The Florida Senate

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

794.011  Sexual battery.

794.0115  Dangerous sexual felony offender; mandatory sentencing.

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.

794.055  Access to services for victims of sexual battery.

794.056  Rape Crisis Program Trust Fund.

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; s. 1, ch. 2002-211.

794.0115  Dangerous sexual felony offender; mandatory sentencing.--

(1)  This section may be cited as the "Dangerous Sexual Felony Offender Act."

(2)  Any person who is convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:

(a)  Caused serious personal injury to the victim as a result of the commission of the offense;

(b)  Used or threatened to use a deadly weapon during the commission of the offense;

(c)  Victimized more than one person during the course of the criminal episode applicable to the offense;

(d)  Committed the offense while under the jurisdiction of a court for a felony offense under the laws of this state, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state; or

(e)  Has previously been convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph,

is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

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

(4)  The offense described in subsection (2) which is being charged must have been committed after the date of commission of the last prior conviction for an offense that is a prior conviction described in paragraph (2)(e).

(5)  It is irrelevant that a factor listed in subsection (2) is an element of an offense described in that subsection. It is also irrelevant that such an offense was reclassified to a higher felony degree under s. 794.023 or any other law.

(6)  Notwithstanding s. 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing under this section must be sentenced to the mandatory term of imprisonment provided under this section. If the mandatory minimum term of imprisonment imposed under this section exceeds the maximum sentence authorized under s. 775.082, s. 775.084, or chapter 921, the mandatory minimum term of imprisonment under this section must be imposed. If the mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed under s. 775.082, s. 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under this section.

(7)  A defendant sentenced to a mandatory minimum term of imprisonment under this section is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, before serving the minimum sentence.

History.--s. 7, ch. 99-188; s. 1, ch. 2002-211; s. 1, ch. 2003-115.

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, a person specified in an order entered by the court having jurisdiction of the alleged offense, or organizations authorized to receive such information made exempt by s. 119.07(3)(f), or to a rape crisis center or sexual assault counselor, as defined in s. 90.5035(1)(b), who will be offering services to the victim.

(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; s. 2, ch. 2002-246.

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.

794.055  Access to services for victims of sexual battery.--

(1)  This section may be cited by the popular name, the "Sexual Battery Victims' Access to Services Act."

(2)  As used in this section, the term:

(a)  "Crisis-intervention services" means advice, counseling, or consultation provided by a sexual battery counselor or trained volunteer to a victim aimed at reducing the level of emotional trauma experienced by the victim.

(b)  "Department" means the Department of Health.

(c)  "Medical intervention" means services necessary for the forensic examination of a victim or medical treatment for injuries of a victim of sexual battery.

(d)  "Rape crisis center" means any public or private agency that offers at least five of the sexual battery recovery services in paragraph (g) to victims of sexual battery and their families.

(e)  "Sexual battery" has the same meaning as that term has in the offenses provided in s. 794.011.

(f)  "Sexual battery counselor" means any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual battery.

(g)  "Sexual battery recovery services" include the following services:

1.  For victims who have reported the offense to law enforcement:

a.  A telephone hotline that is operated 24 hours a day and answered by a sexual battery counselor or trained volunteer, as defined in s. 90.5035.

b.  Information and referral services.

c.  Crisis-intervention services.

d.  Advocacy and support services.

e.  Therapy services.

f.  Service coordination.

g.  Programs to promote community awareness of available services.

h.  Medical intervention.

2.  For victims who have not reported the offense to law enforcement:

a.  A telephone hotline that is operated 24 hours a day and answered by a sexual battery counselor or trained volunteer, as defined in s. 90.5035.

b.  Information and referral services.

c.  Crisis-intervention services.

d.  Advocacy and support services.

e.  Therapy services.

f.  Service coordination.

g.  Programs to promote community awareness of available services.

(h)  "Trained volunteer" means a person who volunteers at a rape crisis center, has completed 30 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, is supervised by members of the staff of the rape crisis center, and is included on a list of volunteers which is maintained by the rape crisis center.

(i)  "Victim" means a person who consults a sexual battery counselor or a trained volunteer for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by a sexual battery.

(3)(a)  The department shall contract with a statewide nonprofit association whose primary purpose is to represent and provide technical assistance to rape crisis centers. This association shall receive 95 percent of the Rape Crisis Program Trust Fund.

(b)  Funds received under s. 938.085 shall be used to provide sexual battery recovery services to victims and their families. Funds shall be distributed by county, based on an allocation formula that takes into account the population and rural characteristics of the county. No more than 15 percent of the funds shall be used for statewide initiatives, including developing service standards and a certification process for rape crisis centers. No more than 5 percent of the funds may be used for administrative costs.

(c)  The department shall ensure that funds allocated under this section are expended in a manner that is consistent with the requirements of this section. The department may require an annual audit of the expenditures and shall provide a report to the Legislature by February 1 of each year.

History.--s. 2, ch. 2003-114.

794.056  Rape Crisis Program Trust Fund.--

(1)  The Rape Crisis Program Trust Fund is created within the Department of Health for the purpose of providing funds for rape crisis centers in this state. Trust fund moneys shall be used exclusively for the purpose of providing services for victims of sexual assault. Funds credited to the trust fund consist of those funds collected as an additional court assessment in each case in which a defendant pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, an offense defined in s. 784.011, s. 784.021, s. 784.03, s. 784.041, s. 784.045, s. 784.048, s. 784.07, s. 784.08, s. 784.081, s. 784.082, s. 784.083, s. 785.085, or s. 794.011.

(2)  The Department of Health shall establish by rule criteria for distributing moneys from the trust fund to rape crisis centers.

(3)  In accordance with s. 19(f)(2), Art. III of the State Constitution, the Rape Crisis Program Trust Fund shall be terminated on July 1, 2007, unless terminated sooner. Before its scheduled termination, the trust fund shall be reviewed as provided in s. 215.3206(1) and (2).

History.--s. 1, ch. 2003-140.