Kendall Sex Crimes Defense Lawyer

Rape and sexual assault under federal law

Each jurisdiction may choose its own terms to describe sex offenses. Under federal law, rape and sexual assault are distinctly different offenses. The differences may seem subtle at first glance, but they are legally significant.

FEDERAL RAPE LAW

The federal rape statute includes five different definitions of rape. An individual may be convicted for rape in federal court if he or she commits a sexual act on someone else by:

• using unlawful force against the victim
• using force that causes or is likely to cause death or grievous bodily harm to any person
• threatening or placing the victim in fear that any person will be subjected to death, grievous bodily harm, or kidnapping
• first rendering the victim unconscious
• administering to the victim by force or threat of force, with or without the knowledge or consent of the victim, a drug, intoxicant, or similar substance and thereby substantially impairing the victim’s ability to appraise or control conduct

The key elements in a rape charge are the use of force, a violent threat, or the threatening or forceful administration of a drug or intoxicant to the victim. If a federal prosecutor fails to prove the existence of at least one of those factors in a federal rape case, the defendant cannot be convicted for rape. However, the defendant may be convicted for another sex offense.

SEXUAL ASSAULT UNDER FLORIDA LAW

There are several conditions that meet the definition of sexual assault under federal law. An individual may be charged with sexual assault in federal court if he or she:

• commits a sexual act against someone else by threatening or placing the victim in fear
• commits a sexual act against someone else by making a fraudulent representation that the sexual act will affect the victim’s profession
• commits a sexual act against someone else by inducing a belief by any fraud or artifice, pretense, or concealment of the offender’s identity
• commits a sexual act against someone else without the victim’s consent
• commits a sexual act against someone else when the offender knows or reasonably should know that the victim is asleep, unconscious, or otherwise unaware that the sexual act is occurring
• commits a sexual act against someone else when the victim is incapable of consenting to the sexual act due to impairment by a drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person
• commits a sexual act against someone else when the victim is incapable of consenting to the sexual act due to a mental condition or physical disability and that condition is known or reasonably should be known by the defendant

The federal sexual assault statute references factors like threatening behavior and impairment by a drug or intoxicant, which also mentioned in the federal rape statute. However, those factors are mentioned to a lesser degree. For example, instead of proving the defendant threatened violence, death, or kidnapping, in a sexual assault charge, the prosecutor is only required to prove the defendant generally placed the victim in fear. Instead of proving the defendant forcefully administered a drug or intoxicant to the victim, proving the defendant knew or should have known the victim was in an intoxicated state that affected the victim’s ability to consent is sufficient. The sexual assault statute also references the use of deception or concealment to induce sexual activity with the victim.

AGGRAVATED SEXUAL CONTACT AND ABUSIVE SEXUAL CONTACT

Federal law draws a clear distinction between a sexual act and sexual contact. A sexual act refers to any of the following:

• any degree of penetration by the male sex organ into the vulva, anus, or mouth
• contact between the mouth and the penis, vulva, scrotum, or anus
• any degree of penetration of the vulva or penis or anus of someone else by any object with the intent to abuse, humiliate, harass, or degrade any person or arouse the sexual desire of any person

Where a sexual act involves penetration or contact between the mouth and certain parts of the body, sexual contact focuses more generally on touching. Sexual contact is defined as touching or causing another person to touch–directly or through clothing–the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person with the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. The touching may be accomplished by any part of the body or object.

Aggravated sexual contact occurs when any person causes sexual contact upon or by someone else in a manner that would meet the definition of rape if the defendant would have committed a sexual act instead of sexual contact. For example, if a male perpetrator uses unlawful force and touches the victim’s genitals with his or her mouth through a layer of clothing, the defendant would likely be charged with aggravated sexual contact. The presence of the layer of clothing prevents the offense from being a rape charge.

Abusive sexual contact occurs when someone commits or causes sexual contact upon or by another person if the offense would meet the definition of sexual assault if the sexual contact had been a sexual act.

