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.
There are numerous jury instructions for sexual battery where the victim is over 12 years of age with special circumstances. First, the state has to prove that the alleged victim was 12 years of age or older. Secondly, the state has to prove that the defendant committed an act upon or with the alleged victim whereby the sexual organ of either the defendant or the victim penetrated or had union with the anus, vagina, or mouth of the other party. The use of an object comes up again in that the instruction reads, “The defendant committed an act upon the alleged victim in which the anus or vagina of the victim was penetrated by an object.” However, there is a completely different element under specified circumstances for the state to prove, which is that the alleged victim was physically helpless to resist.
What does “physically helpless” mean? When thinking of someone who is physically helpless, many people will think of someone who is paralyzed or restricted to a wheelchair. However, the definition that the jury is going to get is that to be physically helpless means to be unconscious due to being knocked out, having a seizure, or sleeping. The catchall provision adds the statement, “For any other reason [the alleged victim] is physically unable to communicate unwillingness to act.” If a person is physically unable to communicate their unwillingness to give consent, then they are physically helpless to resist.
Another specified circumstance is that the defendant coerced the alleged victim to submit by threatening the use of force or violence likely to cause serious personal injury, and the alleged victim reasonably believed the defendant had the present ability to execute the threat. This is different from the other statutory sections where there was not an additional “and.” When reading the law, it is important to understand that when the word “or” separates two words, it means that one or the other applies. When the word “and” is used to separate two words, it means both apply, or “this” and “that” apply. So, under this particular statutory section as set forth in jury instructions, the state has the double burden of proving that there was a coercion of the alleged victim and that they submitted by the threat to use force or violence likely to cause serious personal injury, and that the alleged victim reasonably believed the defendant had the present ability to execute the threat. This is terrifying from the defendant’s perspective because it is a sex offense, and that pretty much sums it up.
From a legal perspective, this instruction basically restates one of the aspects of the crime of simple assault. If someone says, “I am going to pull this knife out of my knife case on my belt and stab you” as they are reaching for the knife, then that would indicate a present ability to carry out that threat. If someone wearing a knife case makes no movement towards grabbing the knife that is in the case on their belt and says, “At some unspecified time—it could be one year from now or 50 years from now—I am going to reach over and pull this knife out and stab you in the heart,” then that statement would not be considered a crime or an assault. That is why this particular section reflects the law of assault. There has to be a present ability or the appearance of a present ability.
It is important to note that we are talking about beliefs that the alleged victim reasonably believed, because if they unreasonably believed them, then that would throw that element of proof out of the window; it has to be a reasonable belief. The subsections (c), (d), (e), (f) and (g) cover things such as a threat of retaliation or retaliation against another person other than the alleged victim. There is also the element of belief that the alleged victim reasonably believed the defendant had the ability to execute the threat in the future. This is the complete opposite of the previous instruction and actually flies in the face of assault law. This is because under assault law, stating that a victim reasonably believed that after 50 years the defendant would pull out a knife and stab them would be logically laughable. Yet, here is something that many consider to be a logical fallacy as part of a jury instruction.
Rolling right through, (d) is that the defendant, without prior knowledge or consent of the alleged victim, administered or had knowledge of someone else administering to the victim a narcotic, anesthetic, or other intoxicating substance that mentally or physically incapacitated the victim. Adding a “roofie” to someone’s drink would obviously fit this, but what about a scenario involving someone who is drinking at a bar? This type of scenario would involve the issue of consensual sex being conflated into a sexual battery offense on a college campus, which is an epidemic of biblical proportions on our nation’s campuses. Due to the lowering of the burden of proof in title 9, young students (especially those who are male) are getting kicked out of universities. The language of this jury instruction demonstrates how problematic it is in the criminal court context, so imagine how problematic it is in a context of a student disciplinary hearing at a particular university wherein they are looking at whether or not someone went to a bar. Suddenly, there is an allegation of an intoxicating substance being administered by someone else called a bartender, and then there is a false allegation of sexual battery.
The issue of mental health arises in section (e), where it states that “The alleged victim was mentally defective and the defendant had reason to believe this or had actual knowledge of that fact.” What does it mean to be mentally defective? Is someone rendered mentally defective by the mere fact that they are taking medication for mental health issues? I do not know. That is a jury question. In some cases, a jury may decide that a person was mentally defective as a result of drinking while taking a Benzodiazepine such as Valium or Xanax, and that the alleged victim’s friend with benefits or boyfriend knew that they were drinking and unlawfully engaged in sex with them. This could be asserted even if the two people had been having consensual sex for months or years. This is another example of that slippery slope on which false convictions occur. Finally (f), states that the alleged victim was physically incapacitated. There is a specific instruction that defines “physically incapacitated” as a person who is bodily impaired or handicapped and substantially limited in his or her ability to resist or flee and act.
We are now coming up to one referenced earlier, which deals with the case of a person who is quadriplegic. Under this set of jury instructions, (3)(g) is pretty long, and states that the defendant at the time was in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting. There is a long list of people who could be considered the “defendant” in this instruction, including certified law enforcement officers, corrections officers, probation officers, and elected officials exempt from certification. The officer, official, or person must have acted in such a manner as to lead the victim to reasonably believe that the defendant was in a position of control or authority as an agent or employee of the government.
Government employees are especially at risk. Early in my career, there was someone who had a longstanding mental health disability and a rather significant prior record that I have often described as long as both legs and at least one and a half arms. This person falsely accused a colleague of mine of sexual battery while in the Escambia County Jail. There was a long report written with numerous inconsistencies in terms of what this particular inmate claimed occurred. This happened during my first three weeks as a criminal defense lawyer, and it frightened me so much that I developed an open-door policy and a conference-room policy as a result. My fear was that someone seeking attorney-client privilege and shutting the door could simply walk out of that door without giving me any kind of indication that anything was wrong, and then make a false allegation of sexual battery.
When I moved into private practice, every door that I had either stayed open, or I would have glass doors constructed. I used these types of doors for my offices, and my secretary was always sitting facing my office door. The one time my secretary was not facing my office, someone with an obvious mental health problem and a criminal record came into my office; we had a meeting, and then she wanted to show me her rosary, which was a little bit odd. However, this was not a traditional Catholic rosary; she was referring to a tattoo that was around and between her rather ample breasts, and she had no problem taking off her shirt and showing me. I immediately began screaming for my secretary, but she did not hear me because she was facing the other way busily typing pleadings. From then on, we always made sure that my secretary was facing my office door. These types of concerns can become very relevant when dealing with employees who work within special classes of the government. This is because in a lot of these settings, there are no video cameras and no glass doors. As a result, it becomes very hard to prove that something did not happen. Someone can make a false allegation as payback in a correctional or other setting, and then the defendant could find their life blowing up all around them because of enhanced penalties due to the wording of this section.
The last of the four elements is that the act was committed without the consent of the victim. Again, consent means intelligent, knowing, and voluntary consent, does not include coerced submission, and there is no requirement to offer physical resistance. As far as special circumstances go, there is a total of six lesser-included offenses, two of which are category one for sexual battery and battery. Under category two, we see for the second time 800.04(4) lewd or lascivious battery. We also see attempt, aggravated assault, and simple assault. Again, it’s important to remember that these instructions are liable to change at any point. For example, in the notes to the judges, it states specifically that Colman v. State out of Florida’s First District Court of Appeals changed the wording of the jury instructions in order to better reflect the manner in which the crime was committed. This is a decision from 1986, so sometimes fairly old decisions change jury instructions. When this happens, oftentimes the legislature does not do anything about it and it stays on the books permanently.
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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