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.
The jury instructions at trial in a sexual battery case where the alleged victim is over 12 years of age, yet great force has been used is governed by 794.011(3) of the Florida Statutes. The jury instructions for this type of charge are lengthier than those for a sexual battery with a victim less than 12 years of age. The beginning of the instructions that the judge will read to a six-person jury panel would be as follows: in order to prove the crime of sexual battery upon a person 12 years of age or older with the use of a deadly weapon or physical force, the state must prove four elements beyond a reasonable doubt. It is important to remember that “reasonable doubt” instruction in Florida specifically means “beyond and to the exclusion of every reasonable doubt.”
The first of these four elements involves age, as it does with capital sexual battery charges. The state must first prove that the alleged victim is 12 years of age or older. This is rarely in dispute, because no defense attorney wants to argue to a jury that their client is actually guilty of a capital sexual battery on a child who is under 12 years of age. For that reason, the first element is usually not in dispute. With that said, there are some fact patterns that would lead an attorney to dispute the first element, but generally by the time that there has been several months of discovery and jury selection, and jury instructions have been reviewed, the age of the alleged victim will not be in dispute.
There are two parts to the instructions for the second element, the first being that the defendant committed an act upon or with the alleged victim in which the sexual organ of the defendant or the sexual organ of the victim penetrated or had union with the anus, vagina, or mouth of either the victim or the defendant. This terminology can be thought of as consistent with all of the school sex cases that have occurred in the past several years wherein female teachers were accused of sexual battery, lewd or lascivious acts, molestation, or battery with their students. The second variant of the element states that “The defendant committed an act upon the alleged victim in which the anus or vagina of the alleged victim was penetrated by an object.”
In the jury instructions discussed so far, this is the second time the involvement of an object has been mentioned. The capital sexual battery description under number two of the jury instructions for victims 12 years of age or older with great force read very similarly to those found where no force is used at all under the capital sexual battery statute. The change occurs with numbers three and four, which are strikingly different from the instructions found in capital sexual battery cases. The third is that the defendant used or threatened to use a deadly weapon, or used actual physical force likely to cause serious personal injury. To elaborate, a statement such as “I have a gun” should be construed as a threat by the prosecution, even if the defendant had no weapon whatsoever. In addition, it’s important to note that the use of actual physical force likely to cause serious personal injury does not state “caused personal injury.” This is critical because there are so many different circumstances under which a jury will be determining whether or not the force alleged was likely to cause permanent injury.
It is important to consider how the backgrounds of jurors will affect the way in which they make their determinations. For example, one juror might secretly like to engage in rough sex (using restraints, spanking, grabbing by the throat), while another juror may have never participated in anything other than missionary sex and would never even consider having rough sex. The latter juror might hear the words “grabbed by the throat” and assume there is no way that it could have been consensual, while the former juror might feel completely differently. When considering the use of “actual physical force likely to cause serious personal injury,” it is critical for lawyers to understand the people on the venire panel from a psychological perspective. If there is a venire panel of 48, 72, or 150 people, it will be important to know how those people feel about rough sex. However, the topic will have to be brought up in such a way that people do not feel embarrassed into complete silence. Asking these questions is critical, but it has to be done in such a way that a juror who has less exposure to rough sex feels comfortable fully answering the questions.
When it comes to asking questions that move into this area, it’s important to be very careful and consistent with what is known as case law. Secondly, it’s important to be mindful of people’s privacy concerns, because many people will not necessarily want to discuss these topics in front of an entire venire panel. A recent trend has been to invite potential jurors to stand near the judge in the middle of the prosecution and defense teams, and to turn on a buzzing sound while they answer the questions. That way, a juror’s answers do not have to be heard by everyone else in the courtroom, and the answers to questions about sex play can be given in a more private setting.
Finally, there is something that was completely missing in the capital sexual battery section and that is consent. The fourth element the state has to prove ties into why we ask the questions relating to the use of physical force during sex. More specifically, it has to be asked whether or not the act was consensual. This has become the issue in most sex offense litigation because there are a large number of people who no longer believe in the old mantra of “no means no.” They take it one step further and assume that all sexual contact is sexually abusive unless there is what is known as affirmative consent. These are individuals who believe that before someone holds another person’s hand, kisses them, or escalates their movements to grabbing the neck, etc., they should ask permission. They believe that before there is any touching of the body at all, explicit permission should be granted. There are other people who respond to this by saying, “Are you out of your mind? People do not work that way. If you do not like it, say no.” Understanding the psychological make-up of particular jurors is critical. This is why it may be necessary to have a special team that does nothing but go over the social media posts of prospective jurors. In our next section, we will finish up on jury instructions involving sexual battery where the alleged victim is 12 years of age or older with great force, discuss definitions, and discuss the lesser-included offenses.
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