Florida’s sex crimes statutes

Florida law does not specifically reference the word rape or sexual assault. Instead, the state’s statutes refer to those offenses under the general term “sexual battery.” Florida’s sexual battery statutes thoroughly describe multiple conditions that meet the statutory definition of sexual battery and the possible sentences, based on the age of the defendant and the victim. The state law definition of sexual battery closely mirrors the federal law definition of rape. One key exception is that Florida’s definition of sexual battery focuses on the lack of consent and does not require state prosecutors to prove the use of violence, unlawful force, or a threat of grievous bodily harm. Instead of being a required element, the use of force and violence are aggravating factors that can enhance sentencing for a base level sexual battery charge.

SEXUAL BATTERY CASES WITH ADULT OFFENDERS AND VICTIMS

In the absence of the use of force or other aggravating factors, sexual battery is a second-degree state level felony offense if the offender and the victim are at least 18 years of age. If convicted, the defendant may be sentenced to a maximum of 15 years in prison and ordered to pay a fine of up to $10,000. Sexual battery is a first-degree felony if the victim and the offender are at least 18 years of age and any of the following factors are present in the case:

• the victim was physically helpless to resist the sexual activity
• the offender coerced the victim to comply with the sexual activity by threatening to retaliate against the victim or any person and the victim reasonably believes the offender has the ability to carry out the threat in the future
• the offender coerced the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat
• the offender, without the prior knowledge or consent of the victim, administered or had knowledge of someone administering to the victim any narcotic, anesthetic, or other intoxicating substance that mentally or physically incapacitates the victim
• the victim has a mental condition, and the offender had reason to believe the victim has a mental condition or has actual knowledge of the condition
• the victim was physically incapacitated
• the offender is a law enforcement officer, correctional officer, correctional probation officer, elected official, or any other person who is in a position of authority in a probational or detention setting

If convicted, the defendant may be sentenced to a maximum of 30 years in prison and ordered to pay a fine of up to $10,000. It is important to note that in some cases, first degree felony sexual battery charges may carry higher maximum sentences.

SEXUAL BATTERY CHARGES IN CASES WITH ADULT OFFENDERS AND MINOR VICTIMS

Florida law distinguishes between minors who are at least 12 years of age and those who are younger than the age of 12. Minors who are younger than 12 years old are considered by law to be “prepubescent minors.” Crimes against minors who are under 12 tend to carry more severe sentencing if the victim is severely injured. The offender will also likely be charged with one or more other offenses under Florida’s lewd and lascivious laws.

An offender who is 18 or older who commits an act of sexual battery with the victim’s consent against a victim who is younger than 18 but at least 12 years of age commits a first-degree felony if no aggravating factors are present. If convicted, the defendant may be sentenced to a maximum of 30 years in prison and a fine of up to $10,000. Anyone who uses or threatens to use a deadly weapon or uses actual force that is likely to cause serious personal injury when committing sexual assault against a victim who is 12 or older may be convicted for a first-degree felony with a maximum sentence of life in prison.

SEXUAL BATTERY CASES WITH MINOR OFFENDERS

Florida courts generally penalize minor offenders less severely in sexual battery cases. If no aggravating factors are present in the case, sexual battery is a second-degree felony if the offender is under the age of 18 and the victim is 12 years of age or older. However, if a minor offender threatens to use a deadly weapon or uses force that is likely to cause serious personal injury against a victim who is 12 or older, the minor offender will be charged with a first-degree felony with a possible maximum sentence of life in state prison. Sexual battery is also a first-degree felony if a minor offender commits sexual battery against anyone who is age 12 or older in any of the following situations:

