The Florida Senate

794.005  Legislative findings and intent as to basic charge of sexual battery.

794.011  Sexual battery.

794.0115  Repeat sexual batterers; definition; procedure; enhanced penalties.

794.02  Common-law presumption relating to age abolished.

794.021  Ignorance or belief as to victim's age no defense.

794.022  Rules of evidence.

794.023  Sexual battery by multiple perpetrators; reclassification of offenses.

794.0235  Administration of medroxyprogesterone acetate (MPA) to persons convicted of sexual battery.

794.024  Unlawful to disclose identifying information.

794.026  Civil right of action for communicating the identity of a sexual crime victim.

794.027  Duty to report sexual battery; penalties.

794.03  Unlawful to publish or broadcast information identifying sexual offense victim.

794.05  Unlawful sexual activity with certain minors.

794.005  Legislative findings and intent as to basic charge of sexual battery.--The Legislature finds that the least serious sexual battery offense, which is provided in s. 794.011(5), was intended, and remains intended, to serve as the basic charge of sexual battery and to be necessarily included in the offenses charged under subsections (3) and (4), within the meaning of s. 924.34; and that it was never intended that the sexual battery offense described in s. 794.011(5) require any force or violence beyond the force and violence that is inherent in the accomplishment of "penetration" or "union."

History.--s. 2, ch. 92-135.

794.011  Sexual battery.--

(1)  As used in this chapter:

(a)  "Consent" means intelligent, knowing, and voluntary consent and does not include coerced submission. "Consent" shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.

(b)  "Mentally defective" means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.

(c)  "Mentally incapacitated" means temporarily incapable of appraising or controlling a person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.

(d)  "Offender" means a person accused of a sexual offense in violation of a provision of this chapter.

(e)  "Physically helpless" means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.

(f)  "Retaliation" includes, but is not limited to, threats of future physical punishment, kidnapping, false imprisonment or forcible confinement, or extortion.

(g)  "Serious personal injury" means great bodily harm or pain, permanent disability, or permanent disfigurement.

(h)  "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

(i)  "Victim" means a person who has been the object of a sexual offense.

(j)  "Physically incapacitated" means bodily impaired or handicapped and substantially limited in ability to resist or flee.

(2)(a)  A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141.

(b)  A person less than 18 years of age who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(3)  A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(4)  A person who commits sexual battery upon a person 12 years of age or older without that person's consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115:

(a)  When the victim is physically helpless to resist.

(b)  When the offender coerces 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.

(c)  When the offender coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim reasonably believes that the offender has the ability to execute the threat in the future.

(d)  When 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 which mentally or physically incapacitates the victim.

(e)  When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact.

(f)  When the victim is physically incapacitated.

(g)  When the offender is a law enforcement officer, correctional officer, or correctional probation officer as defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who is certified under the provisions of s. 943.1395 or is an elected official exempt from such certification by virtue of s. 943.253, or any other person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting, and such officer, official, or person is acting in such a manner as to lead the victim to reasonably believe that the offender is in a position of control or authority as an agent or employee of government.

(5)  A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.

(6)  The offense described in subsection (5) is included in any sexual battery offense charged under subsection (3) or subsection (4).

(7)  A person who is convicted of committing a sexual battery on or after October 1, 1992, is not eligible for basic gain-time under s. 944.275. This subsection may be cited as the "Junny Rios-Martinez, Jr. Act of 1992."

(8)  Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

(a)  Solicits that person to engage in any act which would constitute sexual battery under paragraph (1)(h) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)  Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)  Engages in any act with that person while the person is less than 12 years of age which constitutes sexual battery under paragraph (1)(h), or in an attempt to commit sexual battery injures the sexual organs of such person commits a capital or life felony, punishable pursuant to subsection (2).

(9)  For prosecution under paragraph (4)(g), acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent, and it is not a defense that the perpetrator was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.

(10)  Any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 2, ch. 74-121; s. 17, ch. 75-298; s. 1, ch. 84-86; s. 1, ch. 89-216; s. 3, ch. 92-135; s. 1, ch. 92-310; s. 3, ch. 93-156; s. 2, ch. 95-348; s. 99, ch. 99-3; s. 8, ch. 99-188.

794.0115  Repeat sexual batterers; definition; procedure; enhanced penalties.--

(1)  As used in this act, "repeat sexual batterer" means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in subsection (3), if it finds that:

(a)  The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:

1.  Any felony offense in violation of s. 794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy to commit the felony offense.

