Only an experienced Florida criminal defense attorney can evaluate the unique facts and circumstances surrounding a sex crime case and provide you with individualized advice; however, anyone who has been accused of rape or another similar sex offense should have at least basic understanding of the Florida sex offense laws and commonly used defenses. Here are some common questions that our firm receives from clients hoping to seal or expunge a criminal record.
In the State of Florida, the term “rape” is not actually used in statutes relating to sex offenses. Instead, Florida uses terms such as “Sexual Battery” and “Lewd and Lascivious Conduct”. Florida statute 794.011 defines “Sexual Battery” as follows:
“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.”
When a sexual battery is committed on an individual without that person’s consent it is a crime. Sexual battery is a felony in Florida and may be charged as anywhere from a third-degree felony to a capital felony. The severity level of the offense depends on several factors, including:
- Age of the perpetrator
- Age of the victim
- Whether force was used
- Whether the victim was injured
- The relationship between the perpetrator and the victim
In short, “Lewd or Lascivious” offenses are those in which the perpetrator engaged in “sexual activity” with the victim but in which that activity fell short of meeting the definition of “sexual battery”. Lewd or lascivious offenses are also charged as felonies in the State of Florida with the same factors being used to determine the severity level of the offense.
Consent is one of the most commonly used defenses to sexual offenses. Consent, if proven, can certainly be a powerful defense to allegations of sexual battery or lewd or lascivious conduct; however, it is imperative to understand that consent cannot be used as a defense if the alleged victim is younger than the age of consent. In Florida, the age of consent is 18 years old. Therefore, sexual activity with someone under the age of 18 in Florida may be charged as statutory rape. The age of both the perpetrator and the alleged victim are used to determine the severity of the offense. In general, the closer the age difference and the older the alleged victim the less serious the offense will be.
If the alleged victim in your case was under the age of 18 though, consent cannot be used as a defense because the law dictates that consent cannot be given at that age. This applies even if the alleged victim initiated the sexual conduct or clearly agreed to the conduct. Furthermore, a belief that the alleged victim was over the age of consent will not work as a defense in the State of Florida. In short, if the alleged victim was over the age of 18 at the time of the conduct giving rise to the charges you may be able to assert consent as a defense; however, if the alleged victim was under the age of 18 at the time of the incident consent is not a viable defense.
If consent is not a viable option in your case that does not mean you don’t have a defense to allegations of sexual battery or lewd and lascivious conduct. Some common defenses, apart from consent, include:
- I didn’t do it! –This defense alleges that you never engaged in the sexual conduct alleged by the State of Florida. In essence, you are saying that the victim made up the allegations or is mistaken (see mistaken identity).
- The victim is wrong/mistaken identity –when the perpetrator was a stranger to the victim, identification is often made by picking the defendant out of a line-up or photo array. Unfortunately, this can lead to an innocent person being accused, particularly when there is no forensic evidence to support the identification. If you were picked out of a line-up or photo array your defense may simply be that the victim is wrong.
- Tainted evidence/illegal search and seizure – evidence gathered by the police may have been obtained illegally and/or could be compromised if the proper chain of custody procedures were not used. If so, the evidence may be excluded from the trial, often leaving the prosecution without sufficient evidence to secure a conviction.
- Questioning motivation –this is not the same as “blaming the victim”. Instead, this looks at the reason why the allegations were made in the first place. Sadly, false allegations do sometimes stem from a jilted ex, a jealous lover, or a parent fighting for custody of a child. If this is truly the case it can form the foundation of a defense.
- Claiming insanity –insanity is an affirmative defense in Florida, meaning that your attorney must prove that you suffered from a mental condition or defect and that the condition or defect caused you to not know what you were doing and/or that what you were doing was wrong.
Generally speaking, a sex offender is someone who has been convicted of a sex crimes act where state or federal laws require them to be placed on the Sexual Offender Registry. Florida’s laws are very broad in defining who is considered a sex offender. Sex offenders include people who have been convicted of various crimes such as:
- Sexual Misconduct
- Kidnapping of a Minor
- False Imprisonment of a Minor
- Luring or Enticing a Child
- Human Trafficking
- Unlawful Sexual Activity with Certain Minors
- Lewd or Lascivious Offense with a Minor
- Video Voyeurism of a Minor
- Child Pornography
Additionally, Florida recognizes similar convictions for sex crimes in other states.
Prosecutors face a heavy burden of proof in criminal cases: they are required to prove every element of the crime beyond a reasonable doubt. It is important for anyone accused of a sex crime to be aware that one of the elements the prosecution must prove beyond a reasonable doubt is that the sex act occurred.
