Sexual Battery Under The Age Of 12 By A Person In Familial Authority

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, your host for this particular episode and all of Florida Criminal Law TV.

We are going to continue this sex offense series; we just finished Florida Statute Section 794.0112, which is the capital sexual battery on the child under 12, and we are going to add a wrinkle with Florida’s statute section 794.011(8)(a). And what is the difference? Well, the difference is that involves a sexual battery on a person under the age of 12 by someone who is in a position of familial authority, which is a fancy way of saying, “A parent, grandparent and uncle, boyfriend, girlfriend” someone who sits in a position of family authority over the child involved. And the best way to explain defenses in a case like this is again to go back to real life experience because, at this point of my career, I do not have a theory about how to defend sex offense cases, I have lots of experience.

And as we all know, a person with experience is never at the mercy of someone who has a mere theory. So, this particular case, we will call the defendant “John Doe”, arose because John Doe was dating a woman who had broken up with her former partner and had a child who was 11 years old – We will call her “Jane Doe”. And Jane Doe had serious debilitating mental health problems. And I am not talking about depression, anxiety or anything like that and I am not trying to stigmatize people who are mentally ill. In fact, a great deal of my practice is devoted from a place of compassion to people with mental illness. That is why we do SPECT (Single Photon Emission Computed Tomography), brain scanning defenses and why it was featured in the brain defense, chapter 14 by Kevin Davis.

The reality though is that some forms of mental illness are very difficult to deal with because the behaviors do not involve anxiety and depression, instead, they involve things such as deliberately lying, deliberately hurting other people, physically or emotionally, all kinds of things in jaundra of dysfunctional but antagonistic going after other people. Well, Jane Doe did not like mom’s new boyfriend. And as time went on, she became to dislike him more and more and more. Why? It is really hard to say because the child had so many different difficult problems inside of her head. And so, what happened was she made a false allegation against my client. My client was taken into custody because this was an emergency in the eyes of the legal system because he lived inside the same residence so they came storming in, they arrested him, he had the first appearance the following morning after the arrest, he never got a bond, I promptly filed the bond motion when I got the case and sure enough bond was denied. And we began investigating as fast as we could. And here is what we found.

We found an entire set of counselor records on this particular child indicating that on a regular basis, she would meet with this counselor because she had so many problems in school and she would tell the counselor things like “Yes, I paid attention in class”, “Yes, I did all of my homework”, “Yes, I am getting better, yes, I am taking my medication”, and then mom and her partner would come by who Jane Doe, the young girl did not like, and they would go “No, that is a lie, that is a lie, that is a lie and that is a lie”. And it was right there in the counselor’s notes.

Now, time goes on and the child gets placed into the Pensacola Center for Youth, that’s what it was called back then. And sure enough we ended up doing a deposition, taking sworn testimony before trial out of court but the witness is still under oath of the director of this particular clinic and we are hearing stories about how she is disobeying the staff, accusing the staff of things that are not true and provably untrue based on video-camera footage that she would lift her skirt not be wearing any panties and walk down the boy’s ring with a staff member chasing behind her trying to get her to put her skirt down and go back into an appropriate area where sure enough that staff member also got falsely accused. And so, the more we investigated the case the more it became apparent this was a false accusation that was a direct result of her particular type of mental illness and it was payback.

She would even have hallucinations she would talk to people about such as the time a cat appeared on her dresser, talked to her and then disappeared and faded away because it was a ghost. Now, of course, when she is talking to the child protection team, the CPT investigator, none of that came out. When she is recalling the story of how she was sexually abused by my client, none of that type of information came out. And, of course, she swore up and down she was telling the truth. But as time went on, the case began to fall apart simply because it was quite clear that no sexual battery, contrary to 794.0118(a) had actually occurred. So, after 6 months and we had enough information, we filed a very different motion to set bond. In fact, I asked for a signature bond and it was granted.

Imagine this. From no bond to simply sign your name, you get out of jail. Now, my client spent over 6 months in jail. There is nothing right about that whatsoever and in an era of Me-Too where everybody is just supposed to believe an accuser without questioning, this makes it very difficult to get a fair trial in these types of cases. But we were able to see justice was done in this particular case and our defense was, this is an exaggerated claim by someone who is probably mentally unstable, who has had visions and responded to command hallucinations. And by the way, she had also told three other people that it did not really happen. So, those are examples of defenses that intertwined with each other in this particular case.

And if you or someone you love is being investigated or has been accused or has been arrested for sexual battery of any kind and you would like more information about the specifics of your case or the case of someone you love, just give me a call, we will make some time available and I will be happy to go over available defenses, damage control strategies and answer all of your questions.

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.