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Sexual Battery

In Florida, the crime of sexual battery is defined as sexual penetration without consent. In other jurisdictions, sexual battery is called “rape” or “sexual assault.” The article explains the charge, penalties, and punishments for the crime of sexual battery found in Florida Statute Section 984.011.

As the Duke Lacrosse case demonstrated, law enforcement officers sometimes rush to judgment during rape investigations. The high-profile nature of the accusations might contribute to a less than objective investigation. Law enforcement officers often believe the alleged victim even as the physical evidence begins to pile up to show that the accusations are false.

When people think of rape, they think of a surprise encounter with a dangerous stranger. In most of these cases, however, the alleged victim knows the person accused of the crime. Allegations of sexual battery occur between 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. Sometimes, the crime occurs after one or both of the parties have been drinking alcohol or using drugs.

In Hillsborough County, FL, the defendant is not eligible to post bond on any charge of sexual battery and all offenses included under sections 794.011 and 794.023, Fla. Stat., until after the first appearance hearing. In these cases, it is important to have an attorney at the first appearance bond hearing so that you have the best chance of getting the bond set as low as possible.

Recent Case Results

On December 5, 2018, the jury returned a “not guilty” in a case pending before the Honorable Susan L. Barthle in Dade City, FL. The crime of Lewd and Lascivious Molestation is a first degree felony, punishable by life in prison (with a 25 year minimum mandatory prison sentence). Instead of facing those penalties, our client was exonerated and walked out of the courthouse with us after the jury returned the “not guilty” verdict. Leslie M. Sammis and Amanda F. Brunson were the lead attorneys in the case.

Disclaimer: The facts of your case may differ from the facts discussed here. Not all case results are listed here. The case results discussed here are not necessarily representative of the results obtained in all cases. Each case is different and must be evaluated and handled on its own merit.

Attorneys for Sexual Battery Crimes in Tampa, FL

The attorneys at Sammis Law Firm represent individuals charged with sexually motivated crimes including sexual battery throughout the greater Tampa Bay area including Hillsborough County, Polk County, Pasco County and Pinellas County, Florida.

Our offices are located in downtown Tampa in Hillsborough County and in New Port Richey in Pasco County, FL. We help our client at every stage of the case.

If you are arrested for any Sexual Battery charge, then you will not be released on bond until after your first appearance hearing. The judge presiding at the first appearance hearing will determine the appropriate amount of bail bond, if any, and any restrictions that might be placed on you while the case is pending. For this reason, it is important to have an attorney with you at this beginning stage of the case.

After your release, we can investigate the case and schedule depositions with each of the witnesses. The defenses in these cases often hinge on rulings made during pre-trial hearings to exclude or suppress evidence or to dismiss the charges.

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.

Call us at (813) 250-0500 today.


Florida’s Statute of Limitations for Sexual Battery

As a general rule, the prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. In other words, these crimes have no statute of limitations.

Several types of sexual battery crimes fall into this category of crimes that have no statute of limitations including:

  • Sexual battery of a child less than 12 years of age under § 794.011(2)(a) and (b);
  • Sexual battery with the use of force or the use or threat to use a deadly weapon under § 794.011(3); and
  • Sexual battery of a child less than 12 years of age by a person in familial of custodial authority under § 794.011(8)(c).

Other types of sexual battery offenses that have no statute of limitations including:

  • A first degree felony sexual battery committed on a victim under 18 years of age as provided in § 775.15(13)(b)
  • A violation of § 794.011(sexual battery) when the victim was under 16 years of age at the time the offense was committed as provided in § 775.15(13)(c).
  • A first or second-degree felony sexual battery under § 794.011 which is reported to a law enforcement agency within 72 hours after its commission as provided in §775.15(14); and
  • A first or second-degree felony sexual battery under § 794.011 committed upon a victim under the age of 18 which is reported to a law enforcement or other governmental agency within 72 hours after its commission as provided in § 775.15(13)(a).

An experienced criminal defense attorney can help you understand how the statute of limitations and your right to a speedy trial might impact the prosecution or defense of your case.


Information Center for Sexual Battery Crimes


Contacting an Attorney Immediately After an Accusation

After you become aware of the accusation, your next call should be to a criminal defense attorney experienced in fighting these types of cases.

When the investigation begins, a law enforcement officer might come knocking on your door to interrogate you about the accusation. The detective has one goal – obtaining statements that could implicate the accused in the crime.

You have the right to remain silent under the 5th amendment. You also have the right to be represented by an experienced criminal defense attorney under the 6th amendment. You can invoke your rights by saying, “I’m taking the 5th and the 6th amendment until my attorney is here.” Then don’t make any statements other than giving your name, address and date of birth, if requested.

