Aventura Sex Crimes Lawyer

Federal rape and sexual assault laws

The federal rape law describes several situations under which a defendant may be convicted for rape. Assuming the case otherwise qualifies for federal jurisdiction, a defendant may be charged with rape in federal court if:

• the defendant commits a sexual act by using unlawful force
• the defendant commits a sexual act by threatening or placing the victim in fear that any person will be subjected to death, grievous bodily harm, or kidnapping
• the defendant commits a sexual act by first rendering the victim unconscious
• the defendant commits a sexual act by administering to the victim by force or threat, or without the knowledge or consent of the victim, a drug, intoxicant, or similar substance that substantially impairs the victim’s ability to appraise or control conduct

Key elements in the federal rape statute are the use of violent force or serious threat and the act of the defendant causing the victim to become impaired due to intoxication. Either of those elements combined with a lack of consent are grounds for a rape conviction if case is within the federal government’s jurisdiction.

Sexual assault, as defined by federal law, appears to be very similar to the rape statute at first glance. However, a key difference is the absence of the defendant’s use of a serious threat or violent force as a required element. Instead, the sexual assault statute focuses more on the use of deception and preexisting factors that cause the victim to be mentally or physically impaired. Where the use of a threat or force is mentioned, the requirement is more general. A defendant may be convicted on a federal sexual assault charge if:

• the defendant commits a sexual act by threatening or placing the victim in fear
• the defendant commits a sexual act by making a fraudulent representation that the sexual act serves a professional purpose
• the defendant commits a sexual act by inducing a belief by any artifice, pretense, or concealment that the perpetrator is another person
• the defendant commits a sexual act without the victim’s consent
• the defendant commits a sexual act while knowing or having reason to know that the victim is asleep, unconscious, or otherwise unaware that the sexual act is occurring
• the defendant commits a sexual act against the victim while the victim is incapable of consenting because the victim is impaired by any drug, intoxicant, or similar substance and the defendant knows or reasonably should have knowledge of the condition
• the defendant commits a sexual act against the victim when the victim is incapable of consenting because the victim has a mental or physical disability and the defendant knows or reasonably should have knowledge of the condition

Federal law defines the phrase “sexual act” similarly to how Florida defines sexual battery. The federal sexual battery law also uses the phrase “sexual contact” to describe two separate offenses that are known as aggravated sexual contact and abusing sexual contact. Aggravated sexual contact occurs if a defendant touches a victim in a manner that does not involve penetration but would meet the federal definition of rape if penetration had occurred. Abusive sexual contact occurs if a defendant touches an victim in a manner that does not involve penetration but would meet the federal definition of sexual assault if penetration had occurred.

Florida’s lewd and lascivious laws

The state’s lewd and lascivious laws prohibit child molestation and other sexual offenses against children. Unlike the sexual battery laws, which can be used to prosecute sex offenses against children, the lewd and lascivious laws do require the state prosecutor to prove the victim’s lack of consent to the sexual activity. Defendants are not permitted to argue the victim’s lack of chastity or lack of knowledge of the victim’s age as a defense in lewd or lascivious cases.

LEWD OR LASCIVIOUS BATTERY

Florida’s lewd or lascivious battery statute is very detailed in terms of how different aggravating factors affect the maximum sentence the court may impose on a defendant. An individual may be convicted for lewd or lascivious battery if he or she engages in sexual activity with a person who is at least 12 years of age but under the age of 16. A defendant may also be convicted for lewd or lascivious battery if he or she entices, encourages, or forces anyone who is under the age of 16 to engage in sadomasochistic abuse, prostitution, bestiality, or any other sexual activity.

If the defendant is 18 years of age or older, lewd or lascivious battery is a second degree felony offense unless the defendant has previously been convicted for a similar offense. Cases in which the defendant has one or more prior convictions for sexual battery or a lewd offense against a minor are first degree felony offenses punishable by a maximum of 30 years in prison.

