Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Florida is very different from most states in that it does not have a statute that uses the word “rape.” Instead, Florida Criminal Law uses the term “unlawful sexual conduct” by labelling it as sexual battery or lewd or lascivious molestation. There are several different types of sexual battery, and each one of them is serious. For example, in Section 794.05 of the Florida Statute, it states that it is unlawful for anyone 24 years of age or older to have sexual activity with someone who is 16 or 17 years of age. Essentially, this means that the legislature has made a simple political decision: if a young man aged 22 or 23 years of age has consensual sex with a 17-year old, then that sexual activity is lawful. However, upon the passing of a birthday to age 24, that very same sexual activity with a 16 or 17-year old becomes unlawful.

If we’re talking about sexual activity in the context of this specific subsection of Florida’s sexual battery statute, then it includes touching. For example, if the penis is touching the anus or the vagina without penetration, then that would constitute sexual battery by a person 24 years of age or older with someone who is 16 or 17 years of age. Medical examinations are really the only exception to this particular statute, and there are many different types of exams that would result in a physician touching someone’s anus, breast, buttocks or vagina /penis. A classic example of an active penetration that would be lawful would be when a physician performs a speculum examination of a woman’s vaginal canal.

When a 23 year-old has been having sex with his girlfriend who’s 16 years old, it seems pretty unfair that upon the passage of a birthday (making him 24 years of age), the sexual activity involved would merely be continuing and not that serious (at least in the minds of those engaged in sexual activity under that type of a fact pattern). In reality, it is a major sex offense that carries a 15-year maximum penalty and lifetime sex offender registration.

Another example of sexual battery that has recently received more press than usual is female genital mutilation. Fortunately, it’s still a very rare occurrence, but a doctor in another state was recently arrested for what would be a violation of Section 794.08 of the Florida Statute. This is a growing concern nationally because there are cultures that normalize female genital mutilation. This is a very important add-on to the prohibitions of different types of sexual battery in chapter 794.

Finally, there is a sexual battery, which is found under Section 794.011 of the Florida Statue. Under this particular statutory section, the penalties generally range from five years in prison all the way up to life in prison. The majority of the penalties are in the 15 years in prison to life range. Under Section 794.011 of the Florida Statute, solicitation is a type of sexual battery that is considered a third degree felony with the 5-year maximum. Generally speaking, the definition of sexual battery can be broken down into one simple phrase: non-consensual sexual contact. I am often asked about the defense of being underage, and the reality is that that is normally handled under another section of law, 800.04.

Several factors can aggravate sexual battery. For example, if there is consent that is coerced with threats of injury, retaliation, violence or force against the victim or another person in the present or future, then that consent is not deemed lawful. An example of a future threat against others in order to coerce consent would be to retaliate by hurting someone’s family member. Another form of aggravation would be cases in which a victim was incapacitated by mental defect, drugs or alcohol. Yet another aggravation of sexual battery is physical incapacity, in which someone may mentally have their faculties, but they are physically incapable of resisting in any way, shape, form or fashion.

Finally, there are a couple of other ones that are extremely serious and top out under the high-end of liability. The first of those two would be a sexual battery that is committed by someone in a position of authority, such as a probation officer, an official at a jail, a corrections officer, or a police officer. Secondly, if you’re dealing with individuals under the age of 12, then a sexual battery is transformed into a capital sexual battery and the minimum sentence is life in prison. That’s also the law for maximum prison sentences under Florida law for sexual battery.

All types of sexual battery charges are serious. If someone is being investigated for sexual battery but they have not been arrested, it is important that they immediately contact a specialist in Florida criminal law and follow their advice to the letter.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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