Senate Bill sb0990

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    Florida Senate - 2005                                   SB 990

    By Senator Smith





    14-782-05

  1                      A bill to be entitled

  2         An act relating to sexual offenses; amending s.

  3         365.161, F.S.; redefining the term "sexual

  4         battery" for purposes of a prohibition on

  5         obscene communications; amending ss. 794.011,

  6         827.071, and 847.001, F.S.; redefining the term

  7         "sexual battery" and defining the terms "sexual

  8         organ" and "union" for purposes of the offense

  9         of sexual battery and provisions prohibiting

10         sexual performance by a child and unlawful

11         activity involving obscenity; amending ss.

12         796.07, 800.04, and 825.1025, F.S.; redefining

13         the term "sexual activity" and defining the

14         terms "sexual organ" and "union" for purposes

15         of prohibitions on prostitution and lewd and

16         lascivious conduct; revising the elements of

17         the offense of lewd and lascivious molestation;

18         reenacting ss. 395.0197(10) and 415.102(24),

19         F.S., relating to internal risk management

20         programs and adult protective services, to

21         incorporate the amendment made to s. 794.011,

22         F.S., in references thereto; providing an

23         effective date.

24  

25  Be It Enacted by the Legislature of the State of Florida:

26  

27         Section 1.  Paragraph (d) of subsection (1) of section

28  365.161, Florida Statutes, is amended to read:

29         365.161  Prohibition of certain obscene telephone

30  communications; penalty.--

31         (1)  For purposes of this section, the term:

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    Florida Senate - 2005                                   SB 990
    14-782-05




 1         (d)  "Sexual battery" means oral, anal, or vaginal

 2  penetration by, or union with, the sexual organ or anus of

 3  another or the anal or vaginal penetration of another by any

 4  other object, or the union of the sexual organ of one person

 5  with the sexual organ of another.

 6         Section 2.  Subsection (1) of section 794.011, Florida

 7  Statutes, is amended to read:

 8         794.011  Sexual battery.--

 9         (1)  As used in this chapter:

10         (a)  "Consent" means intelligent, knowing, and

11  voluntary consent and does not include coerced submission.

12  "Consent" may shall not be deemed or construed to mean the

13  failure by the alleged victim to offer physical resistance to

14  the offender.

15         (b)  "Mentally defective" means a mental disease or

16  defect which renders a person temporarily or permanently

17  incapable of appraising the nature of his or her conduct.

18         (c)  "Mentally incapacitated" means temporarily

19  incapable of appraising or controlling a person's own conduct

20  due to the influence of a narcotic, anesthetic, or

21  intoxicating substance administered without his or her consent

22  or due to any other act committed upon that person without his

23  or her consent.

24         (d)  "Offender" means a person accused of a sexual

25  offense in violation of a provision of this chapter.

26         (e)  "Physically helpless" means unconscious, asleep,

27  or for any other reason physically unable to communicate

28  unwillingness to an act.

29         (f)  "Retaliation" includes, but is not limited to,

30  threats of future physical punishment, kidnapping, false

31  imprisonment or forcible confinement, or extortion.

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    Florida Senate - 2005                                   SB 990
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 1         (g)  "Serious personal injury" means great bodily harm

 2  or pain, permanent disability, or permanent disfigurement.

 3         (h)  "Sexual battery" means oral, anal, or vaginal

 4  penetration by, or union with, the sexual organ or anus of

 5  another or the anal or vaginal penetration of another by any

 6  other object, or the union of the sexual organ of one person

 7  with the sexual organ of another; however, sexual battery does

 8  not include an act done for a bona fide medical purpose.

 9         (i)  "Sexual organ" means, for a male, the penis and

10  scrotum, and for a female, the vagina, vulva, labia, and

11  clitoris.

12         (j)  "Union" means contact.

13         (k)(i)  "Victim" means a person who has been the object

14  of a sexual offense.

15         (l)(j)  "Physically incapacitated" means bodily

16  impaired or handicapped and substantially limited in ability

17  to resist or flee.