LEWD OR LASCIVIOUS MOLESTATION

There are several laws that prohibit the act of touching a minor in a sexual manner. The lewd or lascivious molestation law is the statute that most directly addresses the offense of child molestation. A defendant may be convicted under state law for lewd or lascivious molestation if he or she intentionally touches the breasts, genital area, genitals, or buttocks, whether directly or through clothing, of a person who is under the age of 16. A perpetrator also commits lewd or lascivious molestation if he or she entices or forces a person who is under the age of 16 to touch the perpetrator.

If the defendant is 18 years of age or older and the victim is under the age of 12, lewd or lascivious molestation is a first degree felony with a maximum sentence of life in prison. Adult defendants may also be charged with a first degree felony if the defendant has a prior conviction for sexual battery against a minor or a lewd or lascivious offense. However, if the defendant is 18 or older and the victim is at least 12 years of age but less than 16 years of age or if the defendant is under 18 and the victim is under the age of 13, lewd or lascivious molestation is a second degree felony. For defendants who are under 18, lewd or lascivious molestation is a third degree felony if the victim is at least 12 years old but under the age of 16.

LEWD OR LASCIVIOUS CONDUCT

Lewd or lascivious conduct is similar to lewd or lascivious molestation. The major difference between the two offenses is that lewd or lascivious molestation lists specific areas on the victim’s body where prohibited touching may have occurred. The touching described in the lewd or lascivious conduct statute is not limited to certain areas. Instead, the statute focuses on the overall tone of the touching.

An individual may be charged with lewd or lascivious conduct if he or she touches any person who is under the age of 16 in a lewd or lascivious manner.  Soliciting any person who is under the age of 16 to commit a lewd or lascivious act is also lewd or lascivious conduct under Florida law. An adult defendant who is accused of lewd or lascivious conduct faces a second degree felony charge. Lewd or lascivious conduct is a third degree felony if the defendant is under 18.

LEWD OR LASCIVIOUS EXHIBITION

Florida’s lewd or lascivious exhibition law may seem straightforward; however, there are several ways people may surprisingly find themselves facing a criminal charge under the statute. The lewd or lascivious exhibition statute prohibits the act of engaging in sexual activity in the presence of anyone who is under the age of 16. An individual may be charged with lewd or lascivious exhibition if he or she:

• intentionally masturbates in the presence of anyone who is under 16
• intentionally exposes the genitals in a lewd or lascivious manner
• intentionally commits any sex act that does not involve directly touching the victim
• intentionally engages in sadomasochistic abuse, bestiality, or any simulated sexual act in the presence of a minor

The lewd and lascivious exhibition statute requires us all to be mindful of who is present and who can see what we are doing. Although the statute requires prosecutors to prove the conduct was intentional, an adult who is engaging in adult activity at home near a window while children are walking past on their way home from school can easily face a criminal charge. Even the act of simulating a sex act or making an obscene gesture when a minor is present can have serious legal ramifications.

Child pornography offenses in Florida

Florida’s legislature has enacted multiple statutes to take a multi-faceted approach to targeting child pornography and other crimes that exploit minors. There are several state laws that prohibit the possession, transmission, production and promotion of child pornography. State prosecutors also use the state’s laws against prostitution, lewd and lascivious acts, and sexual battery to charge people who are involved in child pornography or other forms of the commercial sexual exploitation of children.

POSSESSION OF CHILD PORNOGRAPHY IN AVENTURA

In Florida, possession of child pornography is a third degree felony offense punishable by up to three years in state prison and a fine of up to $5,000. An individual may be charged with possessing child pornography if he or she actively or constructively possesses visual depictions that show a minor engaging in sexual conduct. Florida law defines sexual conduct as:

• anal sex
• vaginal sex
• oral sex
• lewd exhibition of the genitals
• lewd exhibition of the buttocks
• lewd exhibition of the female breast

A prosecutor may establish active possession by providing evidence that shows the illegal item was found on the defendant’s person or in an accessory the defendant carried on his or her body or within the defendant’s reach. Constructive possession occurs when the illegal item is located in an area that is within the defendant’s control. A private work locker, an assigned storage unit, or a personal closet at home.