Unfortunately, many people accused of sexual battery make a serious mistake when approached by law enforcement. Since the accused generally hasn’t talked with a criminal defense attorney at that stage, he may think that he can “clear up” the issue by explaining that the sex was consensual. However, the police generally aren’t there to clear up a misunderstanding. They’re seeking evidence of a crime. When a defendant rushes to tell his side of the story, he often unwittingly provides evidence that will later be used against him, such as an admission that he engaged in sexual activity with the alleged victim.
The earlier in the process you retain an experienced criminal defense attorney, the more opportunity that lawyer will have to build a strong defense for you. If the prosecution is unable to prove each element beyond a reasonable doubt, the case could be dismissed, or the judge or jury could return a not guilty verdict.
Consent is often a key issue in a sexual battery case. Simply proving that the sexual act took place is not sufficient; the prosecution must also establish beyond a reasonable doubt that the act took place without the alleged victim’s consent.
The evidence regarding consent is often one person’s word against the other’s. In that situation, the defense has a strong argument that the prosecution’s burden has not been met. The prosecutor will attempt to support the case with physical evidence and the testimony of experts, but an experienced criminal defense lawyer will have strategies for disputing that type of evidence, as well.
Some of the most common physical evidence in sexual assault cases involves DNA evidence connecting the defendant to the crime and medical evidence supporting the claim that the alleged victim was assaulted. This evidence can be challenged in many ways, including:
• Questioning the reliability or accuracy of collection or testing procedures
• Showing a break in the chain of custody of samples or evidence
• Having a defense expert challenge the prosecution’s conclusions
• Moving to suppress the evidence
When evidence in a criminal case is suppressed, the prosecution is prevented from presenting that evidence to the jury. While there are many reasons evidence may be suppressed in a criminal case, one of the most common is that the evidence was illegally obtained. For example:
• Statements by the defendant may be excluded if the police were required to read Miranda warnings and did not do so
• An audio recording may be excluded if it was recorded without the defendant’s knowledge or consent
• Physical evidence may be excluded if it was collected without the defendant’s consent or a valid search warrant
Sexual battery is synonymous with rape in the state of Florida. A person commits this crime when he or she has nonconsensual vaginal, oral or anal sex with another individual by using a sexual organ or a physical object. (FL. Statute Section 794.011)
The crime is considered enhanced if it is:
- With a child
- Likely to cause a serious personal injury
- Committed using a deadly weapon
The penalties for sex crimes vary depending on the ages of those involved in the crime and the circumstances of the wrongdoing. For instance, if the offender is 18 years old or older and the victim is younger than age 12, then the accused person will be facing a capital felony, punishable by life in prison in addition to the other penalties, including fines and designation as a sexual predator or offender.
If the victim is older than age 12, then an offender who is at least 18 years old will receive a fine and up to 30 years in prison. A judge may punish the offender with both penalties. The consequences could also be more severe in cases where the victim is physically unable to resist the sexual battery or is mentally incapacitated.
If you or someone you know is accused of committing a sex crime, contact our office immediately to schedule a free consultation to discuss your case. Our attorneys have years of experience defending individuals charged with sexually related criminal offenses.
When most people reflect on rape, they often think of it as an encounter that occurs between the victim and a stranger. However, in the case of sexual battery, it often occurs between two individuals who know each other. This may include:
- Family members/authoritative figures
A husband or wife can be charged with sexual battery against their spouse. These cases routinely depend on whether the victim spouse agreed to the sexual encounter after using drugs or drinking alcohol. The defense attorneys at Powers Sellers & Finkelstein, PLC. represent those who are charged with all types of sex crimes.
If a person is accused of committing a sexual battery, it is very important for him or her to stay silent when speaking to law enforcement. The right to remain silent is an important constitutional principle, one that affords all citizens the privilege against self-incrimination. An accused has the right to consult with an attorney prior to making any statements to law enforcement. Once this right is invoked, law enforcement cannot question the accused. If you are under investigation or under arrest for a sex crime, contact Powers Sellers & Finkelstein, PLC. so that one of our attorneys can advise you on your rights.
There are several defenses available to those accused of sexual battery in Florida. Our attorneys have years of litigation experience and will explore all potential defenses after a thorough investigation into the facts of your specific case.
When it comes to the legal defense of sexual battery cases, our team has the experience to aggressively defend you with confidence. If you are accused of this type of crime, avoid self-incrimination, and be sure to contact us at Powers Sellers & Finkelstein, PLC. for immediate representation.
