Tampa Attorney Explains Florida's Sexual Battery Statute
Sexual battery remains one of the most serious crimes under Florida law. Generally, the offense is defined as sexual penetration without consent (also known as rape or sexual assault). The statutory language for sexual battery can be found in Florida Statute Section 984.011. A general summary of the elements of the charge, penalties and punishments are provided below.
As the Duke Lacrosse case demonstrated, law enforcement officers can rush the investigation. The high-profile nature of the accusations also contributes to a less than objective investigation. Law enforcement officers often believe the alleged victim even as the physical evidence begins to pile up that contradicts those accusations.
When people think of rape they immediately think of an encounter with a stranger. However, the crime of sexual battery is most often alleged between two people who know each other such as acquaintances, friends, co-workers, classmates, relatives, neighbors, dating partners. or even married couples. Often these cases hinge on whether a female "consented" to sexual intercourse after drinking alcohol or using drugs.
The attorneys at the Sammis Law Firm represent individuals charged with sexual battery throughout the greater Tampa Bay area including Hillsborough County, Polk County, Pasco County and Pinellas County, Florida. Although we are selective in the cases we accept, we are proud to aggressively represent our clients against a false accusation of sexual battery in the cases that we do accept.
Our first step in these cases involves completing a thorough investigation into all circumstance surrounding the events to preserve favorable evidence. The defenses in these cases often hinge on rulings made during pre-trial hearings. We take a scholarly approach to examining and dissecting each part of the prosecutor's case. Contact an experienced sexual assault defense attorney in Tampa as early in the process as possible so that all avenues of attacking the charges can be preserved.
Sexual Battery Under Florida Statute 794.011
Contacting an Attorney Immediately After an Accusation of Sexual Battery
After an accusation of sexual battery, contacting a criminal defense attorney can be critical. Law enforcement officers are trained to descend on the work place or home of the accused. The detective has one goal - obtaining statements that could implicate the accused in the crime.
Individuals who are innocent of the accusation should be particular careful not to make any statements. Those statements can be misconstrued and ultimately used against you. Your side of the incident can best be told through your criminal defense attorney who can preserve favorable evidence and witness testimony.
Remain Silent After an Accusation of Sexual Battery
You can invoke your right to remain silent by telling the officer, "I will not make any statement until my attorney is present." Then remain silent. For more than 200 years, our constitution has recognized our most important civil liberty against self-incrimination. The fact that you asked for an attorney can never be used against you at trial. Therefore, in most circumstances, no downside exists to invoking your right to remain silent until after speaking to an attorney.
Hiring an Attorney Before an Arrest for Sexual Battery in Tampa Bay
In many of these cases, the person accused is told of the accusation by law enforcement prior to any arrest being made. By hiring an attorney as early in the process as possible your attorney can assist the investigating officers in undercoving favorable evidence which might lessens the chances of an arrest.
In the event law enforcement officers intend to make an arrest, your attorney can notify the officers of the fact that you have invoked your rights to remain silent and your right to an attorney. Your attorney may be able to negotiate the terms of your surrender and even fight for a lower bond amount at the first appearance within 24 hours of your arrest.
A good criminal defense attorney may ultimately save you money very early in the case by fighting for a reasonable bond allowing you to avoid throwing money away to a bail bondsman.
Pre-file Investigations After an Arrest for Sexual Battery in Florida
Within 21 days of the arrest for sexual battery in the greater Tampa Bay area, the prosecutors with the State Attorney's Office will decide whether to formally file charges. By having a Tampa criminal defense attorney during those 21 days, your attorney may be able to:
- present favorable evidence to the prosecutor,
- provide the contact information for favorable witnesses,
- show problems that might exist with the prosecutor's case
The filing decision is the most important event that will occur in the case. In many of these cases, the prosecutor elects not to file any charges. Presenting favorable evidence through a criminal defense attorney is an important part of making sure a fair result occurs.
Sexual Battery or Rape Allegations at College Campuses in Tampa
The number of sexual battery allegations has risen dramatically on college campuses throughout Florida including the University of Tampa and the University of South Florida. Recent studies based on a survey of 6,129 college students enrolled at 32 educational institutions in the United States have shown shocking statistics including:
- One in eight college women report having been raped while 54% of women surveyed reported being the victim of some form sexual abuse;
- 84% of those women knew their assailant prior to the attack; and
- 57% of those rapes happened on a date.
Contact an experienced criminal defense attorney immediately after learning of an accusation of sexual battery by a college student from Tampa in HIllsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County or St. Petersburg or Clearwater in Pinellas County, Florida.
Definitions in Florida's Sexual Battery Statute
- Sexual Battery - Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
- Victim of Sexual Battery - Florida law defines the term "victim" to mean any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
- Sexual Battery Offender - Florida law defines the term "offender" to mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
- Consent - Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any "coerced submission" that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Florida's Penalties for Sexual Battery
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties. Under the Jimmy Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.
