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.
Section 794.011(2) of the Florida Statutes provides that the state has to prove three basic elements in order to convict someone of capital sexual battery with a victim less than 12 years of age. First, they have to show that the complaining witness who the state will call a “victim” is less than 12 years of age. In many cases, this particular element is not really in dispute, therefore there is not a lot of defense effort when it is obvious that the person in question is significantly younger than 12. For example, if a preschool-aged child is involved, then there is not really going to be a debate over whether or not the alleged victim is under 12 years of age. However, when dealing with cases where there is recalled memory of an event that is prosecuted much later, age may be an issue simply because so much time will have already passed. For example, this may occur if someone turns 18 years old and immediately files a complaint for something they say occurred several years prior.
The fact that someone is over 12 years of age does not necessarily eliminate a sexual battery charge, but it does eliminate the mandatory minimum life sentence that accompanies capital sexual battery convictions. In those cases, a criminal defense lawyer would be wise to pay very careful attention to the timeline as it relates to the complaining witness’s age. We have every client complete a written fact pattern report regardless of whether or not they are in custody, and we give specific instructions to provide for enhanced security of their communication with the legal team. After all, there is an attorney-client privilege that has to be respected. The issue of whether the complaining witness is above or below the age of 12 will either be a critical component of a defense or not a component at all.
The second element that the state must prove is broken into four different subsections. First, the state must prove that the named defendant committed an act either upon or with the complaining witness in which the sexual organ of the defendant penetrated or had union with the anus, vagina, or mouth of the complaining witness. The term “union with” means to touch. This means that if an adult male penis is proven beyond and to the exclusion of every reasonable doubt to have touched the anus, vagina, or mouth of an alleged victim in a sexual battery prosecution of this nature, then the touching would be sufficient to satisfy the second element. The reverse is also true when a female is charged as the defendant and the allegation involves whether or not her private parts (often specifically referred to in the jury instructions as “sexual organ”) touched the anus, penis, or mouth of a male victim. The second subsection of the second element is that the defendant committed an act upon the other party in which the anus or vagina of the complaining witness was penetrated (as opposed to only touched) by an object. There is some case law on what constitutes penetration, and it includes the use of an object as opposed to the use of a sexual organ.
The third subsection that may apply under the second jury instruction is that the defendant injured the sexual organ of the alleged victim in an attempt to commit an act upon or with the alleged victim in which the sexual organ of the defendant or the victim would have penetrated or would have had union with the anus, vagina, or mouth of the victim or defendant. This is something completely different than when there is an attempt to commit penetration or an attempt to have union as discussed in the last element. The fourth subsection is that the defendant injured the sexual organ of the alleged victim in an attempt to commit an act upon the victim in which the anus or vagina of the victim would have been penetrated by an object. So, there is penetration or union with sexual organs, and penetration of specified body parts with objects, both of which are broken down into jury instructions.
The third element that the state has to prove is that the defendant was 18 years of age or older at the time of the sexual battery, or that the defendant was less than 18 years of age at the time of the sexual battery. This element can have tremendous ramifications, but in some cases it won’t even be an issue. For example, if dealing with a defendant in their 50s, 60s, 70s or 80s, then the issue of their age being above or below 18 would be largely irrelevant. However, this third element shows that age matters not only for the complaining witness, but also for the defendant. This means that the first and third element specifically relate to age.
The jury instructions specifically state that if something is done for bona fide medical purposes, then it is not a sexual battery. If this weren’t the case, then every OBGYN medical professional in the world would say, “I have a problem. I can be convicted of a sex offense in the normal course of practicing medicine.” Finally, there is the instruction which I alluded to earlier and that is that “union” simply means contact. If there are multiple perpetrators alleged, charged, and proven to be guilty, then there is an additional instruction on enhancement pursuant to 794.023 of the Florida Statutes, but that is beyond the scope of the discussion today.
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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