Investigations After an Arrest for Sexual Battery in The Tampa Bay Area
It's important to remember that typically (though not always) within 21 days of the arrest for any crime including sexual battery in the Tampa Bay area; the prosecutors at the State Attorney's Office will make an important decision on whether to formally file charges against a potential Defendant.
An effective strategically minded criminal defense attorney hired during those 21 days should do the following:
- Present important evidence to the State Attorney's Office that establishes innocence.
- Provide information on new witnesses and establish possible problems with previous witnesses.
- Prepare evidentiary motions when law enforcement has failed to meet their constitutional duties.
- Protect the client from the prospect of prison, loss of community reputation and media hysteria.
The filing decision can be one of the most important events that will occur in the case. When contradictory evidence is immediately brought to the attention of prosecutors, showing them that they may lose at trial if they proceed, then and only then is it possible that charges may be dropped. Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County and Pinellas County.
The number of sexual battery allegations has risen dramatically on college campuses throughout Florida including the University of Tampa and the University of South Florida. Recent studies based on a survey of 6,129 college students enrolled at 32 educational institutions in the United States have shown shocking statisics including (see the University of Florida Police Department web page with more information including these important statistics at University of Florida Police Department ):
- One in eight college women report having been raped while 54% of women surveyed reported being the victim of some form sexual abuse;
- 84% of those women knew their assailant prior to the attack; and
- 57% of those rapes happened on a date.
Contact an experienced criminal defense attorney immediately after learning of an accusation of sexual battery by a college student from Tampa in HIllsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County or St. Petersburg or Clearwater in Pinellas County, Florida.
Statutes & Constitution :View Statutes : Online Sunshine for Florida Statutes)
- Sexual Battery - Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
- Victim of Sexual Battery - Florida law defines the term "victim" to mean any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
- Sexual Battery Offender - Florida law defines the term "offender" to mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
- Consent - Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any "coerced submission" that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Florida's Penalties for Sexual Battery (Statutes & Constitution :View Statutes : Online Sunshine )
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties. Under the Junny Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.
794.05 Unlawful sexual activity with certain minors.— (see Statutes & Constitution :View Statutes : Online Sunshine)
Sexual Battery - Capital Felony under Florida Law
(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.
(3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.
(4) If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.
Sexual Battery - Capital Felony under Florida Law
If the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished as a capital felony under Florida law.
- If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
- If the act of sexual battery is committed against a person who is 12 years of age or older without the person's consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.
Sexual Battery - First Degree Felony (Statutes & Constitution :View Statutes : Online Sunshine)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent under the following circumstances:
Physically Helpless - When the victim is physically helpless to resist. Florida law defines the term "physically helpless" to mean being asleep , unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.
Serious Personal Injury - When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.
Retaliation - When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term "retaliation" is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.
Mentally Incapacitated - When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term "mentally incapacitated" to mean being temporarily incapable of controlling or appraising the victim's own conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim's consent or due to any other act committed upon the victim without consent.
Mentally Defective - When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines "mentally defective" as any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.
Physically Incapacitated - When the victim is physically incapacitated. Florida law defines the term "physically incapacitated" as meaning any bodily impairment or handicap that substantially limited the alleged victim's ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent when the offender is in a position of authority or control. Additionally, the victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender. Occupations that are included within term position of control or authority include:
- law enforcement officer;
- correctional officer;
- correctional probation officer;
- officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
- or anyone who leads the victim to reasonably believe that the offender is in a position of control or authority as an employee or agent of government.
Anyone who has been the victim of an act of sexual violence by a law enforcement officer, probation officer, correctional officer, or prison guard should discuss the case with an experienced civil rights attorney in the greater Tampa Bay area. The law enforcement agency that will investigate the claim may not gather all of the evidence against the person accused. Additionally, although victims are rarely prosecuted for bringing false claims, the victim of a sexual assault or battery by a law enforcement officer can be charged with providing false allegations in a specially created statute to protect law enforcement officers.
Florida Statute Section 984.011(10) provides any 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 by five years in Florida State Prison.
Surprisingly, such a criminal provision does not apply when the person falsely accused is not a law enforcement officer or other person in authority or control.
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 violence or physical force likely to cause serious personal injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.
If the person accused is in a custodial or familial position of authority over the victim, then the victim's consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.
In other words, it is not a defense that the person accused 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.
Victim is 18 years old or older - If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.
Victim is between 12 and 17 - If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.
Victim is under 12 years old - If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims' consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the crime is punishable as a capital or life felony.
Note for Statutory Rape Crimes -- Ignorance or belief as to victim’s age no defense.—When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.
Related Links
Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County, and Pinellas County.
Ignorance of the Victim's age is no defense to Statutory Rape under the Florida Statutes, see: Statutes & Constitution :View Statutes : Online Sunshine
The Rules of Evidence to be used in Sexual Battery cases may be found at the following link: Statutes & Constitution :View Statutes : Online Sunshine
Florida's list of Qualifying Offenses for Sex Offender Registration Includes Sexual Battery - This information is found at the Florida Department of Law Enforcement. FDLE can be thought of as Florida's FBI with crime labs, evidence resources, and it's own law enforcement apparatus with a directive of solving crimes which transcend the jurisdiction or capabilities of local agencies such as the Hillsborough County Sheriff's Office (HCSO, Tampa) or the Pinellas County Sheriff's Office (PCSO, Clearwater, St. Petersburg). The FDLE information on sexual offenders & sexual predators, is presented under the Florida Sexual Predators Act under Florida Statute Section 775.21, and concerns the Registration of sexual offenders for sexual battery or aggravated sexual battery under the law of Florida.
Sexual Battery Information from the University of Florida Police - This web page is provided by the University of Florida Police Department and its Community Services Division and shows university students how they can lessen the chances of being a victim of sexual battery from perpetrators known or unknown.
University of Tampa's Guidelines on Sexual Assault - Each university in the Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the University. The guidelines for sexual assault include the following: survivor assistance guides, educational programs and counseling programs, a rape victim's hotline, and the process for any campus disciplinary proceedings upon finalization of the investigation by the Tampa Police Department and the Hillsborough County Sheriff's Office or FDLE.
University of South Florida (USF) Guidelines on Sexual Assault - These guidelines are for USF and include the Victims' Advocacy Program which can assist University of South Florida students or employees who are victims of actual or threatened violence which may including the following crimes: assault, battery, sexual assault or sexual battery. The University of South Florida Police Department often investigate these allegations and report statistical information concerning rape allegations by students or employees of the University.
