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Key Biscayne Sex Crimes Attorney

Local defense lawyer for federal & state criminal charges

Sex crimes cases are some of the most serious matters state and federal courts handle. Therefore, it’s no surprise that being under investigation for a sex crime in Key Biscayne can seemingly turn your life upside down. Relationships with family members may become strained. Job security becomes uncertain. There is a looming possibility of going to prison. Although you may be accused of a very serious offense, you still have constitutional rights. For more than 35 years, Key Biscayne sex crime lawyer David J. Joffe has defended the rights of the accused throughout South Florida. If you have been accused of a sex crime, an experienced sex offense attorney can protect you from the legal overstep and infringement criminal court defendants experience.

Wrongfully accused of a sex crime in Key Biscayne

Without the help of a seasoned Key Biscayne sex crimes defense attorney, a wrongful accusation of a sex crime can continue to haunt you even if you are proven to be innocent. Nevertheless, there are several reasons false accusations happen. Some common reasons include:

  • revenge
  • mistaken identity
  • contemptuous divorce, custody battle, or other legal dispute
  • mental illness
  • blackmail

For some people, any association with an allegation of a sex crime may create a lasting suspicion. While others stop following the developments of a case before all of the facts unfold. Retaining legal counsel as early as possible better positions your Florida sex crimes defense lawyer to preempt the reputational damage that may otherwise occur. Joffe Law will work diligently to protect your reputation while we build the strongest case for your defense.

State vs. federal sex offenses

Although most crimes are prosecuted by the state, many offenses can also be federal crimes. If a defendant is suspected of a state offense that also falls within the federal government’s jurisdiction, the defendant may be subjected to two criminal proceedings, one in state court and another in federal court. Because the federal and state court systems are separate, a defendant may be prosecuted and sentenced on two separate occasions for state and federal offenses that arise from the same incident. The federal government may assume jurisdiction if certain factors are present in a case. Some factors that implicate federal jurisdiction are:

  • the criminal activity takes place within the stream of interstate or international commerce
  • the criminal activity takes place on federal government land
  • the criminal activity involves a federal agency
  • the criminal activity involves a federal government official

Federal sex crimes charges generally have stricter sentencing guidelines and carry longer prison sentences than state offenses. In some cases, whether the federal government has jurisdiction over the matter is debatable. Your Key Biscayne federal defense lawyer can challenge jurisdiction in these cases.

Just Arrested in Key Biscayne?
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Federal rape and sexual assault charges in Key Biscayne

Terms like rape and sexual assault are often used interchangeably in everyday conversation. However, these words carry very specific implications when it comes to the law. Different jurisdictions use different terms to describe the act most adults would refer to as rape.

RAPE, AS DEFINED BY FEDERAL LAW

The federal rape law provides several examples of situations that may be charged as rape under federal law. An individual may be convicted on a federal rape charge if he or she:

  • commits a sexual act by using unlawful force
  • commits a sexual act by using force that causes or is likely to cause death or grievous bodily harm to any person
  • 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
  • commits a sexual act by first rendering the victim unconscious
  • commits a sexual act by administering to the victim by force or by threat of force, or without the victim’s knowledge or consent, a drug, intoxicant, or other similar substance that impairs the victim’s ability to appraise or control conduct

Within the context of the federal rape law, the term “force” refers to the use of a weapon, the use of enough physical strength or violence to restrain, overcome, or injure a person, or inflicting physical harm sufficient to coerce or compel the victim to comply. Unlawful force is more simply defined as force that is not legally justified or excused.

SEXUAL ASSAULT UNDER FEDERAL LAW

The legal definitions of rape and sexual assault may sound very similar under federal law, but there are some key differences. One key element in the federal rape law is the use of physical force that is sufficient to cause grievous bodily harm or death or the threat thereof. The use of deadly or grievous bodily harm-inducing force is not an element in the sexual assault law. However, the federal sexual assault law focuses more on the perpetrators use of deception or otherwise taking advantage of the victim’s preexisting mental or physical condition. Where force and threats thereof are mentioned in the sexual assault statute, the statute does not require the potential to cause grievous bodily harm or death. A defendant may be convicted for sexual assault under federal law if he or she:

  • commits a sexual act on someone else by threatening or placing the victim in fear
  • commits a sexual act on someone else by making a fraudulent representation that the sexual act serves a professional purpose
  • commits a sexual act on someone else by inducing a belief by artifice, pretense, or concealment that the defendant is someone else
  • commits a sexual act without the victim’s consent
  • commits a sexual act while knowing or having reason to know the victim is asleep, unconscious, or otherwise unaware that the sexual act is occurring
  • commits a sexual act when the victim is incapable of consenting due to impairment by any drug, intoxicant, or similar substance and the defendant is aware or should have reasonably known about the victim’s condition
  • commits a sexual act when the victim is incapable of consenting due to a mental disease or disorder and the defendant knows or has reason to know about the victim’s condition
  • commits a sexual act when the victim is incapable of consenting due to a physical disability and the defendant knows or has reason to know about the victim’s condition

The federal rape and sexual assault statutes have a myriad of legal terms that weigh heavily into the determination of whether a federal court may convict a defendant based on the charge. Your Key Biscayne sex crimes attorney has thorough knowledge of federal sex crimes laws and relevant case law.

