Sex crimes carry some of the most severe, long-term, damaging penalties of any crime, including possible life imprisonment. With potentially extreme consequences for the accused, sex crime cases are highly fact-driven and often present no available witnesses beyond the victim and alleged defendant. If you are facing charges for a sex crime, such as inappropriate touching, sexual battery, or rape, you should contact a criminal defense attorney immediately. An attorney can help you better understand not only the procedural aspects of a sex offense case, but the legal ramifications of a guilty plea, or a not-guilty plea and a subsequent trial.
Distinguishing Between the Various Sex Crimes
Florida statutes cover numerous sex-related crimes in order to try to capture all activity related to sexual misconduct. When it comes to sex crimes, there are multiple factors that differentiate one offense from another. These factors may include victim age, use of force or a weapon, and the parties’ relationship. The most common sex crimes are explained below:
Sexual battery is defined in Chapter 794 of the Florida Statutes as “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”, excluding such acts done for a bona fide medical purpose. It is a broad category of offenses typically classified according to degrees. The degrees depend on the presence of factors that can make a crime more severe, referred to as aggravating factors. For example, statutory sexual battery occurs when the victim is younger than the lawful age to consent to sexual intercourse. Other factors include whether the perpetrator held a position of trust over or was significantly older than the victim. Sexual battery can carry the highest penalty and may involve allegations of extreme violence, deadly weapons, severe bodily injury, or an exceptionally young or vulnerable victim.
Under Chapter 794, consent may only be given freely, voluntarily, and intelligently. Consent cannot be considered free if it was the product of undue influence or if it was only permitted through coerced submission. It is not necessary for an individual to fight back or to engage in a physical altercation in order to demonstrate lack of consent.
F.S. 794.011 provides examples of those who cannot provide sufficient legal consent. This includes but is not limited to those who are mentally incapacitated (one who is suffering temporary impairment from the presence of a narcotic, anesthetic, or other intoxicating drug that was administered without the victim’s consent), physically helpless (one who cannot effectively communicate or physically defend against sexual contact, whether because they are unconscious, asleep, or physically unable to communicate lack of consent for some other reason), mentally defective (one suffering a mental disease or defect rendering them incapable of understanding sexual contact), or threatened with violence or retaliation.
Age also plays a role in deciding whether a sexual battery has occurred and, if so, how serious the offense should be treated with respect to punishment. Some individuals are treated as statutorily unable to consent based on age. Additionally, the age difference between the accused offender and the victim can make potential penalties significantly more serious. For example, under Chapter 794, an offender over 18 years old who is found to have committed or attempted to commit sexual battery upon a child under 12 years old will have committed a capital felony, punishable by sentencing as serious as death or life imprisonment. Even an offender under the age of 18 can potentially be punished with life imprisonment for committing sexual battery on a child under the age of 12. If sexual battery is committed on a person over 12 years old, but the offender uses a deadly weapon or actual physical force likely to cause serious personal injury, this can also be punishable by life imprisonment. Sexual battery without consent committed by a legal adult against a victim between 12 and 18 years old is also treated seriously; it is classified as a felony of the first degree and punishable by a sentence not exceeding life. Similarly, sexual battery without consent committed on an adult over 18 years of age will also be treated as a felony of the first degree. Harsh punishments are possible even where the offender is younger than 18 years of age. For example, sexual battery can still be charged as a felony in the first degree if the victim is physically helpless.
Adding to the seriousness and severity of a sexual battery charge, defenses may be limited by the facts and circumstances surrounding the charge. For example, willingness and consent of a victim do not constitute a defense if the offender is in a position of familial or custodial authority to an individual under 18 years old and solicits that person to engage in any act that meets the definition of sexual battery under the statute. Additionally, under some circumstances, acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent, and it is not a defense to argue that the offender did not actually have authority or control if the circumstances were such that the victim was led to reasonably believe the offender held such a position of power.
