Sexual Battery and Rape

Sexual battery and rape are very serious violent crimes in Florida and these offenses can carry extremely harsh penalties. The definition of sexual battery includes the act commonly known as rape by a sexual organ or by an object. Sexual battery generally involves touching or penetration of sexual organ. A sexual battery is punishable as a life felony in Florida if it is committed against a victim 12 or older and the offender uses or threatened use of a deadly weapon or if the offender threatens, or actually uses, force likely to cause serious personal injury.

A sexual battery on a victim under 12 years of age by person over 18 years of age is a capital felony. A capital felony can be punishable by life or by the death sentence.

Sexual battery is a first degree felony if it is committed against a victim 12 years or older and takes place under one of the following circumstances.

1. The victim is physically helpless to resist;
2. Threatening to use force or violence;
3. Threatening to retaliate against the victim;
4. Administering narcotics or other intoxicating substance;
5. Victim is mentally defective; or
6. Offender is a law enforcement officer, correctional officer or probation officer

It is a second degree felony for a person to commit a sexual battery on a victim over the age of 12, without consent, that does not involve physical force and violence likely to cause serious personal injury.

A person who has a familial or custody authority over a person over 12 but under18 years of age commits a first degree felony sexual battery. If the victim is under 12 years of age, it is a capital felony.

Please do not hesitate to contact Miami attorney Ken Swartz if you or someone you love has been accused with sexual battery or rape.

Ignorance of Age is not a Defense

The accused cannot claim as a defense that he was unaware of the victim’s age. Florida law does not recognize this defense. So it will not help if the victim looked over 18. It also will not help to argue the victim said she was over 18. Florida law does not recognize a defense that the victim misrepresented his or her age to the offender.

Lewd and lascivious offenses under Florida Statute §800.04 involve sexual activity with a person under the ages of 16, punishable as a second degree felony. It is a life felony if committed against a victim under the age of 12. The statute defines the definition of sexual activity as generally involving touching or penetrating sexual organs.

As in the sexual battery offenses, an offender charged with lewd and lascivious offense cannot raise a defense that he believed the victim was older or that the victim misrepresented her age. Sexual activity with an underage person is a strict liability crime.

Requirement to Register as a Sex Offender

A person convicted of a sexual battery or lewd and lascivious crime must register as a sexual offender if found guilty even if it was a juvenile adjudication. An exception exists in Florida under what is commonly known as the Romeo and Juliet Law. A person may qualify to be removed from the sex offender registration requirement if a person can show the following:

1. Only one conviction;
2. The adjudication was withheld; and
3. The offender was not more than 4 years older than the victim, and
4. The victim was 14 – 17 years at the time of the violation.

Unfortunately, an offender can not take advantage of this law if he has two or more violations. In Courson v. State, the defendant had 2 separate convictions for lewd and lascivious conduct. Even though his age range met the guidelines, the court found he did not qualify.

Sexual battery and rape are serious offenses that can have severe consequences. If you or someone you know has been accused of one of these offenses, you need a Florida Bar Board Certified Criminal Trial Lawyer on your side. Ken Swartz has the experience and expertise in criminal law to handle your problem. As one of the top Miami criminal defense attorneys in Florida, he is prepared for your defense.