• the victim is physically helpless to resist
• the offender coerces the victim to comply by threatening to use force or violence that is likely to cause serious personal injury to the victim and the victim reasonably believes the offender has the ability to execute the threat
• the offender coerces the victim to comply by threatening to retaliate against the victim or another person and the victim reasonably believes the offender has the ability to execute the threat in the future
• the offender, without prior knowledge or consent of the victim, administers or has knowledge of someone else administering to the victim any narcotic, anesthetic, or other intoxicating substance that mentally or physically incapacitates the victim
• the victim has a mental condition, and the offender has reason to believe the victim has a mental condition or the offender has knowledge of the mental condition
• the victim is physically incapacitated
• the offender is a law enforcement officer, parole officer, elected official, or any authority figure in a parole or detention setting

Lewd and lascivious laws in Kendall FL

Florida’s lewd and lascivious laws specifically penalize crimes against minors who are under the age of 16. The phrase “lewd or lascivious” refers to sexual behavior that is distasteful, offensive, or against community standards. Most of the state’s lewd or lascivious laws are based on the act of illegally touching a minor in a sexual manner or engaging in sexual behavior in the presence of a minor. Defendants are prohibited from arguing the victim’s lack of chastity, the victim’s lack of consent, and ignorance of the victim’s age as a defense to a lewd or lascivious charge in Florida.

LEWD OR LASCIVIOUS BATTERY CHARGE

Florida law defines lewd or lascivious battery as engaging in sexual activity with someone who is 12 years of age or older but younger than 16 or encouraging, forcing, or enticing anyone who is under the age of 16 to engage in sadomasochistic abuse, bestiality, prostitution, or any other sexual activity. Lewd or lascivious battery is generally a second-degree state level felony in Florida. If the offender is 18 years of age or older and has at least one prior conviction for a similar offense, lewd or lascivious battery is a first-degree felony offense.

LEWD OR LASCIVIOUS MOLESTATION

Under Florida law, lewd or lascivious molestation is the act of intentionally touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks–or the clothing that covers the areas–of someone who is younger than 16 years of age. The act of forcing or enticing someone who is under the age of 16 to touch the perpetrator is also lewd or lascivious molestation.

An offender who is 18 or older and commits an act of lewd or lascivious molestation against a victim who is less than 12 years of age may be convicted on a first-degree felony offense with a maximum sentence of life in prison. An offender who is under 18 years of age who commits lewd or lascivious molestation against a victim who is under the age of 12 commits a second-degree felony. If the offender is 18 years of age or older and commits an act of lewd or lascivious molestation against a victim who is at least 12 years of age but younger than 16, the offense is also a second-degree felony. If an offender who is younger than 18 commits an act of lewd or lascivious molestation against a victim who is at least 12 but under the age of 16, the offense is a third-degree felony, which carries a maximum sentence of five years in prison and a fine of up to $5,000. Lewd or lascivious molestation is a first-degree felony if the offender is 18 years of age or older and the victim is at least 12 but under the age of 16 and the defendant has at least one prior conviction for a similar offense.

LEWD OR LASCIVIOUS CONDUCT

Florida law defines lewd or lascivious conduct as the act of intentionally touching a person who is under the age of 16 in a lewd or lascivious manner or soliciting a victim who is under the age of 16 to commit a lewd or lascivious act. An offender who is 18 or older and commits an act of lewd or lascivious conduct may be charged with a second-degree felony. Lewd or lascivious conduct is a third-degree felony if the offender is under the age of 18.

LEWD OR LASCIVIOUS EXHIBITION

Lewd or lascivious exhibition is defined as intentionally masturbating, exposing the genitals in a lewd or lascivious manner, or intentionally committing any other act that does not involve actual physical or sexual contact with the victim. Florida’s lewd or lascivious exhibition underscores the importance of ensuring minors are not around if you are engaging in sexual activity or making a gesture that simulates a sex act.

Kendall FL sex crimes defense lawyer

Prosecutors in Florida have a multitude of laws from which to choose when prosecuting sex crimes. If you are accused of a sex crime, chances are likely that you will face multiple charges. Arm yourself for the fight against very serious state and federal charges by enlisting the help of a formidable Kendall FL sex crimes defense attorney. Contact Joffe Law today to receive a case evaluation.