Lewd or Lascivious Conduct:
Florida has strict lewd and lascivious behavior laws, which often carry significant penalties. F.S. 798.02 provides that if any man or woman “engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree.” Nearly all convictions for lewd or lascivious conduct may carry a prison sentence and the requirement that the defendant register as a sex offender. The criminal lewd and lascivious behaviors are further broken down in Chapter 800 of the Florida Statutes, covering conduct with respect to minors, employees, and students. The behaviors prohibited include battery, molestation, lewd conduct, and exhibition.
Lewd or lascivious battery is defined as engaging in sexual activity with any person between the ages of 12 and 16 or “encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any act involving sexual activity.” Molestation involves intentional touching of a victim under 16 years old in the genitals, buttocks or chest, including such touching through clothing. Further, encouraging or coercing the victim to touch those areas on the offender’s body is also a crime under F.S. 800.04. It can even be as serious as a life felony if the victim is under 12 years old. The statute also encompasses other forms of touching done in a lewd or lascivious manner, categorizing it as lewd conduct. Exhibition, referring to intentional exposure or masturbation, is also prohibited under F.S. 800.03.
F.S. 800.04, the Lewd and Lascivious Statute, limits the defenses available for prohibited conduct. For example, it is not a defense to assert the belief that the victim was of the age of majority, nor does the state of Florida recognize a minor as capable of providing consent. Additionally, even contact with the victim’s body may not be necessary for a lewd and lascivious battery charge if the victim is between the ages of 12 and 16; in that case, it is enough to coerce engagement in sexual activity to be found guilty of battery under this statute. F.S. 800.04 also provides that it is not a defense to assert “the victim’s lack of chastity” or that the victim consented where lewd and lascivious conduct is committed in the presence of an individual under 16 years old.
The defenses are limited, and the stakes are high for the conduct prohibited under Chapter 800 of the Florida Statutes. The specific penalties available for each charge are contained within F.S. 800.04. Prior related offenses will increase severity of the charges and penalties available. If you have been charged with any of these crimes, you should consult with an experienced criminal defense attorney as soon as possible.
Possession and Transmission of Child Pornography:
At the state level, Florida has criminalized the promotion, sales, or production of child pornography. Child pornography includes any visual materials that depict sexual conduct of a minor (anyone under the age of 18). Florida will prosecute those who view, control, or possess pornography involving a minor, even if the consumption or possession of child pornography is done in your home. There are two state laws that prohibit and criminalize conduct related to child pornography: Chapter 847 (prohibiting obscenity) and Chapter 827 (prohibiting child abuse) of the Florida Statutes.
Chapter 847 is titled Obscenity and is specifically designed to prevent the sexual exploitation of minors and to protect minors from deviant and prurient interests of consenting adults. For example, this statute makes showing obscene material to a minor a third-degree felony. Under Chapter 847, obscenity is defined as material an adult would object to under today’s prevailing standards because the material appeals to the prurient interest, depicts sexual conduct in an offensive manner, and as a whole has no value in literature, artistically, politically, or scientifically.
Chapter 827 contains what is often referred to as “the Child Pornography Statute.” It makes it a criminal offense to knowingly control, possess, or intentionally view a photograph, computer depiction, image, data, show, movie, or exhibition that depicts any type of sexual conduct involving a child. Each individual photograph or other child pornography graphic constitutes a separate charge. This means that if you were found with several hundred images, you would be charged with several hundred counts of the offense. Additionally, if there is more than one child engaging in sexual conduct in the image, then you will be charged with separate offenses for each child.
Simple possession of child pornography is a third-degree felony. Conviction of possession of child pornography can result in up to five years imprisonment and/or a fine as large as $5,000. If you are charged with multiple counts of possession of child pornography, you could face that penalty for each separate count. For example, ten counts of possession of child pornography can result in $50,000 in fines and fifty years in prison.
