Lighthouse Point Sex Crimes Attorney

Rape as a state and federal offense

People often refer to rape, sexual assault, and sexual battery interchangeably. However, these terms have different meanings when it comes to the law. Moreover, the same term often has a different meaning from state to state and under federal law. If you are accused of a sex crime in Lighthouse Point, your Florida defense lawyer can help you understand the charges you face and develop the most appropriate defense strategy for those specific charges.

Federal rape law

The federal rape law specifies several situations that meet the legal definition of rape. Assuming a case meets the foundational requirements for federal jurisdiction to apply, the defendant may be convicted for rape in federal court if he or she:

• commits a sexual act on someone else by using unlawful force
• commits a sexual act on someone else by using force that causes or is likely to cause death or grievous bodily harm to any person
• commits a sexual act on someone else 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 on someone else by first rendering the victim unconscious
• commits a sexual act on someone else by administering to the victim by force or threat of force, 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

Federal sexual assault

The federal sexual assault law appears to be very similar to the rape law at first glance. However, there are key differences in terms of the level of force described in each law and whether the defendant played a role in impaired the victim’s ability to refuse consent. The federal sexual assault law also makes references to the act of deception. An individual may be convicted for sexual assault under federal law if:

• the defendant commits a sexual act on someone else by threatening or placing
• the other person in fear
• the defendant commits a sexual act on someone else by making a fraudulent representation that the sexual act serves a professional purpose
• the defendant commits a sexual act on someone else by inducing a belief by any artifice, pretense, or concealment that the perpetrator is someone else
• the defendant commits a sexual act on someone else without the victim’s consent
• the defendant commits a sexual act on someone else when the victim is incapable of consenting to the sexual act due to impairment by any drug or intoxicant or similar substance and the victim’s condition is known or should be known by the defendant
• The defendant commits a sexual act on someone else when the victim is incapable of consenting to the sexual act due to a mental disease or disorder or physical disability and the defendant knows or should reasonably have knowledge of the condition

In both the rape and sexual assault statutes, federal law uses the term “sexual act.” Federal law defines a sexual act as any level of oral, anal, or female genital penetration by the male sex organ, contact between the mouth, anus, genitals, or genital area, or any degree of penetration of the female genitals, male sex organ, or mouth with any object with the intent to harass, humiliate, degrade, or arouse or gratify the sexual desire of any person.

Sexual battery offense in Florida

Florida law makes no specific mention of rape. However, the state prosecutes offenses that meet the federal law definition of rape under Florida’s sexual battery law. In contrast to the federal rape law, Florida’s sexual battery statute is comprehensive. The state law contains several sections that thoroughly describe aggravating factors in sexual battery cases that may affect sentencing guidelines for the offense.

Sexual battery cases in which the defendant is age 18 or older and the victim is 18 or older are generally second-degree state level felony cases if no aggravating factors are present. 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. The penalty increases for defendants of all ages if the victim is under the age of 16. A defendant who is 18 or older will likely be charged with a first-degree felony if the victim is under the age of 18. If the defendant is at least 18 years of age and the victim is 12 or older but under the age of 18, the defendant will likely be charged with first degree felony sexual battery with a maximum sentence of up to 30 years in prison and a fine of up to $10,000. If the defendant is 18 or older and the victim is under the age of 12, which state law refers to as a prepubescent victim, the maximum potential sentence increases to life in prison.

Cases in which the defendant is under the age of 18 are charged as third-degree felony sexual battery offenses if no aggravating factors are present. If convicted, the defendant may be sentenced to a maximum of five years in state prison and ordered to pay a fine of up to $5,000. If the victim is under the age of 18, a minor defendant may be charged with second degree sexual battery. 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.

Florida’s sexual battery law specifies certain circumstances in which the severity of sentencing for a sexual battery charge may be increased. Some examples of the specified aggravating circumstances under state law are:

• cases in which the victim is under the age of 12 and the offender severely injures the victim’s sex organs
• cases in which the offender uses physical force in committing the sexual battery
• cases in which the victim is physically helpless to resist
• cases in which the offender threatens to use force or violence that is likely to cause serious personal injury on the victim, and the victim reasonably believes the offender can presently carry out the threat
• cases in which the offender coerces the victim by threatening to retaliate against the victim or any other person, and the victim reasonably believes the offender can 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 the victim has the disorder or has reason to know of the disorder
• the victim is physically incapacitated
• the offender is a law enforcement officer, correction officer, correctional probation officer, or elected official

Defendants who have at least one prior conviction for sexual battery or a similar offense against a minor may also be subjected to enhanced sentencing. If charged for a subsequent sexual battery offense, the defendant may face a first-degree felony charge. If the victim is a minor who is 12 years of age or older, the maximum sentence is life in prison.

Florida’s lewd and lascivious laws

State prosecutors often use a combination of state laws to prosecute defendants in sex crimes cases that involve minor victims. Among the laws prosecutors use in child sexual exploitation cases, Florida’s lewd and lascivious statutes specifically address molestation and related crimes against children.

Lewd or lascivious battery

Florida’s lewd or lascivious battery law is similar to the state’s sexual battery statute. One key difference between the two laws is that in lewd or lascivious battery cases, state prosecutors are not required to prove the victim did not consent to the sexual act. An individual may be charged with lewd or lascivious battery if he or she engages in sexual activity with a victim who is at least 12 years of age but under the age of 16. Encouraging, forcing, or enticing anyone who is under the age of 16 to engage in sadomasochistic abuse, prostitution, bestiality, or any other act that involves sexual activity is also lewd or lascivious battery. Generally, lewd or lascivious battery is a second-degree felony offense except if the defendant is 18 or older and has a prior conviction for a similar offense against a minor. If the defendant has a comparable prior conviction, lewd or lascivious battery is a first-degree felony offense.

