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 insanityinsanity 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:

  • Aggravated
  • 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
  • Acquaintances
  • Coworkers
  • Classmates
  • Friends
  • Neighbors

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.

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