Further increasing potential penalties for child pornography is F.S. 847.0137. This section provides that it is also a criminal offense to transmit child pornography to another person, as long as you knew or reasonably should have known that you were transmitting child pornography. Transmission of child pornography is also a third-degree felony that carries the same penalties as a conviction for possession of child pornography. If you are convicted of possessing child pornography with the intent to promote, such as selling, manufacturing, giving, or distributing, or if you are convicted of creating child pornography, you will face second-degree felony charges with up to 15 years in prison per charge. Under Florida law, a person who possesses three or more copies of a sexual performance involving a child could also be charged with intent to distribute or sell the materials to others.
If you have been charged with the crime of child pornography, it is necessary for the prosecutor to show that you knowingly and voluntarily engaged in activities prohibited under the Child Pornography Statute.
It is illegal in Florida for someone over the age of 18 to have sex with someone under the age of 18, even if the sex is consensual. This is premised on the assumption that minors are incapable of giving informed consent to sexual activities. Though such a charge does not require proof of assault, it is still designated as rape. Statutory rape is prosecuted under Florida’s sexual battery and lewd and lascivious conduct laws. The penalties depend on the ages of the offender and the victim, as well as the specific circumstances surrounding the unlawful sexual act. For example, sexual penetration (with an object or body part) between a minor who is 16 or 17 and an adult who is over 24 years old will be treated as a second-degree felony, with penalties including a fine of up to $10,000, as many as 15 years in prison, or both.
Florida laws also provide charges for a defendant who is over 21 years old and impregnates a minor under the age of 16 as a result of statutory rape. The penalties for contributing to the delinquency of a minor include up to five years in prison and/or a fine of up to $5,000.
Unlike standard rape charges, consent is not a defense to statutory rape. Because minors are legally incapable of providing consent to sexual activities under the law, even if the minor “consented,” the sexual activity is considered illegal. An exception to this rule is the “Romeo and Juliet” Exception. This exception is intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In Florida, the Romeo and Juliet Exception provides that if the minor is 13 to 17 years old and the defendant is less than 4 years older than the victim and meets other eligibility requirements, the defendant may not be required to register as a sex offender. However, the exception does not prevent the offender from being fined, imprisoned, or both.
Reasonable mistake of age is a claim that defendants accused of statutory rape often seek to make to defend against the charge. The defense argues that they had no reason to know the victim was underage and/or that the victim represented that he or she was older, and a reasonable person would have believed the victim. However, even a reasonable mistake as to the victim’s age is not a defense to a charge of statutory rape in the state of Florida.
Prostitution and Procurement of Prostitution:
Chapter 796 of the Florida Statutes defines prostitution offenses. Specifically, F.S. 796.07 prohibits and criminalizes the act of prostitution, as well as solicitation of a prostitute. It also includes language designed to punish people who turn private property into houses of ill repute and massage parlors into locations where lewd acts may be performed. F.S. 796.06 penalizes property rental for the purpose of performing lewd acts or running a prostitution ring from the property. F.S. 796.04 criminalizes attempts to compel another into prostitution, and F.S. 796.05 outlaws pimping or collecting money from prostitution. Collectively, these sections establish the crimes and penalties related to prostitution, pimping, and pandering.
The defenses to an action for exploitation or coercion into prostitution are limited. It is not a defense to claim that the victim was paid or otherwise compensated for acts of prostitution, nor is it a defense if the plaintiff engaged in acts of prostitution prior to any involvement with the offender. For this reason, evidence of convictions for prior prostitution or prostitution-related offenses are inadmissible for purposes of attacking the plaintiff’s credibility. Additionally, it is not necessary for the victim to attempt to escape, flee, or otherwise terminate contact with the defendant in order to support a charge of coercion.
F.S. 796.08 also makes it a criminal offense if a prostitute or one who procures another for prostitution (often referred to as a pimp) had knowledge prior to sexual conduct that the prostitute had tested positive for human immunodeficiency virus (HIV) and could possibly communicate such disease to another through sexual activity. The crime is criminal transmission of HIV, and it is a felony of the third degree. This may be a separate conviction and sentencing from the underlying crime of prostitution or procurement of prostitution.