2.  A qualified offense as defined in s. 775.084(1)(e), if the elements of the qualified offense are substantially similar to the elements of a felony offense in violation of s. 794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy to commit the felony offense.

(b)  The felony for which the defendant is to be sentenced is one of the felonies enumerated in subparagraph (a)1. or subparagraph (a)2. and was committed:

1.  While the defendant was serving a prison sentence or other sentence imposed as a result of a prior conviction for any offense enumerated in subparagraph (a)1. or subparagraph (a)2.; or

2.  Within 10 years after the date of the conviction of the last prior offense enumerated in subparagraph (a)1. or subparagraph (a)2., or within 10 years after the defendant's release from a prison sentence, probation, community control, or other sentence imposed as a result of a prior conviction for any offense enumerated in subparagraph (a)1. or subparagraph (a)2., whichever is later.

(c)  The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this subsection.

(d)  A conviction of a crime necessary to the operation of this subsection has not been set aside in any postconviction proceeding.

(2)  In a separate proceeding, the court shall determine if the defendant is a repeat sexual batterer. The procedure shall be as follows:

(a)  The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a repeat sexual batterer.

(b)  Written notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.

(c)  Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.

(d)  Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

(e)  For the purpose of identification of a repeat sexual batterer, the court shall fingerprint the defendant pursuant to s. 921.241.

(f)  For an offense committed on or after the effective date of this act, if the state attorney pursues a repeat sexual batterer sanction against the defendant and the court, in a separate proceeding pursuant to this subsection, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a repeat sexual batterer, subject to imprisonment pursuant to this section as provided in subsection (3).

(3)(a)  The court, in conformity with the procedure established in subsection (2), must sentence the repeat sexual batterer to a mandatory minimum term of 10 years' imprisonment.

(b)  Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.

History.--s. 7, ch. 99-188.

794.02  Common-law presumption relating to age abolished.--The common-law rule "that a boy under 14 years of age is conclusively presumed to be incapable of committing the crime of rape" shall not be in force in this state.

History.--s. 1, ch. 4964, 1901; GS 3222; RGS 5052; CGL 7154; s. 2, ch. 74-121.

794.021  Ignorance or belief as to victim's age no defense.--When, in this chapter, the criminality of conduct depends upon the victim's being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.

History.--s. 2, ch. 74-121.

794.022  Rules of evidence.--

(1)  The testimony of the victim need not be corroborated in a prosecution under s. 794.011.

(2)  Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

(3)  Notwithstanding any other provision of law, reputation evidence relating to a victim's prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery shall not be admitted into evidence in a prosecution under s. 794.011.

(4)  When consent of the victim is a defense to prosecution under s. 794.011, evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly.

(5)  An offender's use of a prophylactic device, or a victim's request that an offender use a prophylactic device, is not, by itself, relevant to either the issue of whether or not the offense was committed or the issue of whether or not the victim consented.

History.--s. 2, ch. 74-121; s. 237, ch. 77-104; s. 1, ch. 83-258; s. 1, ch. 90-40; s. 5, ch. 90-174; s. 25, ch. 93-156; s. 1, ch. 94-80.

794.023  Sexual battery by multiple perpetrators; reclassification of offenses.--

(1)  The Legislature finds that an act of sexual battery, when committed by more than one person, presents a great danger to the public and is extremely offensive to civilized society. It is therefore the intent of the Legislature to reclassify offenses for acts of sexual battery committed by more than one person.

(2)  A violation of s. 794.011 shall be reclassified as provided in this subsection if it is charged and proven by the prosecution that, during the same criminal transaction or episode, more than one person committed an act of sexual battery on the same victim.

(a)  A felony of the second degree is reclassified to a felony of the first degree.

(b)  A felony of the first degree is reclassified to a life felony.

This subsection does not apply to life felonies or capital felonies. For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

History.--s. 4, ch. 84-86; s. 17, ch. 93-156; s. 24, ch. 95-184; s. 20, ch. 97-194; s. 2, ch. 99-172.

794.0235  Administration of medroxyprogesterone acetate (MPA) to persons convicted of sexual battery.--

(1)  Notwithstanding any other law, the court:

(a)  May sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011.

(b)  Shall sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011 and the defendant has a prior conviction of sexual battery under s. 794.011.

If the court sentences a defendant to be treated with medroxyprogesterone acetate (MPA), the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under s. 794.011. However, in lieu of treatment with medroxyprogesterone acetate (MPA), the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant's intelligent, knowing, and voluntary consent to physical castration as an alternative penalty.

