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.
In the last section, we discussed the four elements of sexual battery where the alleged victim is 12 years of age or older involving great force. We will now go through the definitions that the judge will read to the jurors. This is something people should consider if they have a loved one who is being prosecuted for this offense. These instructions change depending upon case law. What does that mean? Once the legislature writes a law and the governor signs it into law, lawyers promptly start arguing about the terminology and definitions of particular words in that law. Ultimately, the courts sort out these arguments, which often change jury instructions.
The first definition a judge will read to the jury is consent, which means intelligent, knowing, and voluntary consent that does not include coercive submission. The issue has achieved a great deal of notoriety based on the different words in that sentence. The common example that comes to mind is two university-aged students having drunk sex; is it intelligent, knowing, and voluntary consent, or is it somehow coercive submission? Obviously, if someone is given a drug in an alcoholic drink that renders them unable to give consent, then that is a form of coercive submission. There is also a section that states, “Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.” In today’s world, it is very easy to get convicted for consensual sex based on the wording of the definition of consent, as well as the political climate we are in. The opinion that a man cannot get a fair trial in a domestic violence or sex offense case might make more sense once one reads through the instructions.
On any given day whether online, in print, or on television—all kinds of acts involving sexual assault, sexual battery, and sexual harassment can be seen as blended together as if no distinction exists between them. Although the law states that the state’s burden is beyond and to the exclusion of every reasonable doubt, experience in the courtroom has taught me that that burden of proof was lowered prior to the beginning of the Me Too movement. So, understanding the definition of consent is a critical part of defending these types of charges.
An optional instruction that can be given if applicable is that evidence of the victim’s mental capacity or defect, if any, may be considered in determining whether there was intelligent, knowing, and voluntary consent. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent or due to any other act committed upon the person without his or her consent. For a person to be considered “mentally defective” means that they suffer from a mental disease or defect that renders them temporarily or permanently incapable of appraising the nature of their conduct.
Based on these definitions, a problem immediately arises: someone who goes out drinking and engages in consensual sex with another person could later claim that they are the victim of a sexual battery due to the fact that they take mental health medication and were drinking at the time of the sexual act, and therefore did not consent to it. This is something that actually occurs. Oftentimes it is a female who will start doubting her memory of whether or not she gave consent, and many times it will be her friends who talk her into believing that she is the victim of a sexual battery that did not occur. This is a growing problem and the jury instructions do not make it any easier.
If it is alleged that there was the use of or a threat to use a deadly weapon, then the definition of a weapon will be given. A weapon is considered deadly if it is used or threatened to be used in a way likely to produce death or great bodily harm. If it is alleged that actual force likely to cause serious personal injury was used, then there is no threat involved in that allegation. While there may have been a threat, the issue here is the use of actual physical force likely to cause serious personal injury. The definition of serious personal injury is given by the court to the jury prior to the start of their deliberations and is read as follows: serious personal injury means great bodily harm or pain, permanent disability, or permanent disfigurement. However, any act done for bona fide medical purposes is not a sexual battery. Serious personal injury means great bodily harm, but there is some case law regarding what great bodily harm is and what it is not; this is where we run into trouble or pain.
Pain is a very subjective thing, yet one that can be held to be as serious as personal injury without a permanent disability, and without disfigurement. Now, does this mean that people do not suffer pain if they have been sexually battered? No, it does not mean that at all. However, my concern is that it is so subjective in nature that jurors may be prone to convict on an allegation of serious personal injury when in fact, the pain alleged was not nearly as serious as it was purported to be. This comes into play when people are given a false narrative by other people or they give themselves a false narrative in their own minds and conflate that which happened into that which did not happen.
For this particular offense, category-one lesser-included offenses are sexual battery and simple battery. Obviously, the range of penalties between the two is radically different; one is a major sex crime and the other a misdemeanor battery with a maximum of one year in jail. Those are the category-one instructions that will be included with virtually every case. Under category two, there is a pretty long laundry list of optional jury instructions that are similar to when there is a 794.0114 sexual battery as opposed to a 794.0115 sexual battery (the latter of which is a mandatory category one). There is also attempt, which is under 777.041 of the Florida Statutes. Lewd or lascivious battery under 800.04(4) is a completely different charge altogether and is not even in the sexual battery statute 794. It is a completely different area of the law regarding sex offenses, but it can be given as a jury instruction if a jury is choosing between guilty, not guilty, or guilty of another charge. Finally, to round out the laundry list under category two for capital sexual battery is aggravated battery under 784.045(1)(a), aggravated assault 784.021(1)(a), and simple assault under section 784.011 of the Florida Statutes.
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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