When people hear Sex Crimes, they think of a wide range of crimes. They think Prostitution. Maybe groping an adult woman. However, neither count as Sexual Crimes. Most Sex Crimes fall into five categories: Sexual Battery, Lewd Acts, technology related offenses, Registration Offenses and Sex Trafficking. Also, Florida civilly commits some Sex Offenders under the Jimmy Ryce Act.
Punishments and offenses vary considering consent, the age of the offender, the age of the victim, the status of the offender, the status of the victim, the nature of the touching and the number of violations. Because this body of law is extremely nuanced, very confusing and fact intensive, this page serves as a brief, general, oversimplified overview of some of these crimes. It is not intended as legal advice and you should not base any future conduct upon this page alone.
Despite the variety of ways a person could criminally touch another, Florida requires that the adult defendant’s sexual organ penetrated or had union with the anus, vagina or mouth of the victim to charge Sexual Battery. The penetration may occur with an object. In some situations, the act doesn’t have to be completed. Soliciting the unlawful sexual contact suffices.
The law requires proof that the victim did not consent unless the victim is under 12 years old; however, statutory rape is still a crime. Adults 24 years old and older who have consensual sex with a 16 or 17 year old commit second degree felonies and face up to 15 years in prison. The law provides safe harbor for adults younger than 24 years old who have consensual sex with minors 16 or older.
Lots of Sexual Battery offenses are first degree felonies punishable by 30 years in prison or life in prison. Factors in Sexual Batteries include, but are not limited to, the age of the victim, using force, spiking someone’s drink with a drug, taking advantage of a mentally incapacitated person, taking advantage of a physically incapacitated person, taking advantage of a physically helpless person, the status of the offender and the familial or custodial relationship between the offender and victim.
The law punishes adults who perpetrate Sex Crimes, including Sexual Battery and Lewd Acts, against minors. Check out my blog post which explains the Adult on Minor multiplier as applied to Lewd and Lascivious Battery.
Even though one’s behavior may not constitute Sexual Battery because there wasn’t the requisite penetration, one could still commit Lewd Acts by touching another inappropriately, or even exposing him or herself to another unlawfully.
Lewd and Lascivious Battery punishes adults who engage in sexual activity with a person 12 years or order but less than 16 years old. 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, but excludes acts done for a bona fide medical purpose. These offenses are first and second degree felonies.
Lewd and Lascivious Molestation punishes the intentional touching, in a lewd and lascivious manner, of the breasts, genitals, genital area, buttocks, clothing covering the breasts, clothing covering the genitals, clothing covering the genital area, clothing covering the buttocks of a victim under 16 years old. It also punishes forcing or enticing a victim under 16 years old to touch those areas on the defendant. Punishment becomes more severe if the victim is under 12 years old or if the offender is an adult. These offenses are first and second degree felonies.
Adults commit Lewd and Lascivious Conduct if they touch a person 16 years old or younger in a lewd or lascivious manner. They face second degree felonies punishable by up to 15 years in prison. Minors who commit Lewd and Lascivious Conduct face third degree felonies punishable up to 5 years in prison.
Adults masturbating or intentionally exposing genitals in a lewd or lascivious manner in the presence of a victim less than 16 years old commits Lewd or Lascivious Exhibition. They face second degree felonies punishable by up to 15 years in prison. Minors who commit Lewd and Lascivious Exhibition face third degree felonies punishable by up to 5 years in prison.
Technology Related Offenses
For all the good technology does in modern life, it amplifies people’s ability to commit certain sexual offenses. Child Pornography is one of those offenses. Now that everyone with a smart phone also has a camera, we can take digital pictures with ease. Offenders don’t have to develop their own film to avoid arrest. Also, the internet makes sharing pictures and videos as easy as pressing a button.
State of Florida Child Pornography
It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession or viewing of each image, etc. constitutes a separate offense. Violating this law is a third degree felony punishable by up to 5 years in prison.
The following Child Pornography offenses are second degree felonies punishable by up to 15 years in prison per offense.
It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child. Possessing three or more images, etc. is prima facie proof of possession with intent.
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age.
A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance.
Federal Child Pornography
Federal law prohibits the production, distribution, reception and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. A person without any criminal history faces 5 years to 20 years in federal prison if convicted of transmitting child pornography across state lines or internationally. Prior sexual offenders may face 15 years to 40 years depending upon the nature of their prior offenses. It is illegal to persuade, induce, entice or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct.
A person without any criminal history faces 15 years to 30 years in federal prison if convicted of producing child pornography. Prior sexual offenders may face 25 years to 50 years or 35 years to life depending upon the number of their prior offenses.