Individuals who are completely innocent of any wrongdoing should be particularly careful not to make any statements. Those statements can be misconstrued and ultimately used against you. Your side of the story 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. One of the most important things you can do after the accusation is to remain silent until you have retained an experienced criminal defense attorney to represent you.

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 in Tampa, FL, 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 information that can be presented by favorable witnesses; and
  • 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 some 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:

  • 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 before 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.

We are particularly experienced with the policies and procedures used at the University of Tampa (UT) and University of South Florida (USF) when a student is accused of committing sexual battery on another student. Not only do you have to worry about the criminal investigation after a false allegation, but you also have to fight the actions the university might make during a disciplinary hearing.


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 convicted of committing a sexual battery after October 1, 1992, is not eligible for basic gain-time under Florida Statute Section 944.275.

The penalties are even harsher the crime was committed with a deadly weapon or force likely to cause injury. For instance, sexual battery with a deadly weapon or force likely to cause injury is charged as a felony punishable by life (often called a “life felony”) under Florida Statute Section 794.011(3).


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.

As a practical matter, any conduct constituting capital sexual battery will also constitute “lewd or lascivious molestation.” The elements of the offense are slightly different. Proof of capital sexual battery requires proof of either penetration or oral, anal, or vaginal union with the sexual organ of another. On the other hand, proof of lewd or lascivious molestation requires proof of intentional touching of the buttocks, genital area, genitals, breasts, or the clothing covering those areas.

Another difference between the two offenses is that lewd or lascivious molestation requires proof that the touching was done with a lewd or lascivious intent, while sexual battery may be committed without any proof of a specific sensual intent.


Sexual Battery – Punishable by Life Felony under Florida Law

Under some circumstances, sexual battery is punishable as a life felony under Florida law including:

  • 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 can 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 incarceration, 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 of 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 an 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

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:

  • a law enforcement officer;
  • a correctional officer;
  • a correctional probation officer;
  • an officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings; or
  • anyone who leads the victim to reasonably belief that the offender is in a position of control or authority as an employee or agent of the 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.

Under Florida Statute Section 984.011(10), if you falsely accuse any person listed in paragraph (4)(g) or any other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g), then you can be charged with 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.


Elements of Attempted Sexual Battery in Florida

In order to prove the crime of attempted sexual battery, the prosecutor with the State Attorney’s Office must prove the following elements beyond all reasonable doubt:

  • the defendant did some act towards committing the crime of sexual battery that went beyond just thinking about it;
  • the defendant would have committed the crime of sexual battery except that someone prevented him from committing the crime or he failed to commit the crime.

See § 777.04(1), Fla. Stat. and Fla. Std. Jury Instr. (Crim.) 5.1.


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 attempt 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.

Sexual Battery is a Qualifying Offenses for Sex Offender Registration – 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.

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 claims 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.


Finding an Attorney for Sexual Battery Charges in Tampa, FL

If you have been accused of sexual battery in the greater Tampa Bay area, then contact an experienced criminal defense attorney at the Sammis to discuss the allegations against you.

We represent clients throughout Hillsborough County, Clearwater or St. Petersburg in Pinellas County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, Florida,

Our lawyers represent clients charged with the following types of sexual battery:

  • Sexual Battery — Victim Less Than 12 Years of Age § 794.011(2), Fla. Stat.
  • Sexual Battery — Victim 12 Years of Age or Older — Great Force § 794.011(3), Fla. Stat.
  • Sexual Battery — Victim 12 Years of Age or Older — Specified Circumstances § 794.011(4), Fla. Stat.
  • Sexual Battery — Person 12 Years of Age or Older § 794.011(5), Fla. Stat.
  • Solicitation of Child under 18 Years of Age to Engage in an Act That Constitutes Sexual Battery by Person in Familial or Custodial Authority § 794.011(8)(a), Fla. Stat.
  • Sexual Battery upon Child 12 Years of Age or Older But under 18 Years of Age by Person in Familial or Custodial Authority § 794.011(8)(b), Fla. Stat.
  • Engaging in an Act Which Constituted Sexual Battery or Injured the Sexual Organ of Another in an Attempt to Commit Sexual Battery by a Person in Familial or Custodial Authority Upon a Person Less than 12 Years of Age § 794.011(8)(c), Fla. Stat.

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 sex crimes such as sexual assault or battery.

These charges come with serious criminal penalties including sex offender probation and a lifetime of reporting requirements.

Call us today at (813) 250-0500 to discuss the facts of your case during a confidential, free consultation.


This article was last updated on Wednesday, March 15, 2019.

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