Sexual battery charges in Key Biscayne FL

Florida prosecutes rape cases under the state’s sexual battery laws. Compared to the federal rape law, the state’s sexual battery law is much more detailed as it specifies how sentencing may differ in a variety of different circumstances. For example, sentencing for sexual battery in Florida may vary depending on the ages of the defendant and the victim.

If a defendant who is 18 or older is accused of sexual battery on a victim who is 18 or older, the charge is a second-degree felony if the case does not involve any aggravating factors. If convicted, the defendant may be sentenced to up to 15 years in state prison and ordered to pay a fine of up to $10,000. A sexual battery charge may be enhanced to a first-degree felony offense under the following circumstances:

  • the victim is 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 on the victim and the victim reasonably believes the offender has the ability to carry out the threat
  • the offender coerces the victim by threatening to retaliate against any person and the victim reasonably believes the offender has the ability to carry out the threat in the future
  • the offender, without the 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 disorder and the offender has reason to believe or has actual knowledge of the condition
  • the victim is physically incapacitated
  • the offender is a law enforcement officer or government elected official

Sexual battery cases in which the defendant is 18 or older and the victim is at least 12 years of age but under 18 are also first-degree felony cases with a maximum sentence of 30 years in prison. If the defendant is 18 or older and the victim is under the age of 12, the maximum sentence increases to life in prison.

Sentencing is more lenient in sexual battery cases in which the defendant is under 18. Cases in which the defendant is under 18 and the victim is between the ages of 12 and 18, sexual battery is a third-degree felony, punishable by up to five years in prison and a fine of up to $5,000. If the victim is under 12, the offense is a second-degree felony with a maximum sentence of 15 years in prison and a fine of up to $10,000.

Statutory rape law in Florida

Statutory rape laws refer to the age of sexual consent in a state. In Florida, the age of consent is 18. Generally, anyone who engages in sexual activity with someone who is under the age of 18 may be charged and convicted for a sex crime. In Florida, convicted defendants who engage in sexual activity with a minor are also generally required to register with the state’s sex offender registry. Many states carve out exceptions to the statutory rape laws to minimize the penalties younger adults and minors who engage in sexual activity with a consenting minor may face.

Florida’s Unlawful Sexual Activity With Certain Minors statute grants two types of exceptions to the concept of statutory rape. Under the first exception, adults who are under the age of 24 may not be charged for engaging in sexual activity with a minor if the minor is 16 or 17.

The second exception, commonly referred to as a “Romeo and Juliet” law, allows a minor who engages in consensual activity with another minor to file a petition to waive the sex offender registry requirement. It is important to note that Florida’s “Romeo and Juliet” law does not waive criminal liability for minors who engage in consensual sexual activity. Therefore, a minor may be prosecuted and convicted of a felony offense for engaging in sexual activity with another minor. Defendants may only petition to have the sex offender registry requirement waived if their case meets all the following requirements:

  • the victim was at least 14 years old
  • the victim consented to the sexual activity
  • the defendant has never previously been accused of a sex crime
  • the offense must qualify for petition
  • the defendant was no more than four years older than the victim at the time of the offense

Florida lewd and lascivious laws

Florida’s statutes address sex crimes against minors in multiple statutes contained in several chapters. The state’s lewd and lascivious laws cover child molestation and other indecent acts against children. It may seem as if there is overlap between the state’s sexual battery statutes and the lewd and lascivious laws. Prosecutors may charge a defendant with sexual battery and a lewd and lascivious offense if the victim is a minor. If the prosecution is unable to prove sexual battery, the defendant may still be convicted under the lewd or lascivious laws if the state can establish the required elements.

LEWD OR LASCIVIOUS BATTERY

Apart from the victim’s age, Florida’s lewd or lascivious battery law differs from the state sexual battery law in that the victim’s lack of consent is not a required element for conviction. An individual may be convicted on a charge of lewd and lascivious battery if he or she engages in sexual activity with anyone who is 12 years of age or older but under the age of 16. The act of encouraging, forcing, or enticing anyone who is less than 16 years of age to engage in any sexual activity is also lewd or lascivious battery under Florida law. Generally, lewd or lascivious battery is a second-degree felony, punishable by up to 15 years in prison and a fine of up to $10,000 if the defendant is 18 or older. However, the offense is a first-degree felony if the defendant has one or more prior offenses for sexual battery or a lewd act against a minor.