PROMOTING CHILD PORNOGRAPHY

Florida law defines promoting child pornography as manufacturing, selling, or transferring any image or video that depicts a minor engaging in sexual conduct. If an individual actively or constructively possesses more than three copies of a sexual image of a minor, the court may presume an intent to promote child pornography. A Florida court may convict an individual who has three or more copies of an illegal sexual depiction of a child with promoting child pornography even if there is no other evidence that suggests the individual intended to promote the material.

Because the legislature wrote the promotion of child pornography statute so broadly, there are a variety of activities Florida courts may interpret as promoting child pornography. For example, sending a sexual image of a minor via email or forwarding a text message that contains a sexual image of someone who is under the age of 17 may lead to criminal conviction for a felony offense. Businesses that operate in the adult entertainment industry sometimes hire workers who are 18 years old. Taking a photo of or receiving a text message or email that depicts someone who is 17 or younger may be charged as a child pornography offense under Florida law.

Promotion of child pornography is a second degree felony with a maximum sentence of 15 years in prison and a fine of up to $10,000. There are certain aggravating factors that automatically upgrade promotion of child pornography to a first degree felony offense. A defendant may be charged with a first degree felony with a maximum sentence of 30 years in prison if he or she has 10 or more sexual images of a minor and one or more image:

• depicts a child who is under five years of age
• contains a depiction of sadomasochistic abuse of a child
• shows the sexual battery of a child
• involves bestiality
• is an actual or computer-generated video, motion picture, or film

Promotion of child pornography may seem like a straightforward crime, but there are times when an accusation may be false. For example, if someone allows a coworker to borrow his or her work laptop, the coworker may view an illegal image. Even if the laptop owner discovers the image and makes a good faith effort to delete the image, computers often automatically make multiple copies of files for retrieval purposes. If the individual’s employer discovers the images and notifies the police, the laptop owner may be charged with a crime and will need to immediately retain an Aventura child pornography defense attorney to disprove the charge. We have professional relationships with cyber forensic specialists and other experts who help us build the strongest case for our clients.

USE OF A MINOR IN A SEXUAL PERFORMANCE

Florida law prohibits the use, authorization, or enticement of anyone who is under the age of 18 to engage in a sexual performance. The act of supplying a minor for a sexual performance may evoke startling images of a child being kidnapped and photographed or recorded. However, the act of requesting a sexual image from a person who is under the age of 18 is a chargeable offense under the statute. Parents, guardians, and custodians who consent to the use of a child in a sexual performance may also be charged for use of a minor in a sexual performance.

Use of a child in a sexual performance is a second degree felony. If convicted, a defendant may be sentenced to a maximum of 15 years in prison and ordered to pay a fine of up to $10,000 if no aggravating circumstances are present in the case.

Sex crimes appeals lawyer in Aventura

Every potential sex crime should be thoroughly investigated. Nevertheless, there are cases in which the court system makes an error and a defendant may be wrongfully convicted. Defendants who are convicted for a sex crime have an automatic right to file an appeal. The appellate process can be lengthy and rigorous. However, the right attorney can help you beat the odds if there are legal errors in your case. Our expert Aventura federal appeals attorney will leverage his knowledge of the state and federal appeals system to help you appeal a wrongful conviction.

Call an Aventura FL sex crimes lawyer

Whether someone has recently made an allegation against you or if a law enforcement agency is formally investigating you, it’s never too early to consult with a reputable Florida defense attorney who specializes in sex crimes cases. Contact Joffe Law to learn more about the types of Aventura sex crimes cases we handle.