- Aggressive Criminal Defense | Best Criminal Trial Lawyers in Clearwater, FL
- Assault and Battery
- Traffic Tickets
- Credit Card Fraud
- Domestic Violence
- Drug Crimes
- DUI & Traffic
- Felony DUI
- Insanity Defense
- Jail Diversion
- Juvenile Crime
- Murder and Manslaughter Defense
- Seal and Expunge Records
- Sex Crimes
- Violation of Probation
- Violent Crimes
- Outstanding Warrant Issues Clearwater Florida | Warrant Lawyers Tampa Florida
- Other Crimes
Trust the Top Google Reviewed Criminal Defense & Personal Injury Law Firm in Clearwater.
FREE CRIMINAL DEFENSE | PERSONAL INJURY CASE EVALUATION
Criminal Defense for Unlicensed Contracting in Clearwater, Florida
Criminal Defense for Unlicensed Contracting in Clearwater, Florida
Testimonials found on this website are actual client reviews of Powers Sellers & Finkelstein, PLC. We appreciate our clients and their willingness to share their experiences. Please keep in mind that the success of any legal matter depends on the unique circumstances of each case: we cannot guarantee particular results for future clients based on successes we have achieved in past legal matters.
I couldn't have anyone better than her to have worked with me regarding my case. The outcome in this case was beyond satisfactory. best result that i could have dreamed for myself was made true . She worked very efficiently with me while I was out of state and dealt with great professionalism. Also, Proactively keeping me in the loop regarding my case. This is the team to go for if you ever somehow get in situation with the law. 5💥
I am very satisfied with the service I received. My case was not that big, but it meant a lot to me. MS Amanda Sellers accepted the case, advised me to leave it to her completely, so I do not have to worry about notices and appearances. She carefully listened to me, drafted the negotiation strategy, and took it from there. The end result is CASE DISMISSED!!! no fines, no charges, no points. Thanks to her my record stayed clean as it should.
My name is Edgar H and Amanda and her associates were amazing from beginning to end. Amanda handled my VOP flawlessly. Communication for me is KEY and words can’t express how much I appreciated Amanda and her team always being available for my questions and concerns through one of the toughest moments in my life.
Thank you endlessly Amanda!
From the moment I first spoke with Amanda, I never considered seeking the help of another attorney. Her knowledge, genuine concern, and calming influence were so valuable to me while navigating a difficult situation. She brokered a favorable resolution to my case and I would recommend her services to anyone in need of expert legal counsel and human support.
Amanda and her team were able to help our client who has been homeliness for 10 years clear his record in Florida and release him for any outstanding warrants. He now can secure a job and housing and move forward with his life.
They were very efficient but most of all had a true concern for their client.
My son was charged with 2 criminal charges second-degree felony’s. We hired Jenna Finkelstein and within a week she had both charges brought down to a third-degree felony and kept us informed every step of the way. She was very personal, very down to earth, very easy to reach and always returned calls right away. He ended up with no jail time and one year probation and was off in six months with good behavior. Jenna was very proactive at our first appointment and gave us five steps to do within the first week to make it sure that we have the best outcome. Jenna went above and beyond the call of her job and really took a personal interest in our case. She gave us peace which was the most important thing at that time of our life. If anybody I know ever gets into criminal trouble.... I would highly advise them to contact Jennna Finkelstein. Thanks for your hard work Jenna.
Dad of a good kid
Amanda Sellers has done magnificent work for my back to back traffic cases. With unusual out-of-state license woes hanging in the balance she preformed well over my expectations. Above and beyond she went for me and opened the ceiling on my otherwise dark a closing tunnel. I cannot thank her enough for helping me clear my path to a calmer, clearer outlook for my future
Amanda and Jenna are wonderful attorneys that have chosen a career of helping those that can't always help themselves. Working closely with Amanda showed her passion and drive to protect the innocent while never stepping down. If you are in need of legal counsel at a great price, these two ladies will not let you down!!
There are many law firms that are all about the money… But what sets Jenna apart as an attorney and distinguishes her from the rest is her compassion and personal approach. She not only empowered us with knowledge before our case even went to court, but also provided us with the silver lining during our darkest time in the form of her emotional support and reassurance. She also made the time to help us even at the most urgent times, and she treated us with fairness and respect, regardless of our personal background. She has both the experience and true passion for helping her clients, and for that, I can’t thank her enough. So if you need an attorney, Ms. Jenna Finkelstein is the one!