Victims of human trafficking are typically young children, teenagers, and vulnerable adults. In an attempt to penalize perpetrators of human trafficking for their conduct and to protect and assist the victims of trafficking. F.S. 787.06 criminalizes human trafficking, which is defined therein as “transporting, soliciting, recruiting, harboring, providing, enticing, maintaining, or obtaining another person for the purpose of exploitation of that person.” The statute also provides that “victims of human trafficking are subjected to force, fraud, or coercion for the purpose of sexual exploitation or forced labor.”
Coercion is defined by F.S. 787.06 as the following: 1) using or threatening to use physical force against any person; 2) restraining, isolating, or confining or threatening to restrain, isolate, or confine any person without lawful authority and against his or her will; and 3) using lending or other credit methods to establish a debt by any person when labor or services are pledged as a security for the debt, if the value of the labor or services as reasonably assessed is not applied toward the liquidation of the debt, the length and nature of the labor or services are not respectively limited and defined; 4) destroying, concealing, removing, confiscating, withholding, or possessing any actual or purported passport, visa, or other immigration document, or any other actual or purported government identification document, of any person; 5) causing or threatening to cause financial harm to any person; 6) enticing or luring any person by fraud or deceit; or 7) providing a controlled substance to any person for the purpose of exploitation of that person.
F.S. 787.06 provides penalties for any person who is found to have knowingly, or in reckless disregard of the facts, engaged in human trafficking, attempted to engage in human trafficking, or benefited financially from the participation in a venture that subjected a person to human trafficking. If the human trafficking involves any child under the age of 18, the offender will be tried for a felony of the first degree. If the human trafficking involves coercion for commercial sexual activity of an adult, this crime is also a felony of the first degree. Human trafficking using coercion for commercial sexual activity with the transfer or transport of an adult from outside to within the state is also a felony of the first degree. If the human trafficking involves commercial sexual activity of any child under the age of 18, the crime will be treated as a felony of the first degree punishable by imprisonment for a term of years not exceeding life. If the human trafficking includes commercial sexual activity with a child or any person mentally defective or mentally incapacitated, the crime is a life felony. Parents, legal guardians, or other adults with custody or control of a minor who sells, offer to sell, or otherwise transfers custody or control of such minor, with knowledge or in reckless disregard of the fact that such a transfer will subject the minor to human trafficking, has committed a life felony.
As with pornographic material charges, for each individual instance of human trafficking, a separate crime can be charged, and a separate punishment will be authorized accordingly. Defenses to human trafficking are limited. A victim’s lack of chastity or the willingness or consent of a victim is not a defense to prosecution under this section if the victim was a minor at the time of the offense.
Potential Penalties and Sex Offender Registration
F.S. 775.082 enumerates the possible incarcerated sentences for crimes in Florida. Depending on severity, a crime may be treated as a capital felony, a life felony, a first-degree felony, a second-degree felony, a third-degree felony, a first-degree misdemeanor, or a second-degree misdemeanor. Minor sex crimes, such as solicitation of a prostitute, may be treated as misdemeanors with less than a one-year jail sentence for a first offense, or they could result in diversion programs instead, depending on the offender’s prior criminal history. More serious sex crimes can carry a sentence of up to life with the potential for parole, or a term of years. The offender will also most likely receive a period of probation to be served after incarceration. However, for the most severe sex crimes, such as those involving sexual violence or underage victims with grievous bodily injury, the offender could be sentenced to life in prison without the possibility of parole or death for committing a capital felony in the state of Florida.
Specifically, with respect to sexual battery, the potential penalties are as follows, in order of least to most severe:
- If the crime is committed by a minor (an individual under the age of 18) against a victim under the age of 12 and the sexual organs are injured, the offender will be charged with a felony, punishable by life imprisonment and/or a fine of $15,000.
- If the offender is over 18 and commits an act of sexual assault or attempts to on the sexual organs of a victim between the ages of 12 and 18, the offender will be charged with a felony of the first degree, punishable by a fine of $10,000 and/or imprisonment not to exceed 30 years.
