Stephen G. Cobb - Florida Criminal Defense Lawyer

How Is A Sex Crime Defined In Florida?


There are several different types of sex crimes in Florida and each has a different set of elements which must be proven to the exclusion of every doubt that is reasonable. When you are asking about the types of sex crimes, they come in so many different categories that they can broadly be logged into felonies and misdemeanors, but here is a breakdown of some of the more common sex offenses.

First, Florida Statute Section 393.135(2), which covers a very specific type of sexual offense and that is, sexual misconduct or activity between caregivers and clients who are developmentally disabled. Florida Statute 393 is the Developmentally Disabled Act. Developmental disability is actually different from the Florida mental health act. There is a laundry list of specific requirements including mandatory reporting. Mandatory reporting requirements were designed to protect the disabled, but what many people don’t know is that this results in prosecutions based upon false allegations. The penalties range from up to a year in the case of misdemeanors and five (5) or fifteen (15) years in prison for felonies. Strict licensure issues arise in these cases the instant we talk about people who have specialized medical licenses – such as doctors, nurses and other medical professionals.

Next, Florida Statute Section 825.1025 is very similar, but it is specific to senior citizens and disabled people in health care facilities. This is obviously designed to protect senior citizens, and there are the problems with this Statute: mandatory reporting leading to false allegations. The title, “Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person” doesn’t really tell you very much about the offense, but it throws a lot of defense attorneys because it has a name that sounds like 800.04, Lewd or Lascivious molestation, battery or act. The key difference is that unlike 800.04, there is a consent defense. The problem arises when a person slipping in and out of competency engages in sexual activity with their partner, it is discovered, and the partner is wrongfully prosecuted on the theory that the senior or disabled person could not or did not give consent. Decades of marriage can be shattered with a false allegation. The penalty is either a five (5) or fifteen (15) year maximum sentence, depending on the facts of the case.

Then we move into Florida Statute Section 394.4593 and it is the first part of the Florida Mental Health Act. Sexual contact between special treatment providers and patients are also strictly prohibited, but there is an exception for married couples. If two married people are in the same healthcare facility, it is lawful for them to have sexual contact.

You know they are going to have some problems practically carrying that out in a highly supervised environment, but where trouble comes from is when you have people who are unmarried engaging in consensual sexual acts. The Statute is going to have a hard time constitutionally and with the right case a constitutional challenge involving people who are in a pre-existing relationship yet not married, could be a little problem for that particular section of Florida Statute 394. Penalties range from up to a year in jail for false reports under this Act, to five (5) years and fifteen (15) years in prison for felonies.

Stephen G. Cobb, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (850) 466-1522

There are several other statutes I am not going cover because the sex offense component is an aggravating factor that increases the severity of the charge. Section 787 is the kidnapping Statute, but it makes references to sex offenses in order to reclassify the felony to a higher degree as an aggravating factor. In the kidnapping context, it severely aggravates a major felony to a first degree felony punishable by life in prison, rather than the standard thirty (30) or forty (40) year’s first degree maximum sentence.

Next, Florida does not have a rape Statute. Instead Florida has Florida Statute Section 794.011, Sexual Battery. This Statute often gets confused with another Statute, Florida Statute 800.04, Lewd or lascivious act, battery or molestation. The key difference is that 800.04 does not have a consent defense. Therefore, overzealous prosecutors use this statute to attack young men – especially men of color – for having sex with their high school girlfriends.

Imagine this nightmare scenario. A sixteen (16) year old junior in high school has sex with a fifteen (15) year old sophomore. The young man is waived to adult court, charged with a life destroying sex offense, and prosecuted as an adult for having consensual sex. What people do not understand is that this happens routinely. This is a highly specialized area of litigation, but you will still see people paying general practice attorneys who are not Bar Certified as criminal law specialists and then later complaining for the rest of their lives about the outcome.

One of the most common sex offenses is a second degree misdemeanor, Indecent Exposure. Its scares the daylights out of a lot of people. They are out drinking, they do not use a bathroom and they try to discreetly urinate outside, which is considered exposing one’s self. They do not realize it is as public as it turns out to be, and they can be charged with indecent exposure or exposure of sexual organs in 800.03 Florida Statute. The difference between misdemeanors under 800.03 is radically different from something under 800.04.

Florida Statutes 810.14 and 810.145 are two statutes that are seeing a dramatic uptake and people are being arrested. These are the Voyeurism and Video Voyeurism Statutes. Neither one of these are a major “sex offense”, however when you are dealing with these kinds of situations involving voyeurism, especially electronic voyeurism with various different types of cameras being concealed in dressing rooms, people’s shoes, things of this nature, that is one of those misdemeanors that the complaining witness who feels victimized is going to call in the State Attorney’s office everyday demanding maximum jail time. Even though these two Statutory Sections 810.14 and 810.145 are not felonies or major sex offenses, they sure make people pretty angry. Proper management of these cases is essential since many defendants are emotionally unable to believe that a first offense for a misdemeanor can result in months of jail time. Almost every one of these misdemeanors comes with a jail time plea offer from the State.

Finally, Florida Statute Section 827.071 is titled sexual performance by a child, but it also contains part of Florida’s child pornography statute which is actually correctly covered under Florida’s general obscenity statute, Florida Statute Section 847. Rest assured none of the politicians in Tallahassee are specialists in criminal law, so this is not surprising. Staff legal counsel does the best they can to guide politicians, but statutory irregularities happen anyway.

Computer pornography cases are often found with Traveling to meet a minor under 847.0135. You almost never see a Traveling to meet a minor case without computer pornography, like you almost never see a child pornography case where the pictures were not provided by the government – most would be shocked to learn that the largest source of Internet child pornography is the government. One brief aside here – the numbers of returning veterans who get charged with this is shocking. Something happened to them overseas. They weren’t interested in child porn or sex with underage minors before deployment, yet they are back all of six weeks and get charged with these two offenses, traveling and computer porn. We’ve used SPECT brain imaging based mitigation several times in these cases.

Sexting is found in Florida Statute 847.0141, and is so involved, poorly written and involved that it will be the subject of a future article. Reading it and comparing it to Florida’s other sex offense laws will make your head want to explode. This statute really makes it look like every village sends their idiot to the Florida legislature.

Finally, everybody always wants to know about Florida sexual offender and sexual predator statutes. A good starting point is the Florida Statute 943.0435, that is where the term sexual offender is defined and that is a pretty good definition of that crime.

For more information on Sex Crimes In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (850) 466-1522

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