Lewd or lascivious molestation

Lewd or lascivious molestation is Florida’s most direct comparison to a child molestation law. An individual may be charged with lewd or lascivious molestation if he or she touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks of a victim who is under the age of 16. Touching the victim through clothing also meets the state law definition of lewd or lascivious molestation. If the defendant is 18 or older, he or she may be charged with a first-degree felony with a maximum sentence of life in prison if the victim is under the age of 12. Enhanced sentencing may also apply if a defendant who is 18 or older has a prior sex crime conviction against a minor victim. If the victim in the present case is at least 12 years of age but under the age of 16, the defendant may be charged with a first-degree felony and sentenced to up to 30 years in prison.

Lewd or lascivious molestation is a second-degree felony in cases in which the defendant is 18 or older and the victim is at least 12 years of age but under the age of 16. Cases in which the defendant is under 18 and the victim is under the age of 12 are also second-degree felony cases under Florida law.

Minor defendants who are accused of lewd or lascivious molestation are generally charged with a third-degree felony offense if the victim is at least 12 years old but is under the age of 16. If convicted, the minor defendant may be sentenced to a maximum of five years in prison and ordered to pay a fine of up to $5,000.

Lewd or lascivious conduct

The lewd or lascivious conduct statute and the lewd or lascivious molestation law are written very similarly. The key difference between the two laws is the specificity of areas on the victim’s body the prosecution is required to prove the defendant touched in a lewd or lascivious manner. The lewd or lascivious molestation law clarifies that touching in certain bodily areas with lewd or lascivious intent meets the definition of lewd or lascivious molestation. In contrast, the lewd or lascivious conduct law focuses more on the intent behind the contact instead of limiting the offense to contact on specific parts of the body. An individual may be charged with lewd or lascivious conduct if he or she touches anyone who is under the age of 16 in a lewd or lascivious manner or if he or she solicits a person who is under the age of 16 to commit a lewd or lascivious act.

Lewd or lascivious exhibition

Lewd or lascivious exhibition is a sex crime that is relatively easy to create the appearance of committing without intent. An individual may be charged with lewd or lascivious exhibition if he or she intentionally does any of the following in the presence of someone who is under the age of 16:

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

The state’s lewd or lascivious exhibition statute makes it imperative for you to be mindful of what you do and to exercise caution when you don’t know who is present or in close proximity. Although the law requires the state to prove the defendant’s intent, people who engage in sexual activity while minors are nearby may find themselves facing a criminal charge if someone who is under the age of 16 observes the sexual activity. Moreover, anyone who makes a sexual gesture or simulates a sex act may potentially be charged with a felony sex crime under state law. If you or someone you know is facing a lewd or lascivious exhibition charge in Lighthouse Point FL, contact a seasoned Florida defense attorney to help you fight the charge.

Child pornography offenses

The increase in availability of digital technology has made it easier for people who have an interest in child pornography to buy, sell, exchange, and transmit sexual images of anyone who is under the age of 18. Florida law defines child pornography as a visual depiction that contains a minor engaging in sexual activity.

It is important to note that because child pornography is so easily transmittable, related offenses very easily become federal matters. The federal government also adopts a very flexible definition of activity that takes place in the stream of interstate or international commerce. For example, someone who uses a digital camera to take photos of someone else who is under 18 may be charged with one or more federal offenses. The federal government may assume jurisdiction even if the person who takes the photos never transmits or transports the images outside of Florida. Based on the federal government’s interpretation of interstate or international activity, the case may be within the federal court’s jurisdiction if the camera the defendant used to take the photos was manufactured outside of Florida.

Child pornography possession cases in Lighthouse Point FL

In Florida, an individual may be charged for possessing child pornography whether he or she has active or construction possession of sexual depictions of a minor. Active possession occurs if the defendant has an illegal item stored on his or her body, in-hand, or in a bag or other accessory the defendant is wearing or physically carrying. Constructive possession occurs if the defendant is storing an illegal item in an area over which the defendant can exercise control. For example, someone who stores child pornography in his or her desk drawer, assigned storage unit, or in a personal closet in his or her residence may have constructive possession of the illegal item.

Possession of child pornography is a third-degree state felony. However, prosecutors are permitted to charge a separate count for each depiction of a child investigators find. If the defendant is convicted for possession of child pornography, the court may sentence the defendant separately for each count. A defendant who is convicted for possessing 500 sexual depictions of a child may be sentenced a maximum of three years in prison separately for each count. Sentencing for possession charges can add up very quickly.

Florida’s courts are also permitted to presume an intent to promote child pornography if a defendant has three or more copies of a sexual depiction of a minor in his or her possession. Therefore, what may appear to be a basic possession case can quickly escalate into a charge for promoting child pornography, which is a second-degree felony offense.

Lighthouse Point FL sex crimes defense lawyer

Joffe Law is a leading sex crimes defense law firm in Lighthouse Point and surrounding areas. We represent people who are accused of sex crimes in communities throughout South Florida. If you have been accused of a sex crime in Lighthouse Point FL, contact our talented team of legal professionals to receive a case evaluation.