(2)(a)  An order of the court sentencing a defendant to medroxyprogesterone acetate (MPA) treatment under subsection (1), shall be contingent upon a determination by a court appointed medical expert, that the defendant is an appropriate candidate for treatment. Such determination is to be made not later than 60 days from the imposition of sentence. Notwithstanding the statutory maximum periods of incarceration as provided in s. 775.082, an order of the court sentencing a defendant to medroxyprogesterone acetate (MPA) treatment shall specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.

(b)  In all cases involving defendants sentenced to a period of incarceration, the administration of treatment with medroxyprogesterone acetate (MPA) shall commence not later than one week prior to the defendant's release from prison or other institution.

(3)  The Department of Corrections shall provide the services necessary to administer medroxyprogesterone acetate (MPA) treatment. Nothing contained in this section shall be construed to require the continued administration of medroxyprogesterone acetate (MPA) treatment when it is not medically appropriate.

(4)  As used in this section, the term "prior conviction" means a conviction for which sentence was imposed separately prior to the imposition of the sentence for the current offense and which was sentenced separately from any other conviction that is to be counted as a prior conviction under this section.

(5)  If a defendant whom the court has sentenced to be treated with medroxyprogesterone acetate (MPA) fails or refuses to:

(a)  Appear as required by the Department of Corrections for purposes of administering the medroxyprogesterone acetate (MPA); or

(b)  Allow the administration of medroxyprogesterone acetate (MPA),

the defendant is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 1, ch. 97-184.

794.024  Unlawful to disclose identifying information.--

(1)  A public employee or officer who has access to the photograph, name, or address of a person who is alleged to be the victim of an offense described in this chapter, chapter 800, s. 827.03, s. 827.04, or s. 827.071 may not willfully and knowingly disclose it to a person who is not assisting in the investigation or prosecution of the alleged offense or to any person other than the defendant, the defendant's attorney, or a person specified in an order entered by the court having jurisdiction of the alleged offense, or to organizations authorized to receive such information pursuant to s. 119.07(3)(f).

(2)  A violation of subsection (1) constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 6, ch. 95-207; s. 100, ch. 99-3.

794.026  Civil right of action for communicating the identity of a sexual crime victim.--

(1)  An entity or individual who communicates to others, prior to open judicial proceedings, the name, address, or other specific identifying information concerning the victim of any sexual offense under this chapter or chapter 800 shall be liable to that victim for all damages reasonably necessary to compensate the victim for any injuries suffered as a result of such communication.

(2)  The victim shall not be able to maintain a cause of action unless he or she is able to show that such communication was intentional and was done with reckless disregard for the highly offensive nature of the publication.

History.--s. 7, ch. 95-207.

794.027  Duty to report sexual battery; penalties.--A person who observes the commission of the crime of sexual battery and who:

(1)  Has reasonable grounds to believe that he or she has observed the commission of a sexual battery;

(2)  Has the present ability to seek assistance for the victim or victims by immediately reporting such offense to a law enforcement officer;

(3)  Fails to seek such assistance;

(4)  Would not be exposed to any threat of physical violence for seeking such assistance;

(5)  Is not the husband, wife, parent, grandparent, child, grandchild, brother, or sister of the offender or victim, by consanguinity or affinity; and

(6)  Is not the victim of such sexual battery

is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 3, ch. 84-86; s. 1226, ch. 97-102.

794.03  Unlawful to publish or broadcast information identifying sexual offense victim.--No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. Such identifying information is confidential and exempt from the provisions of s. 119.07(1). An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 1, ch. 6226, 1911; RGS 5053; CGL 7155; s. 2, ch. 74-121; s. 16, ch. 75-298; s. 180, ch. 91-224; s. 1, ch. 94-88; s. 430, ch. 96-406.

794.05  Unlawful sexual activity with certain minors.--

(1)  A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, "sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.

(2)  The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.

(3)  The victim's prior sexual conduct is not a relevant issue in a prosecution under this section.

(4)  If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.

History.--RS 2598; s. 1, ch. 4965, 1901; GS 3521; s. 1, ch. 6974, 1915; s. 1, ch. 7732, 1918; RGS 5409; s. 1, ch. 8596, 1921; CGL 7552; s. 1, ch. 61-109; s. 759, ch. 71-136; s. 1, ch. 96-409.