- If the crime is committed by an offender over 18 years old and the sexual assault or attempted sexual assault does not involve a minor, the offender will be charged with a first-degree felony, punishable by a fine of $10,000 and/or imprisonment up to 30 years.
- If the offender is under 18 years old and commits or attempts to commit an act of sexual assault against a victim over 12 years old, the offender will be charged with a first-degree felony, punishable by a fine of $10,000 and/or imprisonment that does not exceed 30 years.
- If the crime is committed by threatening the victim with a deadly weapon or if life-threatening physical violence is used, the offender will be charged with a life felony.
- If the crime is committed by an adult against a child less than 12 years old and the sexual organs of the victim are injured, the offender will be charged with a capital felony.
With respect to sexual abuse, where the sex crime does not involve the use of physical violence as part of coercion tactics, the potential punishments are less severe but also depend on the ages of the culprit and victim involved. The potential penalties are as follows, from least to most severe:
- Any person under 18 years old who commits sexual abuse against a victim who is over 12 years old will be charged with a second-degree felony, punishable by a $10,000 fine and/or a prison sentence up to 15 years.
- Any person over 18 years old who commits sexual abuse against a victim who is also over 18 years old will be charged with a second-degree felony punishable by a $10,000 fine and/or a prison sentence up to 15 years.
- Any person over 18 years old who commits sexual abuse against a victim between the ages of 12 and 18 will be charged with a first-degree felony, punishable by a fine of $10,000 and/or imprisonment up to 30 years.
Sexual battery of a student is covered by F.S. 800.101 and dictates that authority figures working at a school or any school-related organization cannot initiate and/or engage in any sexual conduct or a romantic relationship with a student. It provides the following penalty: Any individual who violates this law will be charged with a second-degree felony, punishable by a $10,000 fine and/or a prison sentence of up to 15 years. It should be noted that this crime does not fall under the same category as crimes committed by a teacher, which are outlined in F.S. 775.0862 .
Sexual harassment through stalking is covered by F.S. 784.048(3). It provides that any individual who willingly, maliciously, and continuously pursues, harasses, or cyberstalks a victim will be charged with a first-degree misdemeanor, punishable by a $1,000 fine and/or a prison sentence of up to one year. People who have been previously charged with sexual harassment via stalking and reoffend resulting in damage to the victim’s property will be charged with a third-degree felony, punishable by a $5,000 fine and/or a prison sentence that does not exceed 5 years. Where children are involved, if an offender stalks or cyberstalks a child under 16 years old, the charge will be aggravated stalking. Aggravated stalking is a third-degree felony punishable by a $5,000 fine and/or a prison sentence of up to 5 years. Cyberstalking is defined by F.S. 784.048 as a situation in which a culprit shares an image depicting the victim posing in a sexually explicit manner (intended to be private), or an image where the victim has been photographed unintentionally. In this case, “sexually explicit images” covers any images depicting nudity.
Human trafficking is considered a severe offense. The penalties depend on the details of the crime, pursuant to F.S. 787.06(4). If the offender is a parent, guardian, or supervisor of the victim, they will be charged with a life felony, punishable by life imprisonment and/or a fine of $15,000.
Child molestation is also considered a severe crime and is punished accordingly. A person can expect a minimum of 25 years in prison up to a life sentence if convicted of child molestation. The Florida child molestation laws protect children ages 16 and under from exploitation by adults who prey on children for deviant sexual needs and wants. Even after conviction and release from prison, the consequences are extreme and lasting. Examples of possible consequences are the permanent addition of your name to the Florida state and National Sex Offender Registry and restrictions on where you can live, work, and travel.
F.S. 775.21 is the Florida Sexual Predators Act. It is a comprehensive piece of legislation designed to prevent sexual predators from committing further additional acts of sexual violence. For those offenders who are convicted but will be released from prison, most will be required to register as a sexual predator or as a convicted sex offender with the sheriff in the county in which he or she resides. The duty and requirement to register is a separate determination from prison sentences and probationary terms imposed by the court; the judge can make a written finding deeming an offender a sexual predator and mandating reporting upon release. The consequences of sex offender registration can be far reaching for convicted offenders. For example, the ability to reside in certain areas is restricted based on proximity to schools, parks, or daycare. Additionally, convicted sex offenders may be required to forfeit internet connections. Pursuant to the statute, the local sheriff’s office is required to publish notice to the public about the sex offender’s designation and registration.
