Understanding the Sex Offense Laws and Potential Penalties Is Crucial If You Find Yourself Charged with a Sex Offense In Florida
AMANDA POWERS SELLERS AND JENNA C. FINKELSTEIN
A conviction for a sex offense typically results in far-reaching negative consequences for the accused. Not only may an individual convicted of a sex offense in Florida face the possibility of a term of incarceration but he or she may also be required to register as a sex offender for life. Understanding the sex offense laws and potential penalties is crucial if you find yourself charged with a sex offense in Florida.
SEXUAL BATTERY AND RAPE In the State of Florida, what most people refer to as the crime of rape is charged as "sexual battery". Florida Statute § 794.011 defines sexual battery 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.” Sexual battery is charged as a felony in the State of Florida. Like most states, Florida further subdivides felony offenses based on the severity of the crime. The most serious felony is a capital felony, followed by a life felony and then a first, second, and third degree felony. A variety of factors go into determining what level felony an alleged sexual battery will be charged as, including:
The age of the alleged victim Whether or not the alleged victim was injured during the commission of the sexual battery The age of the accused Whether or not the alleged victim was incapacitated at the time of the incident that gave rise to the charges The use of force or the threat of force The relationship between the alleged victim and the accused
Not surprisingly, the law provides for harsher penalties in situations where the victim is a minor, where the victim is physically or mentally disabled, or where the accused was in a position of authority over the victim. The potential penalties an accused faces if convicted of sexual battery in Florida depends on what level of felony the sexual battery was charged at; however, the general sentencing structure for felonies in Florida is as follows: Capital felony – death Life felony – life in prison 1st degree felony – up to 30 years 2nd degree felony – up to 15 years 3rd degree felony – up to five years
LEWD AND LASCIVIOUS ACTS Lewd and lascivious acts in the State of Florida are sexual acts that involve minors. Florida Statute §800.04 defines the lewd and lascivious offenses for which an individual can be charged and convicted. The following offenses are included: Lewd and lascivious battery – a person commits the offense of lewd and lascivious battery if he or she “Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.” Lewd and lascivious molestation – a person commits this offense by “intentionally touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” Lewd or lascivious conduct –defined as “Intentionally touching a person under 16 years of age in a lewd or lascivious manner; or
soliciting a person under 16 years of age to commit a lewd or lascivious act. Lewd or lascivious exhibition â€“ a person who â€œintentionally masturbates; intentionally exposes the genitals in a lewd or lascivious manner; or intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activityin the presence of a victim who is less than 16 years of age commits this offense. With respect to lewd and lascivious act offenses in the State of Florida it is important to understand that the victim's consent is not a defense. Furthermore, ignorance of the victim's age, the victim's misrepresentation of his or her age, or even the defendantâ€™s true belief that the victim was old enough to consent cannot be raised as the defenses if charged with a lewd and lascivious act crime. Lewd or lascivious act offenses in Florida are all felony offenses, ranging in level of severity from a third degree felony to a life felony depending on the specific facts and circumstances of the crime.
UNLAWFUL SEX WITH MINORS In Florida, what most people refer to as "statutory rape" is charged as an "unlawful sexual activity with certain minors" offense. The statute covering this offense is specifically aimed at situations where someone over the age of 24 engages in consensual sex with someone who is 16 or 17 years old.Because the age of consent in the state of Florida is 18 it is illegal to view engage in sexual relations with someone under the age of 18 even if that person was a willing participant. Unlawful sexual activity with certain minors is charged as a second degree felony.
ROMEO AND JULIET LAW Each individual state in the United States determines what the age of consent is within that state. Most states put the age of consent between 16 and 18 years old. Engaging in sexual activity with someone under the age of consent is a crime in any state. Many states, however, recognize that teenagers do engage in sexual activity willingly and that under certain circumstances it does not seem a just result to label someone a sex offender when the age of the victim is the only factor that made the act a crime.For example, if a 16-year-old willingly engages in sexual intercourse with a 19-year-old this is a crime in many states; however, labeling the 19-year-old as a sex offender and requiring that he or she register as such may not be a fair outcome.Taking this into consideration, many states have enacted what have come to be referred to as "Romeo and Juliet" laws. A Romeo and Juliet law may provide a defense to a statutory rape offense and/or may exempt an offender from registering as a sex offender. In 2007, Florida enacted a “Romeo and Juliet” law – Florida Statute § 943.04354. Florida's Romeo and Juliet law does not provide a defense. Instead, the law provides a potential exemption from being required to register as a sex offender for an individual who has been convicted of certain offenses. To qualify under the Romeo and Juliet law the victim must have been between 14 and 17 years old and the perpetrator must not have been more than four years older than the victim. In addition the victim must have been a willing participant in the sexual activity. Furthermore the instant offense must be the only reason why the individual is required to register as a sex offender. The statute does not automatically remove the registration requirement. Instead, it allows a defendant to petition the
court for an order removing the requirement that the defendant register as a sex offender. Ultimately, the court reviewing the petition has discretion to grant or deny the request.
SEX OFFENDER REGISTRY In recent years, states all across the United have enacted legislation creating a sex offender registry. In Florida, individuals convicted of a long list of sex offenses are required to register with the Florida Department of Law Enforcement as a sex offender. In addition, anyone who has been adjudicated a sexual predator must also register. Registration requires the individual to provide identifying information, including where he or she lives, to the FDLE. That information is then accessible on the FDLE website through a simple public search. Once required to register, an offender must remain registered for life absent a court order exempting participation. While all sex offenses in Florida are charged as felonies, meaning they all carry a potential term of incarceration if convicted, being labeled a sex offender often has a much farther reaching impact on an individualâ€™s life than the threat of incarceration. If you, or someone you know, has been charged with a sex offense in the State of Florida, seek assistance from an experienced Florida criminal defense attorney immediately.
Florida Statutes, 943.0435 Sex Offender Registry Florida Statutes, 800.04 Lewdness U.S. Legal, Romeo and Juliet Law
ABOUT THE AUTHORS Amanda Powers Sellers Florida criminal defense lawyer, Amanda Powers Sellers, has aggressively defended thousands of Florida criminal cases. With over nine years of criminal jury trial experience, she has the necessary background to represent cases ranging from Driving under the Influence (DUI) to First Degree Murder. Amanda is a seasoned litigator and an aggressive negotiator. With a wealth of experience she has proven that her gentle, but aggressive style of criminal defense litigation consistently achieves results for her clients. Jenna C. Finkelstein Florida criminal defense attorney, Jenna Finkelstein, has over sixty (60) criminal jury trials to her credit. Her experience defending individuals charged with crimes in the state of Florida ranges from domestic battery to DUI Manslaughter, Sexual Battery, First Degree Murder and all crimes in between. She is passionate about the law and promises personal attention to all of her clients and their individual needs. Jenna is a seasoned trial attorney who knows the legal system and its players. Jenna and her team at the Law Offices of Powers Sellers & Finkelstein, PLC, are committed to fighting for you.
Powers Sellers & Finkelstein, PLC 6344 Roosevelt Blvd. Suite B Clearwater, FL 33760 727-531-2926 http://psffirm.com