Sexual Battery And Lewd Or Lascivious Molestation Battery Or Acts Consent Defenses

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.

Welcome back to Florida Criminal Law TV. My name is Stephen G. Cobb, Attorney at Law. And this is our sex offense series and we are specifically talking about defenses to different kinds of sex offenses and the way I am presenting all of these is by using real-life cases with manufactured names because that is a proper way to do it.

Now, a question that often comes up is what is the difference between 794.011 sexual battery and 800.04 lewd or lascivious acts, molestation or battery? There are three different subsections of 800.04. And this relates to defenses and one I have not even touched on the sexual battery section and it is when you have probably already thought about, and that is, consent. Consent is a defense to sexual battery. However, it is not a defense to lewd or lascivious molestation acts or battery. The reasoning is because the legislature decided that when someone is under the age of 16 that they cannot consent. Now, we know that our legislature is filled with village-idiots from 67 counties and at least we get them out of town for 60 days every year, unfortunately we send them to Tallahassee and they pass stupid laws. If you really want to know how I feel about this, we cannot be on camera because I would probably use language that my secretary would describe as “Colorful”. So, there is no consent offense and the best example I have is a senior in a high school who’d turned 18 was having sex with his girlfriend. And her stepfather found out about it. And when stepfather found out about it, it was not so much that she was having consensual sex with a senior in her same high school, it was that she was a blue-eyed blonde girl and her boyfriend just happened to be an African-American.

If you want me to tell you that racism does not play into prosecutions against people of color or arrest of people of color or vehicle stops, you are going to be waiting a long time because I see it every day and this case was a classic example. So, the state charged my client with one count of lewd or lascivious molestation. They could have charged him with more because they had sex frequently and we took deposition testimony of the witnesses in the case because we just could not get this case resolved. And what we found when questioning the young woman, Jane Smith, she broke down crying. She exploded into tears, the depositions were conducted at the Niceville, children’s advocacy center, they were videoed because she had just turned 16 but we had already set up the video camera because it was supposed to be done right before her birthday, they are already paid for it. So, once that was done, she exploded into tears when being asked certain questions specifically “Do you want your former boyfriend prosecuted”, and she started crying. And I do not mean like sniffles, I do not mean tears, I mean tears shooting out of her eyes almost howling in pain, she was so upset that he was being prosecuted. And she said things like, “I asked my dad over and over and over again, can we just let this go? I am just as guilty as he is”, she said this under oath.

Now, did the prosecution prosecute her because under principle theory, if two people engage in a criminal act, the driver of the getaway car is just as guilty of first-degree death penalty murder as the person who goes inside and shoots the person behind the counter and kills them, that is principle law. But does the prosecution ever prosecute the women who are engaging in unlawful consensual activity because they are under 16 and cannot consent, which we all know is BS? No, they are never prosecuted. I mean never ever, ever, ever people who make false allegations like the one I told you about earlier in the financial interest offense, no, she was never prosecuted. She was not prosecuted for perjury under deposition, she was not prosecuted for perjury at trial. What is wrong with this picture besides everything? Well, that tells you a lot about criminal law right off the bat.

So, moving along, what happened in this particular case is the stepfather came in next and the daughter went out a different door with the counselor who sat into the deposition. And I mean she was a wreck, she was so upset. And she was not mad at my client at all. So, sure enough dad comes in and he is one of these good old boys, really strong acting, you know the type, the authoritarian lab mouse you deal with on a regular basis in the deep south. I mean I have dealt with them my whole life, raised and lived among them, still have friends who are like that, the kind of men that if they are walking down the mall and some guy looks at their girlfriend or wife, they turn right around and instead of getting mad at the guy, they look at their girlfriend or wife and go, “Are you having sex with him, he is looking at you”. I mean this kind of mindset. This was one of those guys. And if you are from this area, you know exactly what I am talking about.

Well, sure enough, his first question was “Where is my daughter?” He barked it out, we were not even on the record yet with the court reporter. I asked if the court reporter would give us a few minutes and she left. It was just myself, the witness and the prosecutor. And the prosecutor said, “She left with the counselor” real diplomatically and I looked him right in the eye and I said, “Sir, your daughter exploded into tears, is unbelievably and deeply upset and sure enough, it is your fault”. I thought this guy was going to leap across the table and try to punch me in the face, he was so angry. His face turned red, you could almost see the flames coming out of his ears. And that really got to him.

Now, we had some more conversations, we cancelled his deposition and the rest of the depositions because I wanted him to really think about the impact of the trial on his daughter and his family. Sure enough, a few weeks later, prosecutor and I are talking about the case and low and behold, not only did the complaining witness not want to prosecute, not only did mom not want to prosecute, her biological mother, not only did the biological father want to prosecute, now the stepdad was onboard and he no longer wanted the prosecution. But he wanted a felony conviction because he really wanted to harm this young man. Why did he want to harm this young man? I will tell you. He was black, that is why he wanted to harm him. I mean it was the most over and obvious example of racism by a family member of a complaining witness, an accuser that I think I have seen in a long time.

Well, sure enough, we were able to resolve the case with a different strategy and this was a substitution of charge. Now, you do not normally think of that as a defense and people will often say to me, “I want my DUI reduced to reckless driving”, to which I respond “That is not possible”. “Oh, yes, it is, I have a friend and he was charged with a DUI and his case was reduced to a reckless”, “No, it was not”, “Yes, it was”, “No, it was not”, which one of us is a board-certified expert in criminal law? And they have to go, “You”. It was substituted. There is a technical difference. If it is a reduction, that means it is a category 1 or category 2, lesser included offense as set forth in the jury instructions or by case law or both because once the case law establishes a lesser and sets forth some rules on that, then it shows up in the rules of criminal procedure as a category 1 or category 2 lesser included offense.

We wanted the substitution because we did not want sex offender designation, sex offender registration, the risk of Jimmy Ryce Civil Commitment and the long-term consequences that come from being designated as the sexual offender. So, he entered a plea to aggravated assault, still a felony, and adjudication was left up to the judge but pretty much knew when we agree to this plea-bargaining, which this plea bargain took quite a while to put together to be candid about it. But once it was, the judge withheld adjudication of guilt, the young man completed probation successfully. In fact, his probation was terminated early because he was an exemplary probationer. After that, we were able to get his record sealed and anticipate that once the 10-year required seal time passes that if the law stays the same and you never know what those village-idiots in Tallahassee that we send from all over the state, but assuming it does, his record will be expunged, he has gone on to get a 4-year degree, he is working on his Master’s degree, he is going to be quite a contributor to a society. But notice how racism not by the accuser but by a family member, does this kind of ring a bell because in our earlier episodes, we talked about a family member instigating a consensual sex case turning into a sexual battery investigation? So, other people’s influence is a very powerful impact but in this case, it was racism of a family member, specifically the stepfather, that resulted in criminal charges. And what was admittedly a terrible case but the dynamics and the facts of that case, again cases are factually specific, we were able to get a substituted charge that did not, in the long term, seriously harm this young man and now, he is not just a contributing member of a society but a high performing contributing member of society.

If you or someone you love, a relative, a friend, a family member, god forbid a child or a parent are accused of a sex offense of any kind and you have questions, feel free to give me a call.

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.