Sexual Battery

Sexual Battery, can be interpreted differently in different states. The general legal definition, the act constitutes sexual touching or contact without the consent of the victim, by the use of threat, force, or violence. Sexual touching means to touch intentionally, the private or intimate parts of another person for sexual arousal. The touch could be direct or through clothing. Hence, unlike rape there is no penetration in sexual assault.

The degree of force used in sexual assault will be different, and it can be just enough to make contact. The level of force will also depend on the person being touched and the circumstances. For instance, the force needed to touch an unwilling child will be minimal compared to an adult. Secondly, deliberately brushing against intimate parts of a person in a crowded place will still constitute sexual assault even though there is no apparent force involved.

Hence, the sexual touching need not be violent, nor the level of force used has to be extreme to constitute sexual assault. The main criteria are touching a person without his or her consent and in an offending way. Secondly, even when the victim is not in a position to give consent to the sexual touching, it is still sexual assault. For instance, sexually touching a person who is unconscious or under the influence of alcohol or some drug, or the person is having a disability that limits his or her capacity to communicate.

The touching performed by a medical or health professional for the purpose of clinical evaluation cannot be taken as sexual contact. Similarly, a parent touching a child while performing required domestic functions cannot be considered sexual contact.

A range of sex crimes is covered under sexual battery, and lewd and lascivious conduct in Florida. The term “sexual assault” is often used to mean rape in mainstream communication in Florida. Secondly, rape also does not have a separate mention under Florida Statutes, but the crime is covered under sexual battery.

However, sexual assault as described above is covered under Indecent Assault under Florida Statute 3126.

The Statute defines indecent assault as the act of indecent contact with the victim or causing the victim to come into indecent contact with the perpetrator, or willfully causing the victim to come into contact with urine, feces, or seminal fluid for the purpose of sexual arousal.

The act is done:

• Without the consent of the victim
• The perpetrator forcibly compels the victim
• The perpetrator threatens to forcibly compel the victim, to prevent any resistance
• The victim is unconscious
• The victim is unaware of the occurrence of indecent contact
• The perpetrator takes control of the victim by administering intoxicants or drugs without the knowledge of the victim
• The victim is less than 13 years old
• The victim is less than 16 years old, and the perpetrator is four years older than the victim, and the two are not married.

According to Florida statutes, the offense of indecent assault can be graded in its severity by taking into account various circumstances of the crime. Depending on the severity, the charges can be second-degree misdemeanor, first degree misdemeanor, or third degree felony. The perpetrator can be charged with third degree felony for indecent assault when:

• The perpetrator is a repeated offender or the perpetrator’s past conduct shows a record of indecent assaults
• The perpetrator has touched the victim’s sexual parts with his or her intimate parts or the other way round.

794.011 Sexual battery

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 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)  A person 18 years of age or older who commits sexual battery upon a person 12 years of age or older but younger than 18 years of age without that person’s consent, under any of the circumstances listed in paragraph (e), commits a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(b)  A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older without that person’s consent, under any of the circumstances listed in paragraph (e), commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(c)  A person younger than 18 years of age who commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the circumstances listed in paragraph (e), commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(d)  A person commits a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115 if the person commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the circumstances listed in paragraph (e), and such person was previously convicted of a violation of:

1.  Section 787.01 (2) or s. 787.02 (2) when the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed against the minor a sexual battery under this chapter or a lewd act under s. 800.04 or s. 847.0135 (5);

2.  Section 787.01 (3)(a)2. or 3.;

3.  Section 787.02 (3)(a)2. or 3.;

4.  Section 800.04 ;

5.  Section 825.1025 ;

6.  Section 847.0135 (5); or

7.  This chapter, excluding subsection (10) of this section.

(e)  The following circumstances apply to paragraphs (a)-(d):

1.  The victim is physically helpless to resist.

2.  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.

3.  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.

4.  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 that mentally or physically incapacitates the victim.

5.  The victim is mentally defective, and the offender has reason to believe this or has actual knowledge of this fact.

6.  The victim is physically incapacitated.

7.  The offender is a law enforcement officer, correctional officer, or correctional probation officer as defined in s. 943.10 (1), (2), (3), (6), (7), (8), or (9), who is certified under 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)  A person 18 years of age or older who commits sexual battery upon a person 12 years of age or older but younger than 18 years of age, without that person’s consent, and in the process does not use physical force and violence likely to cause serious personal injury commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(b)  A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older, without that person’s consent, and in the process 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.

(c)  A person younger than 18 years of age who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process 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.

(d)  A person commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115 if the person commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process does not use physical force and violence likely to cause serious personal injury and the person was previously convicted of a violation of:

1.  Section 787.01 (2) or s. 787.02 (2) when the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed against the minor a sexual battery under this chapter or a lewd act under s. 800.04 or s. 847.0135 (5);

2.  Section 787.01 (3)(a)2. or 3.;

3.  Section 787.02 (3)(a)2. or 3.;

4.  Section 800.04 ;

5.  Section 825.1025 ;

6.  Section 847.0135 (5); or

7.  This chapter, excluding subsection (10) of this section.

(6)(a)  The offenses described in paragraphs (5)(a)-(c) are included in any sexual battery offense charged under subsection (3).

(b)  The offense described in paragraph (5)(a) is included in an offense charged under paragraph (4)(a).

(c)  The offense described in paragraph (5)(b) is included in an offense charged under paragraph (4)(b).

(d)  The offense described in paragraph (5)(c) is included in an offense charged under paragraph (4)(c).

(e)  The offense described in paragraph (5)(d) is included in an offense charged under paragraph (4)(d).

(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 younger than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable by a term of years not exceeding life or 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)(a), paragraph (4)(b), paragraph (4)(c), or paragraph (4)(d) which involves an offense committed under any of the circumstances listed in subparagraph (4)(e)7., 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)  A person who falsely accuses a person listed in subparagraph (4)(e)7. or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(a), paragraph (4)(b), paragraph (4)(c), or paragraph (4)(d) commits a felony of the third degree, puniszhable as provided in s. 775.082, s. 775.083, or s. 775.084.