Florida Sexual Violence Benchbook - Florida Council Against ...

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as it is in sexual battery cases. Additionally, consent is not a factor in lewd or lascivious cases because consent is statutorily prohibited as a defense in these cases. The Legislature has prohibited several possible defenses to lewd or lascivious conduct by statute. Consent is not a defense to any of the lewd or lascivious offenses. 97 Whether or not the victim was chaste at the time of the offense is also prohibited as a defense. 98 Lastly, “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….” 99 Lewd or lascivious cases define “sexual activity” with the same terminology used to define sexual battery. “‘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.” 100 Lewd or lascivious battery occurs when a person engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or 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 and is a second degree felony. 101 Lewd or lascivious molestation occurs when a person 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. 102 The felony degrees of this offense vary depending upon the age of the victim and the age of the offender. 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 life felony 103 punishable as provided in section 775.082(3)(a)4. 104 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 second degree felony. 105 Lastly, 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 third degree felony. 106 97 Section 800.04(2), Florida Statutes (2010). 98 Id. 99 Section 800.04(3), Florida Statutes (2010). 100 Section 800.04(1)(a), Florida Statutes (2010). 101 Section 800.04(4), Florida Statutes (2010). 102 Section 800.04(5)(a), Florida Statutes (2010). 103 Section 800.04(5)(b), Florida Statutes (2010). 104 Section 775.082(3)(a)4, Florida Statutes (2010) provides that, a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), is punishable by a term of imprisonment for life; or a split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life. Also, a life felony committed on or after July 1, 2008, which is a person’s second or subsequent violation of s. 800.04(5)(b), is punishable by a term of imprisonment for life. 105 Section 800.04(5)(c), Florida Statutes (2010). 106 Section 800.04(5)(d), Florida Statutes (2010). Sexual Violence Statutes 23
Lewd or lascivious conduct occurs when a person 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. 107 An offender 18 years of age or older who commits lewd or lascivious conduct commits a second degree felony. 108 An offender less than 18 years of age who commits lewd or lascivious conduct commits a third degree felony. 109 Lewd or lascivious exhibition occurs when a person 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 in the presence of a victim who is less than 16 years of age. 110 An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a second degree felony. 111 An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a third degree felony. 112 While it should go without saying, a mother’s breastfeeding of her baby does not under any circumstance constitute a violation of this section. 113 In 2010, the Florida Legislature created the offense of lewd or lascivious exhibition in the presence of an employee. 114 A violation of this section is a third degree felony. This offense is intended to protect employees of state or private correctional facilities from being exposed to lewd or lascivious behavior from the detainees in those facilities. An offense under this section also differs from the other types of lewd or lascivious offenses in that the age of the victim is not a factor. 1. Double Jeopardy in Lewd or Lascivious Cases When cases have elements of both a sexual battery and lewd or lascivious conduct, prosecutors may draft the information to charge the defendant with each possible offense. It is appropriate for an information to charge a defendant with all offenses supported by the evidence, however, double jeopardy issues can arise if the charges are based on the same act or occurrence or are in the course of the same activity. In Hightower, the Florida Supreme Court stated in a footnote that, “If uncertain of the proof, the cautious prosecutor will probably charge sexual battery and lewd and lascivious conduct in separate counts, recognizing, however, that only one conviction can be obtained for the same conduct.” 115 Charging a defendant with both sexual 107 Section 800.04(6)(a), Florida Statutes (2010). 108 Section 800.04(6)(b), Florida Statutes (2010). 109 Section 800.04(6)(c), Florida Statutes (2010). 110 Section 800.04(7)(a), Florida Statutes (2010). 111 Section 800.04(7)(b), Florida Statutes (2010). 112 Section 800.04(7)(c), Florida Statutes (2010). 113 Section 800.04(8), Florida Statutes (2010). 114 Section 800.09, Florida Statutes (2010). 115 State v. Hightower, 509 So. 2d 1078 at 1079 (Fla. 1987), (superseded on other grounds). 24 Florida Sexual Violence Benchbook
Page 1 and 2: 2 0 1 1 Florida Sexual Violence Ben
Page 4 and 5: Table of Contents Page Introduction
Page 6 and 7: iii. Certain Privileges Abrogated i
Page 8 and 9: Introduction Florida’s Sexual Vio
Page 10 and 11: I. Introduction to Sexual Violence
Page 12 and 13: that there were 248,280 rapes/sexua
Page 14 and 15: • Kidnapping, False Imprisonment,
Page 16 and 17: Penetration - means some entry into
Page 18 and 19: cases where the victim did not know
Page 20 and 21: • Actual psychogenic amnesia whic