Defenses to Sex Crimes
Conviction for any type of sex offense in the state of Florida will lead to serious and lasting consequences, not only with regard to criminal penalties, but also with sex offender registration requirements for the rest of your life. Beyond paying fines or enduring incarceration for such a conviction, you will also find it more difficult to obtain employment, housing, professional licenses, loans, education, or government assistance.
By working with a criminal defense attorney, you can determine which sex crime defenses either lessen culpability or assist you in avoiding prosecution all together. The defense of consent is often invoked, where possible. It requires a showing that, with regard to the particular sex act in question, the alleged victim actually consented to the sexual interaction. If the prosecution is alleging certain aggravating factors to enhance your potential penalties, you may be able to introduce evidence to rebut the presence of those factors, which could result in a guilty plea to a crime with a lesser punishment.
In defense of child pornography charges, defenses available include asserting any of the following: 1) you were not the person who downloaded the images to your computer (i.e., another person did so, or the images were transmitted via a computer virus causing unwitting possession); 2) the images were erotica not pornography – a difference in degree, but one that can make the difference in conviction, none the less; 3) the police did not abide by constitutional restrictions and obtained the evidence through unlawful search and seizure; or 4) you suffered entrapment by law enforcement. The entrapment defense can be used when law enforcement created a situation that influenced your participation in a criminal act, which you arguably would not have engaged in had the law enforcement officials not intervened.
The entrapment defense may be used where undercover sting operations are involved. Florida law enforcement officials use undercover operatives to infiltrate prostitution rings, human trafficking operations, and street-level sexual behavior. People of all ages and walks of life have been subjected to undercover stings. A sting can take many forms: officers could pose as children and talk to people online; female police officers may dress like a prostitute to try to catch a “john” in a sting; officers could post fake advertisements on internet websites to try to lure a “john” in an attempt to solicit a prostitute or distribute pornographic imagery of children.
The most common sex sting targets vulnerable and naive men on adult dating sites. Law enforcement officers use adult dating sites posing as another adult. They trick men into chatting with them through bait and switch tactics. After men have been lured in, they often change the age of the person they are pretending to be and seduce men who had no initial intention of interacting with a child. If you talked to someone online who later changed their name to reveal they were a minor, and after further involvement, you discover you were caught in an internet sting operation, entrapment may be a defense available to you.
F.S. 777.201 lists the elements of entrapment. It is an affirmative defense available for the accused to argue when a police officer has violated the accused’s rights to due process. Entrapment occurs when a police officer enticed or persuaded the accused to commit a crime, and the methods employed by the agent of the police to overcome the person’s will were such that the police agent created a substantial risk that an otherwise innocent person would commit the crime. The question asked for this defense is whether the person charged with the crime was “predisposed” to commit the act or would not have done so without police officer entrapment. The accused has the burden to prove that the offense was only committed as a result of entrapment.
An additional defense available to those accused of sex crime solicitation is the statutory defense of withdrawal. It is an affirmative defense of renunciation in which the accused must show that he or she withdrew from the criminal act. To successfully withdraw from solicitation, the accused must have voluntarily and completely withdrawn and therefore prevented the crime from taking place or abandoned the crime, persuaded the individual solicited to abandon the act, or stopped co-conspirators from committing the crime as planned.
If you are facing a sex crime, you could potentially endure serious, life-changing consequences. To protect your rights and ensure your continued freedom, you need a compassionate, confidential, and aggressive advocate in your corner to combat the prosecutor’s allegations and help protect you from incarceration, penalties, and mandatory sex offender registration. Contact our knowledgeable criminal defense law firm today to schedule a consultation to discuss your case and learn more about your options.