Capital Sexual Battery Defense 794.011

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.

Good evening and welcome to Florida Criminal Law. I am your host Stephen G. Cobb. Today, we are going to talk about a very important aspect of Florida's Criminal Law. And These are the types of defenses as they relate to sex offenses. Now, Florida has multiple different types of sex offenses and where we are going to start is with Capital Sexual Battery. This is a sexual battery under Florida’s statute section 794.011. And a key difference about the capital sexual battery is simply this. If someone enters a plea of no contest or is guilty to the charge, the minimum sentence is life in prison.

Now, if someone is found guilty at trial, the minimum sentence is life in prison. So, either way, this is one of those cases where it is almost certainly going to go to trial so we need to consider the types of defenses. Now, the way I am going to explain this entire series on sex offenses is to give you real-life examples from actual cases I have defended either by myself or as part of a team. And if you have been watching my videos, at this point, you know I firmly believe that superhero lawyers do not exist and that the modern way to defend any kind of case is with a litigation team because the system is the secret, not some individual lawyer’s ego.

So, with that in mind, I am going to take you back to an early capital sexual battery case and give you some factual background in order to go over the defenses. To begin with, this particular capital sexual battery case did not involve a parent figure such as a father or a mother. It involved a family friend who was residing in the household. Now, of course, I am going to use anonymized information with names because that is appropriate, and will call my client John Doe. John Doe was accused by not one but two children under the age of 12 of inappropriately touching them with his fingers and using them to penetrate their vaginas. The state promptly did an investigation, as they should in cases like this, the Department of Children & Family Services was involved although, at this particular time, it had a different name. And sure enough, the medical examination of the two children showed that each of them had what is known as notching around the hymen and the hymen was intact in either child. Both of their hymens had obviously been penetrated. So, here we had a situation where we had what is known as corroborating medical evidence. And in fact, a doctor took the stand at trial and testified that these children did not have injuries and marks to their genitals, which were consistent with being sexually battered. In fact, the types of injuries observed were specific to sexual offenses. So, we had that kind of evidence against us.

Now, at the same time, my client had not made a statement to the police. This is critical because quite often, when these cases arise, one of the first things that people do is try to tell their story. This is an absolute disaster and he was one of the few people I have represented who was charged with a major offense like this, who took a dose of shut-the-heck-up and asked for a lawyer when he was asked to give a statement. It took us about a year to get this case ready for trial and based on the severity of the case, no matter what I said to try and get this man a bond, it was denied. In these types of cases, it is not unusual for a judge to deny the bond. We proceeded to trial and we picked the jury. And this is where psychology actually plays a key role. I knew, for example, that all of the witnesses against my client would be female except for one, and that was the father. I knew that he would give testimony that actually might help us a little bit but the state still had to put him on as a witness for a variety of reasons.

Next, I also did not have my client testify. Generally speaking, in a sex offense case, you do not want your client to testify. And then, finally, since women tend to believe men generically rather than other women, this is why I intentionally made sure that we had all women on the jury. Now, during the case itself, the reason we won was a very simple defense. In criminal defense law, this is known as SODDIT. What the heck is SODDIT? That means Some Other Dude Did It. And that is a very common defense, whether it is burglary or whether it is capital sexual battery, which this case was. In this particular case, one factual wrinkle made a huge difference. Both parents were so negligent and so dysfunctional that by the time the case came to trial, both, not one, not the other but both parents had their rights involuntarily terminated by order of the court due to a wide variety and series of acts of neglects and mistreatment of their own children. Therefore, during the trial, the reason we won was simply that, 1) we had psychology in our favor by how we picked the jury, and 2) this was a case where a SODDIT defense worked because we knew that there were going to be series of witnesses testifying about what the children had said. We also knew that there was going to be medical evidence. At the same time, there were no admissions by my client to law enforcement or anyone else, and finally, it was pretty clear that the father could have actually been the perpetrator. As a result, he was found not guilty at trial.

In a wide variety of circumstances where it is clear through medical evidence that some form of sexual battery or sexual assault has occurred, it may be useful and it may be a good idea to go with a SODDIT defense. So, when you are looking to hire a lawyer, one of the first types of defenses you are often going to hear about, is this type of defense, even if it goes by a different name. If you have further questions about sex offenses generally, feel free to give me a call. I will be happy to answer your questions.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.