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 for sexual battery without special circumstances where the victim is 12 years or older are based upon 794.011(5) of the Florida Statutes. These instructions have fewer elements than most of the other sexual offense instructions that have been covered, and state that the state must prove three elements beyond a reasonable doubt. First, it must be proven that the alleged victim is 12 years of age or older. Next, 2(a) states that the defendant committed an act upon or with the alleged victim in which the sexual organ of the defendant or the alleged victim penetrated or had union with the anus, vagina, or mouth of either the victim or the defendant. The second way that they can prove element two is by showing that the defendant committed an act upon the victim in which the anus or vagina of the alleged victim was penetrated by an object. Number one and two are pretty consistent throughout most of the sexual battery jury instructions that come from crimes alleged under chapter 794.
The third element is consent, meaning that the act was committed without the consent of the victim. This three-element charging is a lot simpler than the other ones that we have looked at. This instruction goes on to define consent as we have seen it defined earlier. It also states that the complaining witness’ mental incapacity or defect, if any, may be considered in determining whether there was intelligent, knowing, and voluntary consent. Now, this is not a required instruction; it states in the manual to “give if applicable” evidence of the victim’s mental incapacity or defect. Again, we are left with the need to define “incapacity” and “mentally defective.” These definitions have been decided for us by the politicians in Tallahassee, and a jury will be told that “mentally incapacitated” means that the 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 any other act committed upon that person without his or her consent.
It’s important to note that mentally incapacitated has a requirement that the administration of anything that affects a person’s mental capacity in terms of an intoxicating substance was done so in the absence of that person’s consent. This is critical, because going to a bar and getting drunk is something that someone is doing with consent, whereas having a “roofie” placed in an alcoholic drink would not be done with consent. So, that is pretty clear. From the defense’s perspective, there may be a problem with the phrase “Or due to any other act committed upon that person without his or her consent.” The problem with this phrase is the word “any.” The laundry list of things that could be an act committed upon the alleged victim without his or her consent is as broad as one’s imagination. So, a lot of things can purportedly leave someone mentally incapacitated. I was involved in an accident five years ago and I hit my head on the steering wheel. I did not do this consensually, so based upon the fact that I was hit on the head by the steering wheel without my consent, I was mentally incapacitated and could not give consent. It may sound ridiculous, but we are in a circumstance where the word “any” results in the limits of imagination, which can be very problematic for the defense.
Finally, in order for a person to be considered “mentally defective,” the person must suffer from a mental disease or defect. The key is that the person is rendered temporarily or permanently incapable of appraising the nature of his or her conduct. If a person was mixing mental health medication and alcohol, then the issue of being mentally incapacitated without consent would be an issue. Suddenly, there would be no guidance for the jury about the circumstance where someone is rendered mentally defective. This is because they suffer from a mental health problem that could render them temporarily or permanently incapable of appraising the nature of his or her conduct. How is a defendant supposed to know that someone with a cycling mood disorder is on or off their medication? How is a defendant supposed to know if their behavior is the product of a mental defect or not when they have a cycling mood disorder like bipolar disorder? If someone has a partner who has a cycling mood disorder, they could find themselves on the receiving end of a sexual battery charge, and this instruction could be thrown in their face on the simple three-element allegation.
It must be considered whether or not anyone has tried to use this as payback for a relationship having gone south. A person could say, “Yes, we had sex consensually in the past but decided to breakup and I told him or her ‘no.’ They want to say that I consented because they know me very well, but I was actively symptomatic due to all the stress they were causing me and I was not able to give consent because I have a mental defect.” These kinds of cases really happen. If there is a very strong defense in this type of case, then a person will be looking at a category-one or category-two lesser-included offense for plea bargaining, of which there are only three under the section of sexual battery with an alleged victim over 12 years of age without force.
Aggravated assault has not yet been discussed. I have handled cases where even though it was not a category-one or category-two lesser-included offense, we were able to settle a dangerous yet somewhat weakened sexual battery charge for aggravated assault where the complaining witness was over 12 years of age and no force was alleged. Imagine how frustrating it is for a criminal defendant who is sitting there saying, “Why should I plead guilty for something I did not do?” The answer is that if six people do not believe them, then they will be sentenced to a term of imprisonment for up to 15 years. Furthermore, they will have to live the rest of their life as a designated sexual offender upon their release. This is why people will sometimes take a plea bargain while insisting that they are not guilty.
The reality is that the decision of whether or not to take a plea bargain is strictly up to an individual defendant; it is not a decision a lawyer can make. In today’s political climate, these types of cases often involve rigged jury instructions to encourage false convictions, or at least that is the way it seems to me. As a result, many people will take plea bargains in cases where they would rather go to trial but simply cannot afford to because the ramifications of not being believed are too severe.
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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