Sexual Battery - Capital Felony under Florida Law
If the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished as a capital felony under Florida law.
Sexual Battery - Punishable by Life Felony under Florida Law
- If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
- If the act of sexual battery is committed against a person who is 12 years of age or older without the person's consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.
Sexual Battery - First Degree Felony
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent under the following circumstances:
Physically Helpless - When the victim is physically helpless to resist. Florida law defines the term "physically helpless" to mean being asleep, unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.
Serious Personal Injury - When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.
Retaliation - When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term "retaliation" is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.
Mentally Incapacitated - When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term "mentally incapacitated" to mean being temporarily incapable of controlling or appraising the victim's own conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim's consent or due to any other act committed upon the victim without consent.
Mentally Defective - When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines "mentally defective" as any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.
Physically Incapacitated - When the victim is physically incapacitated. Florida law defines the term "physically incapacitated" as meaning any bodily impairment or handicap that substantially limited the alleged victim's ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.
Sexual Battery by Law Enforcement, Probation, or Correctional Officer- Florida Statute (4)(g)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent when the offender is in a position of authority or control. Additionally, the victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender. Occupations that are included within term position of control or authority include:
- law enforcement officer;
- correctional officer;
- correctional probation officer;
- officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
- or anyone who leads the victim to reasonably believe that the offender is in a position of control or authority as an employee or agent of government.
Anyone who has been the victim of an act of sexual violence by a law enforcement officer, probation officer, correctional officer, or prison guard should discuss the case with an experienced civil rights attorney in the greater Tampa Bay area. The law enforcement agency that will investigate the claim may not gather all of the evidence against the person accused. Additionally, although victims are rarely prosecuted for bringing false claims, the victim of a sexual assault or battery by a law enforcement officer can be charged with providing false allegations in a specially created statute to protect law enforcement officers.
False Accusations of Sexual Battery under Florida Law 794.011(4)(g)
Florida Statute Section 984.011(10) provides any any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree punishable by five years in Florida State Prison.
Surprisingly, such a criminal provision does not apply when the person falsely accused is not a law enforcement officer or other person in authority or control.
Sexual Battery - Second Degree Felony
A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use violence or physical force likely to cause serious personal injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.
Sexual Battery - Custodial or Familial Position of Offender
If the person accused is in a custodial or familial position of authority over the victim, then the victim's consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.
In other words, it is not a defense that the person accused was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.
Victim is 18 years old or older - If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.
Victim is between 12 and 17 - If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.
Victim is under 12 years old - If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the crime is punishable as a capital or life felony.
Related Links
Florida's Sexual Assault Counselor-Victim Privilege - Read more about cases in which the alleged victim's allegations lack credibility or contain inconsistent statements, or the rape allegations not supported by the physical evidence. The criminal defense attorney representing the person accused will often attempts to obtain the substance of the first statements made by the alleged victim about the accusation of rape. Florida Statute Section 90.5035 provides for an absolute privilege of "confidential" communications between a sexual assault counselor or a trained volunteer at a private or public rape crisis centers, but only when the conditions of the statute are met.
Florida's list of Qualifying Offenses for Sex Offender Registration Includes Sexual Battery - Information from the Florida Department of Law Enforcement website on sexual offenders and sexual predators, the Florida Sexual Predators Act under Florida Statute Section 775.21, and the Registration of sexual offenders for sexual battery or aggravated sexual battery under Florida law.
Sexual Battery Information from the University of Florida Police - Safety tips from the University of Florida Police Department, Community Services Division concerning how students at colleges and universities can lessen the chances of a violent attack.
University of Tampa's Guidelines on Sexual Assault - Each university or college throughout the greater Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the educational institution even if the allegations occurred off-campus are not prosecuted by the State Attorney's Office. Read more about the guidelines for sexual assault developed by the University of Tampa, including survivor assistance guides, educational programs, counseling programs, the rape victim's hotline, and campus disciplinary proceedings after an investigation by the Tampa Police Department or the Hillsborough County Sheriff's Office.
University of South Florida (USF) Guidelines on Sexual Assault - The Victims' Advocacy Program will assist University of South Florida (USF) students or employees who are victims of actual or threatened violence including assault, battery, sexual assault or sexual battery. The University of South Florida Police Department often investigate these allegations and report statistical information concerning rape allegations by students or employees of the University of South Florida.
Conclusion
If you have been accused of sexual battery in the greater Tampa Bay area, including Hillsborough County, Clearwater or St. Petersburg in Pinellas County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, Florida, then contact an experienced criminal defense attorney at the Sammis to discuss the allegations against you.
Although we are selective in the cases we take, we take great pride in representing individuals who have been falsely accused of serious criminal offenses including sexual assault or battery. Call us today to discuss the facts of your case during a confidential free consultation.