LEWD OR LASCIVIOUS MOLESTATION

Lewd or lascivious molestation is Florida’s child molestation law. A defendant may be convicted for child molestation if he or she touches a minor who is under the age of 16 in a lewd or lascivious manner on the breasts, genital area, genitals, or buttocks whether directly or through clothing. A perpetrator who entices or forces someone who is under 16 to touch the perpetrator also commits lewd or lascivious molestation.

If the defendant is 18 or older and the victim is less than 12 years old, lewd or lascivious molestation is a first-degree felony with a maximum sentence of life in prison. Individuals who have one or more convictions for a similar offense against a minor may be charged with a first-degree felony with a maximum sentence of 30 years in prison. The offense is a second-degree felony if the defendant is under 18 and the victim is less than 12 years of age or if the defendant is 18 or older and the victim is at least 12 years of age but under the age of 18.

LEWD OR LASCIVIOUS CONDUCT

Similar to lewd or lascivious molestation, lewd or lascivious conduct is based on the act of illegally touching a minor. Where lewd or lascivious molestation prohibits the act of touching a minor on certain parts of the body, lewd or lascivious conduct does not specify areas on the body in which the contact occurs. A defendant may be convicted on a charge of lewd or lascivious conduct if he or she intentionally touches someone who is under the age of 16 in a lewd or lascivious manner. An individual who solicits anyone who is under the age of 16 to engage in a lewd or lascivious act may also be charged under the lewd or lascivious conduct law. For defendants who are 18 years of age or older, lewd or lascivious conduct is a second degree felony with a maximum sentence of 15 years in prison and a fine of up to $10,000. If the defendant is under the age of 18, the offense is a third-degree felony with a maximum sentence of five years in prison and a fine of up to $5,000.

LEWD OR LASCIVIOUS EXHIBITION

Florida’s lewd or lascivious exhibition law makes it possible for prosecutors to charge individuals who engage in sexual acts or simulated sexual acts in the presence of a minor. A defendant may be convicted for lewd or lascivious exhibition if he or she engages in any of the following acts in the presence of a minor who is under the age of 16:

  • Intentionally masturbates
  • intentionally exposes the genitals in a lewd or lascivious manner
  • intentionally engages in sadomasochistic abuse
  • intentionally engages in sexual bestiality
  • intentionally simulates a sexual act
  • intentionally engages in any other sexual act that does not involve physical sexual contact with the victim

An individual who is 18 or older who is accused of lewd or lascivious exhibition may be charged with a second-degree felony. If the defendant is under the age of 18, the offense is a third-degree felony. Florida law recognizes an exception to the lewd or lascivious exhibition law for mothers who are breastfeeding their child in any situation.

Child pornography laws in Florida

Florida’s child pornography laws aggressively penalize the possession, distribution, production, and promotion of child pornography. Child pornography cases are prosecuted through several laws that target the exploitation of minors.

POSSESSION OF CHILD PORNOGRAPHY

Being accused of possessing child pornography is easier than people may think. An individual may be charged with possession of child pornography under Florida law if he or she actively or constructively possesses visual depictions of minors who are engaged in sexual activity.

Active possession occurs when the defendant has the illegal materials in his or her pocket, on his or her body, or in an accessory the defendant is wearing on his or her body such as a backpack or shoulder bag. If the illegal materials are within the defendant’s reach, the defendant has active possession. Constructive possession refers to materials that are located in an area that is within the defendant’s control. Personal lockers, storage units, desk drawers, and closets are examples of areas that often meet the requirements for constructive possession.

Defense attorneys challenge possession in situations in which the defendant has been accused of owning illegal materials that were found in a shared setting. Examples may include a common area household closet the defendant shares with a roommate or a storage unit the defendant shares with a business partner. An attorney would likely challenge the element of intent if a defendant allowed someone to borrow his or her laptop and the illegal images were found after the borrower returned the laptop.

Florida also prosecutes sexting cases that involve minors under the state’s child pornography statute. Adults and minors who solicit sexual images via text message from a minor may be charged under the state’s lewd and lascivious laws. If an adult sends a sexual image to a minor, he or she may be charged under the state’s law against transmitting materials that are harmful to a minor. Anyone of any age who receives a sexual image of a minor via text message may be charged with possession of child pornography. Sharing the image with someone else may result in the person who shares the image being charged for promoting a sexual performance by a minor and distributing child pornography. Make sure you retain a child pornography defense lawyer in Key Biscayne immediately after your arrest.

Key Biscayne defense lawyer for sex crimes charges

Joffe Law is South Florida’s trusted law firm for people who are accused of a sex crime in Key Biscayne and surrounding areas. We value our clients’ privacy and handle each case with discretion. Whether you are facing a malicious accusation or a chat room charge in Key Biscayne, call (305) 814-1161 to learn why our Florida defense attorney stands out from the rest.

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