised probation, and up to a $1,000 fine. The crime is enhanced to a third degree felony for a second offense. Therefore, for a second violation, the Court may impose any combination of the following: up to five years in prison, five years of probation, and a $5,000 fine. Note: a person convicted of a second offense must—at the very least—be sentenced to 10 days in jail. It should also be noted that if a vehicle was used in the course of the violation, the Court may order the defendant’s vehicle to be impounded or immobilized for up to 60 days. If the offender commits a third or subsequent violation, the crime is enhanced to a second degree felony, punishable by up to 15 years in prison, 15 years of probation, and a $10,000 fine. The Court may also impose a vehicle impound or immobilization for up to 60 days. Additionally, there is a mandatory minimum 10 day jail sentence that the Court must order.

In addition to other penalties, the Court must order a person convicted of solicitation of prostitution to complete 100 community service hours and pay for and attend an educational program about the negative effects of prostitution and human trafficking, such as a sexual violence prevention educational program, including such programs offered by faith-based provides—if such programs exist in the judicial circuit in which the offender is sentenced. Further, the defendant must undergo screening for sexually transmissible diseases and pay a $5,000 civil fine.

What are the advantages of doing a pre-file investigation on a sex case?

If you are accused of any sex offense, it is highly encouraged that you seek the services of an attorney immediately, so they can perform a pre-file investigation on your case. The beginning stages of a person’s case are especially crucial because this allows the attorney on the case to get in contact with the prosecution and influence their decision on filing formal charges—also known as the information. The attorney may be able to present favorable evidence to the prosecutor, including information from favorable witnesses, as well as highlight issues that might exist with the State’s case. The filing decision is a crucial part of a person’s case, and sometimes, if presented the right away, the prosecutor may elect to file on something lesser, or not file charges at all.

If you are accused of sexual allegations, we are here to help. Contact the Schisani Law Firm, P.A. at (407) 853-2606 or via e-mail at [email protected].