Voyeurism is another offense which has become more prevalent thanks to technology. Voyeurism occurs when someone, with lewd, lascivious or indecent intent secretly observes another person when the other person is located in a dwelling, structure or conveyance and such location provides a reasonable expectation of privacy. The offense may also be committed by someone with lewd, lascivious or indecent intent who secretly observes another person’s intimate areas in which the person has a reasonable expectation of privacy. A first offense is a first degree misdemeanor punishable up to 1 year in jail. If you have been convicted two or more times of voyeurism, your third offense onward is a third degree felony punishable by up to 5 years in prison.
Because voyeurs no longer needed to spy in person, the law punished those who peep with recording or transmitting devices. It is unlawful to intentionally use or install an imaging device to secretly view, broadcast or record a victim for one’s own amusement, entertainment, sexual arousal, gratification, profit or for the purpose of degrading or abusing the victim. This assumes the victim, who didn’t know about or consent to this viewing or recording, was viewed or recorded while dressing, undressing or privately exposing his or her body in a place where he or she had a reasonable expectation of privacy. Punishment varies depending upon the age of the offender, age of the victim, employment status at certain schools and number of past convictions for this offense.
Conviction for certain sexual offenses designates people as Sexual Offenders and/or Sexual Predators. These offenders cannot travel freely in parks, schools or child care facility. They can’t even live within 1,000 feet of any school, child care facility, park or playground. State and local laws provide further restrictions which alter the way these sorts of offenders live everyday.
These individuals must comply with registration requirements which mandate they report to local law enforcement within 48 hours of establishing residence in the area. Failure to report changes to addresses in a timely fashion can be a crime. They must also provide a whole host of personally identifying information to local law enforcement and failing to provide accurate information is a crime. They must report within 48 hours of release from custody, within 48 hours of conviction of an offense requiring registration and more. They must also report in person to the Department of Highway Safety and Motor Vehicles and provide the requisite information to the DHSMV.
Jimmy Ryce Act
The Jimmy Ryce Act allows the State of Florida to incarcerate Sex Offenders after they finish serving their criminal sentence through a civil process related to the criminal justice system. The State Attorney’s Office refers offenders to the Department of Children and Families. A team of licensed mental health professionals assesses the offender prior to release to determine whether the offender is a sexually violent predator. The mental health professionals must notify the prosecutor whether the offender is a sexually violent predator at least 24 hours before the offender’s scheduled release from custody.
If the prosecutor files a petition for civil commitment, it must sufficiently allege the offender is a sexually violent predator. If a judge reviews the petition and finds probable cause, then the offender stays behind bars pending trial. Within 30 days of the finding probable cause, the judge shall conduct a trial. Either party can demand a jury trial. It may be continued once for not more than 120 days on limited grounds.
The trial rules provide less protection than in criminal cases. Hearsay, if reliable, is admissible and the psychotherapist patient privilege does not apply. The standard to convict is clear and convincing, not beyond a reasonable doubt. Juries must return unanimous verdicts. If the jury is hung and majority would find the offender a sexually violent predator, then the case can be retried. If not, the person is free. If convicted, a person is sentenced to the custody of the Department of Children and Families for treatment until the person has changed to the point where it’s safe for the offender’s release. Hearings on the offender’s mental health must occur at least once a year.
The Federal Government takes great steps to attack Sex Trafficking which affects interstate or foreign commerce, lots of which is punishable under the Mann Act. Transporting a person between states or internationally for prostitution or unlawful sex acts is punishable by up to 10 years in prison. Transporting a minor instead of an adult changes the penalty from 10 years in prison up to life.
Using an interactive computer service with the intent to facilitate interstate or international prostitution is punishable by up to 10 years in prison. This offense is punishable by up to 25 years in prison if the offender promotes or facilitates the prostitution of five or more people, or acts in reckless disregard of the fact that such conduct contributed to sex trafficking.
Inducing someone to travel between states or internationally to engage in prostitution or an unlawful sex act is punishable by up to 20 years in prison. Inducing a minor is punishable by at least 10 years in prison to life. The law penalizes traveling with intent to engage in illicit sexual conduct as well engaging in illicit sexual conduct in foreign places. This means that the United States criminalizes crimes where the pivotal behavior occurs outside of the United States.
Talk to an Experienced Florida Criminal Defense Attorney!
Often, Sex Crimes prosecutions begin following delayed reports. This means that the victim didn’t immediately report the unlawful conduct to law enforcement as soon as it concluded. To build a case against offenders, law enforcement sometimes encourages the victim to contact suspected offenders so they can secretly record the conversation. This is called a controlled call. If you receive a call from someone accusing you of sexual misconduct, this could be why.
The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before you’re on the receiving end of a controlled call, call Mr. Brown to learn how he can help you best defend yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.