Orlando Sexual Battery Lawyers

Skilled Criminal Defense Against Sexual Battery Charges

The offense frequently referred to as “rape” is defined in the Florida Statues as “sexual battery.” The statutory offenses are far more comprehensive and complex than the old Common Law offense of “rape.” The primary sexual battery statute is codified as FSS 794.011

794.011 Sexual battery.

(1) As used in this chapter:

(a) “Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.

(b) “Mentally defective” means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.

(c) “Mentally incapacitated” means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.

(d) “Offender” means a person accused of a sexual offense in violation of a provision of this chapter.

(e) “Physically helpless” means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.

(f) “Retaliation” includes, but is not limited to, threats of future physical punishment, kidnapping, false imprisonment or forcible confinement, or extortion.

(g) “Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.

(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

(i) “Victim” means a person who has been the object of a sexual offense.

(j) “Physically incapacitated” means bodily impaired or handicapped and substantially limited in the ability to resist or flee.

(2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141.

(b) A person less than 18 years of age who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(3) A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(4) A person who commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115:

(a) When the victim is physically helpless to resist.

(b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat.

(c) When the offender coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim reasonably believes that the offender has the ability to execute the threat in the future.

(d) When the offender, without the prior knowledge or consent of the victim, administers or has knowledge of someone else administering to the victim any narcotic, anesthetic, or other intoxicating substance which mentally or physically incapacitates the victim.

(e) When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact.

(f) When the victim is physically incapacitated.

(g) When the offender is a law enforcement officer, correctional officer, or correctional probation officer as defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who is certified under the provisions of s. 943.1395 or is an elected official exempt from such certification by virtue of s. 943.253, or any other person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting, and such officer, official, or person is acting in such a manner as to lead the victim to reasonably believe that the offender is in a position of control or authority as an agent or employee of government.

(5) A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(6) The offense described in subsection (5) is included in any sexual battery offense charged under subsection (3) or subsection (4).

(7) A person who is convicted of committing a sexual battery on or after October 1, 1992, is not eligible for basic gain-time under s. 944.275. This subsection may be cited as the “Junny Rios-Martinez, Jr. Act of 1992.”

(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

(a) Solicits that person to engage in any act which would constitute sexual battery under paragraph (1)(h) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) Engages in any act with that person while the person is less than 12 years of age which constitutes sexual battery under paragraph (1)(h), or in an attempt to commit sexual battery injures the sexual organs of such person commits a capital or life felony, punishable pursuant to subsection (2).

(9) For prosecution under paragraph (4)(g), acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent, and it is not a defense that the perpetrator was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.

(10) Any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Lewd Assault, Battery or Exhibition

Lewd acts can be either misdemeanors or felonies. FSS 800.04 defines and sets the offense levels for these offenses:

800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.

(1) DEFINITIONS. – As used in this section:

(a) “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.

(b) “Consent” means intelligent, knowing, and voluntary consent, and does not include submission by coercion.

(c) “Coercion” means the use of exploitation, bribes, threats of force, or intimidation to gain cooperation or compliance.

(d) “Victim” means a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer.

(2) PROHIBITED DEFENSES. – Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section.

(3) IGNORANCE OR BELIEF OF VICTIM’S AGE. – The perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense in a prosecution under this section.

(4) LEWD OR LASCIVIOUS BATTERY. – A person who:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or

(b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) LEWD OR LASCIVIOUS MOLESTATION.

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or

An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d) An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(6) LEWD OR LASCIVIOUS CONDUCT.

(a) A person who:

Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or

Solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.

(b) An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(7) LEWD OR LASCIVIOUS EXHIBITION.

(a) A person who:

Intentionally masturbates;

Intentionally exposes the genitals in a lewd or lascivious manner; or

(b) A person who:

Intentionally masturbates;

Intentionally exposes the genitals in a lewd or lascivious manner; or

Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, live over a computer on-line service, Internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or television monitor by a victim in this state who is less than 16 years of age, commits lewd or lascivious exhibition. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this paragraph shall not constitute a defense to a prosecution under this paragraph.

(c) An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d) An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(8) EXCEPTION. – A mother’s breastfeeding of her baby does not under any circumstance constitute a violation of this section.

Conviction for a Sex Crime Requires a Strong Defense

Perhaps no area of criminal offense carries a worse social stigma than sex-related crimes. These crimes are often filed falsely to promote other agendas (such as a child custody dispute) or as revenge. They must be aggressively and effectively defended. Call one of our two locations at 407 743 8430 or 407-250-9557, for a prompt and free consultation with an experienced Central Florida criminal defense attorney at The Defense Group. We are available 24 hours a day for your emergency needs, and appointments can be arranged for nights or weekends if necessary.