Page 22 and 23: II. Sexual Violence Statutes A. Sex
Page 24 and 25: Section 794 .011 (3), Florida Statu
Page 26 and 27: victim to offer physical resistance
Page 28 and 29: that leads to a charge under this s
Page 30 and 31: the facts of this case, the defenda
Page 34 and 35: attery and commission of a lewd act
Page 36 and 37: or within 4 years after the injured
Page 38 and 39: estiality, masturbation, or sadomas
Page 40 and 41: substantial emotional distress in s
Page 42 and 43: physical intimidation on their vict
Page 44 and 45: A. Pretrial 1. Bond III. Procedures
Page 46 and 47: 19. Home invasion robbery; 20. Act
Page 48 and 49: serious criminal offenses, posing a
Page 50 and 51: 3.133 and the person has been relea
Page 52 and 53: sexual battery that would be a firs
Page 54 and 55: the charged offense(s), charging mu
Page 56 and 57: lenity as set forth in subsection (
Page 58 and 59: If the court orders the deposition
Page 60 and 61: which reveals that minor’s identi
Page 62 and 63: to such an examination.” 251 “I
Page 64 and 65: 1) Closure is necessary to prevent
Page 66 and 67: To determine voluntariness the judg
Page 68 and 69: must inquire whether counsel for th
Page 70 and 71: C. Trial 1. Jury Selection Since se
Page 72 and 73: naire is used, it will be helpful t
Page 74 and 75: i. Spousal Privilege of Marital Com
Page 76 and 77: There is no privilege under section
Page 78 and 79: may not be discussed with, any pers
Page 80 and 81: and moral consciousness that should
Page 82 and 83:
other specialized knowledge will as
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Finally, any witness may have their
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ment, the time at which the stateme
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victim’s testimony in both famili
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DNA testing, like other types of sc
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ing, no evidence offered by the def
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. Other Defenses i. Alibi What is a
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The affirmative defense of duress i
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for attempt under rule 3.510(a) was
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D. Post Trial Issues 1. Post Trial
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“In reviewing the circuit court
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will appear in the court to which t
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At a sentencing hearing, “the cou
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) The defendant was an accomplice t
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statement under oath to the office
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The state has a compelling interest
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4. The Jessica Lunsford Act - Proba
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823.07, s. 847.0125, s. 847.0134, o
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pursuant to s. 943.0435, may not be
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IV. Sexual Violence Injunctions Sex
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4. Refrain from contacting the chil
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V. Matters Related to Sexual Assaul
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C. Violence Against Women Act The V
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VI. Appendix Standard Jury Instruct
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for Injunction for Protection Again
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IN THE CIRCUIT COURT OF THE JUDICIA
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What should I do next? After you co
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9 Check here if you are attaching a
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IN THE CIRCUIT COURT OF THE _______
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Where can I look for more informati
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SECTION III. CASE HISTORY AND REASO
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INSTRUCTIONS FOR FLORIDA SUPREME CO
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I certify that a copy of this docum
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TRANSCRIPT PREPARED BY A COURT REPO
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INSTRUCTIONS FOR FLORIDA SUPREME CO
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Special Notes . . . If you fear tha
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2. Respondent's last known place of
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___________________________________
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YOU ARE ADVISED THAT IN THIS COURT:
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____ a. Respondent shall not use or
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employment {list address of current
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COPIES TO: Sheriff of _____________
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police reports, or anything that mi
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The court hereby appoints the State
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Florida’s Sexual Violence Benchbo
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