In Florida, there are many forms of sex crimes, almost all with severe penalties.
The most commonly thought-of sex crime, rape, does not exist by that name in the Florida Statutes. Instead, section 794.011 criminalizes “sexual battery,” which covers not only what most people think of as “rape” but other conduct as well, such as the “oral, anal, or vaginal penetration by” another person’s sexual organs “or the anal or vaginal penetration of another by any other object.” The phrase “any other object” is just as broad as it seems; whether a sexual organ, finger, or an inanimate object is used to penetrate anally or vaginally, such an action constitutes sexual battery under the law.
Florida statutes also enumerate many circumstances where sexual battery becomes “aggravated” sexual battery. These circumstances, called “enhancers,” increase the severity of the offense from a second-degree felony, punishable by 15 years in prison, to a first-degree felony that doubles the number of years in prison.
Some of these enhancers include circumstances such as the following:
- the victim is physically helpless to resist
- the perpetrator coerced or threatened the victim
- the perpetrator drugged the victim
- the victim is mentally or emotionally disabled
In a situation where an aggravated sexual battery is carried out by threats with a deadly weapon, it is punishable with a life sentence.
Another subset of sexual batteries involves minor victims (those under 18 years of age). Any form of non-consensual sexual battery of a child carries the harshest penalties. Even consensual sexual activity with a child—anyone age 17 or under—is illegal in most circumstances. This crime is commonly referred to as statutory rape, but in Florida is called a “lewd or lascivious battery” or “unlawful sexual activity with a minor,” depending on the specifics. Either way could result in conviction of a second-degree felony carrying a harsh sentence.
One often overlooked penalty to many sex crimes is mandatory registration as a sexual offender or sexual predator. This is a lifetime registration comprising many onerous and embarrassing requirements which carry draconian penalties for failure to comply. Each failure to comply is a separate felony that scores a minimum of 21 months in prison. This figure does not even include the original criminal conviction that resulted in sex offender status.
Beyond criminal prosecution of sex offenses, employers or universities can exact their own pound of flesh for sexual misconduct that does not rise to the criminal level. Employers can classify consensual relationships as sexual harassment. Many universities have taken the position that it is a disciplinable offense to have consensual sexual relations with any person who is intoxicated.Child Pornography >>
People commonly say that you can find anything on the internet.
This is a true statement and is often how people find themselves facing criminal charges of possession of child pornography.
Being accused of possessing child pornography is a serious allegation potentially carrying prison time, is downright humiliating, and will ruin your reputation, both professionally and personally.
Florida Statutes Section 827.071(5)(a) and federal statute 18 U.S.C. § 2252 criminalize the knowing possession of child pornography.
There are several things to know if you are charged with this.
First, the state statute makes it a felony to possess even a single picture.
Because pictures include any digital files stored on a computer, each picture is a separate criminal act. Therefore, a batch download of 100 files of child pornography can turn into 100 separate felony charges.
If a substantial number of images are found on your computer, law enforcement may decide to move your case to federal court, which carries much, much harsher penalties. Not only is there a five-year mandatory minimum sentence required in federal court, but each video clip, no matter how short, is considered the equivalent of 75 still images. This drastically increases the sentencing guidelines applicable to the case. Sentences in federal court routinely run into the 10- and 12-year ranges and up.
The second thing to understand is what child pornography is and what it isn’t.
You may be thinking about pictures you took of your young child in the bathtub, or of a friend’s pictures. Generally, an innocent picture of a child like this is not pornography; not every picture with explicit child nudity is pornography.
The Florida statutes define child pornography to include what one might expect: actual sexual intercourse, bestiality, masturbation, oral sex, and anal sex.
But, the state statutory definition also includes broader categories, including simulated sexual intercourse, simulated anal sex, simulated oral sex, actual lewd exhibition of the genitals, and actual physical contact with the genitals if done with the intent to arouse or gratify a sexual desire, even if it is through clothing.
The categories “actual lewd exhibition” and physical contact “with the intent to arouse or gratify sexual desire” are both more vague. To a degree, the intent of the actual photographer or videographer dictates.
The federal law is similar in many respects. It also prohibits depictions of any sort of sexual intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the anus, genitals, or pubic area. Simulated sexual activity is also unlawful.
If you are charged with possession of child pornography you should consult an attorney as the conduct depicted may fall outside how the courts have interpreted “lewd exhibition” and “intent to arouse”.
As mentioned previously, the statutes criminalize knowing possession of child pornography. Not knowing you were possessing child pornography is a legitimate legal defense. An example of this defense is when a person batch downloads substantial amounts of what he believes is legal, adult pornography but there were child pornography files sprinkled in that the downloader never saw.
Not only is knowing possession a third degree felony, but promoting child pornography is a second degree felony.
The statute defining promotion of child pornography is broad in nature.
While accusations of promoting can arise from sharing pictures and videos with a specific person, they can also come from seeding torrents. Florida statutes create a third separate offense for knowing possession with the intent to promote. This statute further establishes that possessing three or more copies of a picture, video, or other child pornography, is prima facie evidence of intent to promote the material.
In the federal arena, 18 U.S.C. § 2252A contains similar proscriptions but adds a separate section for “offer[ing], send[ing], or provid[ing]” child pornography to a minor. In addition, for a second or subsequent offense related in any way to child pornography, the judge must sentence a defendant to a mandatory minimum of 15 years.
Possession or promotion of child pornography add a lot of points to a sentencing guidelines chart. That, combined with the cumulative nature of an album full of pictures, often creates potential for a substantial prison sentence.
If these punishments aren’t harsh enough, conviction for possession or promotion requires registration as a sex offender in the Florida sex offender database. This registration lasts for the remainder of your life. A federal conviction also requires database registration, and both state and federal law have various other requirements such as annual polygraphs, a sex-offender designation restrict on your driver’s license, and restrictions on where you can live and work and what types of jobs you may hold.