NEVER SPEAK TO THE POLICE OR ANY OTHER STATE OR FEDERAL AGENT BEFORE SPEAKING TO AN ATTORNEY – EVER!

FAQs About Sexual Battery in Florida

Sex crimes can have serious consequences in Florida, including incarceration and sex offender registration. Here we provide answers to some frequently asked questions about sexual battery.

What Is Sexual Battery in Simple Terms?

In Florida, sexual battery is nonconsensual sexual penetration or union with the intimate parts of another. It covers a broad range of conduct, from forced intercourse to acts involving minors or individuals unable to give legal consent. Sexual battery carries significantly harsher penalties than simple battery (which refers to unwanted physical contact), including mandatory prison sentences and registration as a sex offender.

How Is Consent Defined in Sexual Battery Cases?

This is one of the most contested issues in sexual battery cases. Under Florida law, consent must be voluntarily and freely given, without threats, force, or coercion. Certain individuals cannot legally give consent. These include minors under the age of 18 (with certain exceptions), individuals who are intoxicated or under the influence of drugs, and mentally incapacitated persons.

What Are the Exceptions to Age of Consent Laws in Florida?

Generally, minors under the age of 18 cannot legally give consent to sexual activity in Florida. Engaging with a minor under the age of 16 is considered statutory sexual battery. However, the following limited exceptions to age of consent laws apply:

Close-in-age exemption (Romeo and Juliet Law): This allows individuals 16 or 17 years of age to engage in consensual sexual activity with a partner who is no more than 23 years old. The close-in-age exemption is designed to prevent prosecution of individuals who engage in consensual sexual relationships when the partners are close in age and one or both are under the age of consent.
Marriage exception: If a minor is legally married to the person with whom he or she is engaging in sexual activity, the sexual act is not considered statutory rape in Florida. However, Florida has strict minimum age requirements for marriage. Court approval is generally required for minors under the age of 18 to marry.
Juveniles engaging in sexual activity with each other: Although Florida law technically prohibits sexual activity between minors under the age of 16, cases involving two underage individuals may not result in prosecution, depending on the circumstances and prosecutorial discretion.

What Are the Criminal Penalties for Sexual Battery?

Florida law is stringent towards sexual battery, and the legal system takes these charges seriously. Severity of penalties under state law can vary based on factors such the age of the victim, whether a weapon was used, and whether the defendant has prior convictions. These charges can have severe consequences, including lengthy prison terms and mandatory sex offender registration. Conviction of sexual battery on a child under the age of 12 can result in life in prison without parole.

What Should I Do If I Am Falsely Accused of Sexual Battery?

False accusations are not uncommon. They can stem from various motives, including custody disputes, revenge, or even misinterpretation of events. Do the following if you are falsely accused of sexual battery:

Do not speak to law enforcement without an attorney.
Gather evidence that may support your defense, such as text messages, emails, or witness statements.
Hire an experienced criminal defense attorney to start building your case immediately.

Can You Be Charged with Sexual Battery If There Is No Physical Evidence?

Yes. Florida law does not require physical evidence to convict a person of sexual battery. Many cases rely solely on the testimony of the accuser. For this reason, it is crucial to have a strong defense strategy that challenges motives, inconsistencies, and the credibility of the allegations.

Should I Cooperate with the Police If I Am Under Investigation?

No, you should not. If the police are questioning you regarding a sexual battery case, assume you are a suspect and anything you say can and will be used against you. Politely decline to answer questions and request an attorney immediately. Although law enforcement officers may appear friendly, their goal is to gather evidence that could lead to a conviction.

What If the Alleged Victim Recants His or Her Statement?

Even if the alleged victim of sexual battery later admits lying or no longer wants to press charges, the state can still prosecute the case. Florida prosecutors often pursue sexual battery cases when the accuser withdraws the allegations. It is critical to have a strong defense.

Is There a Statute of Limitations for Sexual Battery in Florida?

A statute of limitations is a time limit imposed by law. In criminal matters, it limits the time the prosecution has to commence prosecuting a case. Statutes of limitations for sexual battery in Florida can vary in different circumstances. It is advisable to consult with a legal professional regarding the statute of limitations in a specific situation.

The Florida Legislature recently passed “Donna’s Law,” which removes the statute of limitations for sexual battery cases involving victims who were under the age of 18 at the time the offense was committed. It applies to crimes committed on or after July 1, 2020.

