Stephen G. Cobb - Florida Criminal Defense Lawyer

What Are Jury Instructions During A Sexual Battery Trial With A Victim 12 Years Or Older But Under 18 Years By A Person In Authority?


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

One of the more difficult, dangerous, and painful types of sexual battery to defend are those involving family members pursuant to section 794.011(8)(b) of the Florida Statutes. This particular offense does not actually have to involve actual family members. The first thing that the state must prove with this particular charge is that the alleged victim was over 12 years of age but less than 18. When dealing with issues of recovered or false memories, age can be a very big deal and may be hotly contested. In other cases, age will not even be an issue. The state must also prove that the defendant stood in the position of familial or custodial authority with regard to the victim. A classic example would involve a mother’s new boyfriend.

In one case that I handled many years ago, a man was charged with this and we could not get a bond whatsoever. Six months later, he got a signature charge and all of the counts against him were dismissed. Why? Simply because the complaining witness who was older than 12 but under 18 had a verifiable history of fabricating things that were not true due to a very serious mental illness complicated by a personality disorder. In other words, she actively hallucinated visually about things that were not present. She also had auditory hallucinations. On top of that, she would often respond to internal commands from voices when she was not on her medication, and occasionally would do so even when fully medicated at her prescribed dose. This was an extremely difficult case.

In another case, a woman had been going through a divorce for about two and a half years from a very successful former military officer. She had three children, the youngest of which was three and a half years of age. She was absolutely beautiful, and after two years of litigation with a difficult ex with whom she was no longer living, she decided to start dating. The soon-to-be-ex-husband was outraged. First, he was outraged because he was looking at a large child support payment and what he saw as an unfavorable division of marital assets. He was also outraged simply because she had a new boyfriend. Lo and behold, an allegation was made by the father that the new boyfriend had sexually battered the youngest child. My client was smart enough to hire a lawyer immediately instead of waiting and hoping.

Unfortunately, when it comes to sex offense cases, people often try to do two things that are absolutely deadly. First, they try to wait it out, hoping it goes away. In addition to waiting and hoping, people often try to explain their way out of it. Yet when the report is written, it will read, “Despite evidence to the contrary, the defendant continues to deny guilt.” Regardless of the fact that that is not what happened, that is how it will be written and testified to in court. Waiting and hoping is a fool’s errand, as is trying to talk one’s way out of something. Since this individual made neither of these mistakes, we were able to establish that it was a false allegation before an arrest warrant could even be applied. In fact, it was obvious by watching the child protection team videos how improperly the child had been influenced by the father. By the time we went to a restraining order hearing on this issue, the father went out of his way to spring across the courtroom before the judge came in telling me that he was concerned that his child had gotten it wrong. What he was really concerned about was that I was going to grill him on the stand and that he was either going to have to commit perjury or admit that he had filed a false police report. This is the context in which a lot of false allegations for this particular charge arise.

So, the state has to show that the alleged victim is 12 years of age or older but less than 18 years of age. Secondly, the state must show that the defendant stood in a position of familial or custodial authority with regard to the alleged victim (meaning an aunt, uncle, boyfriend, girlfriend, father, or mother). Thirdly, the state must show that the defendant committed an act upon the alleged victim in which the sexual organ of the defendant or victim penetrated or had union with the anus, vagina, or mouth of the other party, or that there was penetration of the anus or the vagina by an object.

There are instructions here that we have not seen before. It is not a defense that the alleged victim was willing to engage in acts, which would constitute a sexual battery or consented to engage in such acts. Under a sexual battery defense, one of the defenses will usually involve the issue of consent, but this law presumes that there is no consent. It is not a defense that the complaining witness was willing to engage in acts that would constitute the sexual battery or consented to engage in such acts. This flies in the face of a lot of other areas of the law, but the legislature has made their decision. For example, a 17-year old who could consent to have sex with another 17-year old can nevertheless not consent to have sex with anyone in a position of familial authority, whether it is a non-biological uncle or aunt or a non-biological boyfriend.

On this topic, the issue of someone who is providing child care often comes up. What happens when a 26-year old female watching three kids has consensual sex with a 17-year old? Under the law, if she is in a position of familial or custodial authority and that argument is successfully made, then she would be found guilty of a sexual battery and suffer tremendous punishment and ramifications. One would have to ask whether or not it is believable that a 17-year old who gave consent was really harmed. My answer would be, “Of course not—that’s ludicrous.” Unfortunately, the people who are elected to public office in Tallahassee make the laws. So, this statute has gone beyond what was originally intended. In addition, it puts a lot of people at risk and deprives them of a consent defense that they would have absent that custodial or familial role. Am I saying there is not a “yuck” factor with those kinds of expressions of sexuality, even if it is consensual? No, I am not saying that at all; people can agree or disagree about what they think is appropriate, but my concern is that people will be charged, convicted, and suffer a horrendous punishment when in fact they are all put in the same box of rocks. It is akin to putting a juvenile who stole gum from the dime store in the same prison cell with murderers; it does not make sense. Likewise, that is my concern about these jury selections and this law.

There are no category-one mandatory lesser-included offenses for this charge, and the only two category two offenses are attempt and lewd or lascivious battery under 800.044, which is extremely serious. I should point out that this instruction is really old. It was originally adopted in 1987 and was amended in 1995, 1997, and 2008. So, it has been amended rather frequently and it does not appear at this juncture to be a completely settled law. However, in terms of other areas of the law, it is relatively settled.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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