There is no statute of limitations for sexual battery cases in which the offender employs actual force likely to cause serious personal injury or uses or threatens to use a deadly weapon.

For first-degree felony sexual battery, which does not involve the use of a deadly weapon or force likely to cause serious injury, but does involve aggravating circumstances (such as coercion or a physically helpless victim) a four-year statute of limitations generally applies. However, if the offense is reported to law enforcement within 72 hours, there is no statute of limitations.

For second-degree felony sexual battery (without aggravating circumstances and without the use of a deadly weapon or force likely to cause serious injury), the statute of limitations is three years. However, as with first-degree felony sexual battery, if it is reported within 72 hours, no statute of limitations applies.

What Are the Consequences of a Sexual Battery Conviction?

If you are convicted of sexual battery, the consequences can be severe and life-altering, and may include the following:

Lengthy prison terms: Sentences can range from several years to life, depending on the circumstances.
Mandatory sex offender registration: This can significantly limit employment, housing, and travel options.
Social and professional ramifications: These may include loss of professional licensing and community ostracization.
Lifetime electronic monitoring: This is required in certain cases involving minors.

Can a Sexual Battery Conviction Be Expunged or Sealed?

No. A sexual battery conviction cannot be sealed or expunged in Florida. If you are convicted, it will remain on your record for life. For this reason, it is essential to aggressively fight the charges from the beginning.

What Are the Legal Defenses Against Sexual Battery Charges?

The defenses your attorney employs will depend on the unique circumstances of your case. The following are possible defenses against sexual battery charges:

Consent: Arguing that sexual activity was consensual is a primary defense. It involves demonstrating that both parties participated willingly without coercion or force.
False allegations: This defense involves challenging the credibility of the accuser by presenting evidence that the allegations are fabricated or motivated by ulterior reasons.
Mistaken identity: Assertions that the defendant was not the person who committed the alleged act may be supported by alibi evidence or by questioning the reliability of witness identifications.
Insufficient evidence: This involves highlighting the inconsistencies or weaknesses in the prosecution’s case to establish reasonable doubt regarding the defendant’s guilt.
Alibi: Showing that the defendant was elsewhere when the alleged incident occurred can be a strong defense. It may involve presenting evidence such as surveillance footage, witness testimony, or other documentation confirming the defendant’s location at the relevant time.
Mental incapacity or insanity: Asserting that the defendant was not in a sound mental state during the incident, which rendered him or her incapable of understanding the nature of his or her actions or distinguishing right from wrong, may be a valid defense.
Statutory defense: In cases involving minors, if the defendant and the alleged victim are close in age, Romeo and Juliet laws may provide a defense or reduce penalties.
Physical impossibility: Providing evidence that physical conditions or limitations would have made it impossible for the defendant to commit the alleged act can be a strong defense.
Mistake of fact: This defense involves arguing that the defendant had a reasonable belief that the alleged victim consented to the sexual activity, based on the circumstances and the alleged victim’s actions.
Entrapment: If law enforcement induced the defendant to commit a crime he or she otherwise would not have committed, it is entrapment. This defense is applicable if the idea and initiation of the offense originated with government agents.
Violation of constitutional rights: Arguing that evidence was unlawfully obtained, as through improper searches or interrogations, could lead to exclusion of that evidence in court.

What Should I Do If I Have Been Arrested for Sexual Battery?

If you are arrested for sexual battery, stick to the following guidelines to increase your chances of a better outcome:

Remain silent. Do not discuss the case with law enforcement, family, or friends, and definitely not on social media.
Contact an experienced defense attorney immediately: The sooner you have legal representation, the better your chances will be of building a strong defense.
Avoid all contact with the accuser: Any attempt to reach out could be misinterpreted and used against you.
Document everything: Keep records of any messages, interactions, or evidence that could support your defense.

How Can a Defense Attorney Help?

A skilled criminal defense attorney will develop a comprehensive defense strategy, which may involve:

Challenging the credibility of the accuser
Investigating false allegations or ulterior motives
Presenting alibi evidence
Suppressing evidence that was unlawfully obtained
Negotiating plea agreements if necessary

Why Choose The Defense Group for Sexual Battery Defense in Orlando?

It is important to consult with a criminal defense attorney to determine the most appropriate defense strategy tailored to the specifics of your case. At The Defense Group in Orlando, we have extensive experience in a wide variety of criminal matters, including sexual offenses, and a history of success for our clients.

Our team of trial lawyers have more than a decade of combined years in practice. We prioritize protecting your freedom and getting the outcome you deserve. Contact us at 407-743-8430 for a free consultation if you are facing sexual battery charges.