18         Section 3.  Subsection (1) of section 796.07, Florida

19  Statutes, is amended to read:

20         796.07  Prohibiting prostitution, etc.; evidence;

21  penalties; definitions.--

22         (1)  As used in this section:

23         (a)  "Prostitution" means the giving or receiving of

24  the body for sexual activity for hire but excludes sexual

25  activity between spouses.

26         (b)  "Lewdness" means any indecent or obscene act.

27         (c)  "Assignation" means the making of any appointment

28  or engagement for prostitution or lewdness, or any act in

29  furtherance of the such appointment or engagement.

30         (d)  "Sexual activity" means oral, anal, or vaginal

31  penetration by, or union with, the sexual organ or anus of

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    Florida Senate - 2005                                   SB 990
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 1  another; anal or vaginal penetration of another by any other

 2  object, or the union of the sexual organ of one person with

 3  the sexual organ of another; or the handling or fondling of

 4  the sexual organ of another for the purpose of masturbation;

 5  however, the term does not include acts done for bona fide

 6  medical purposes.

 7         (e)  "Sexual organ" means for a male, the penis and

 8  scrotum and for a female, the vagina, vulva, labia, and

 9  clitoris.

10         (f)  "Union" means contact.

11         Section 4.  Subsection (1) and paragraph (a) of

12  subsection (5) of section 800.04, Florida Statutes, are

13  amended to read:

14         800.04  Lewd or lascivious offenses committed upon or

15  in the presence of persons less than 16 years of age.--

16         (1)  DEFINITIONS.--As used in this section:

17         (a)  "Sexual activity" means the oral, anal, or vaginal

18  penetration by, or union with, the sexual organ or anus of

19  another or the anal or vaginal penetration of another by any

20  other object, or the union of the sexual organ of one person

21  with the sexual organ of another; however, sexual activity

22  does not include an act done for a bona fide medical purpose.

23         (b)  "Consent" means intelligent, knowing, and

24  voluntary consent, and does not include submission by

25  coercion.

26         (c)  "Coercion" means the use of exploitation, bribes,

27  threats of force, or intimidation to gain cooperation or

28  compliance.

29         (d)  "Sexual organ" means, for a male, the penis and

30  scrotum, and for a female, the vagina, vulva, labia, and

31  clitoris.

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    Florida Senate - 2005                                   SB 990
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 1         (e)  "Union" means contact.

 2         (f)(d)  "Victim" means a person upon whom an offense

 3  described in this section was committed or attempted or a

 4  person who has reported a violation of this section to a law

 5  enforcement officer.

 6         (5)  LEWD OR LASCIVIOUS MOLESTATION.--

 7         (a)  A person who intentionally touches in a lewd or

 8  lascivious manner the breasts, genitals, genital area, anus,

 9  or buttocks, or the clothing covering them, of a person less

10  than 16 years of age, or forces or entices a person under 16

11  years of age to so touch the perpetrator, commits lewd or

12  lascivious molestation.

13         Section 5.  Paragraph (e) of subsection (1) of section

14  827.071, Florida Statutes, is amended, and paragraphs (j) and

15  (k) are added to that subsection, to read:

16         827.071  Sexual performance by a child; penalties.--

17         (1)  As used in this section, the following definitions

18  shall apply:

19         (a)  "Deviate sexual intercourse" means sexual conduct

20  between persons not married to each other consisting of

21  contact between the penis and the anus, the mouth and the

22  penis, or the mouth and the vulva.

23         (b)  "Performance" means any play, motion picture,

24  photograph, or dance or any other visual representation

25  exhibited before an audience.

26         (c)  "Promote" means to procure, manufacture, issue,

27  sell, give, provide, lend, mail, deliver, transfer, transmute,

28  publish, distribute, circulate, disseminate, present, exhibit,

29  or advertise or to offer or agree to do the same.

30         (d)  "Sadomasochistic abuse" means flagellation or

31  torture by or upon a person, or the condition of being

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    Florida Senate - 2005                                   SB 990
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 1  fettered, bound, or otherwise physically restrained, for the

 2  purpose of deriving sexual satisfaction from inflicting harm

 3  on another or receiving such harm oneself.

 4         (e)  "Sexual battery" means oral, anal, or vaginal

 5  penetration by, or union with, the sexual organ or anus of

 6  another or the anal or vaginal penetration of another by any

 7  other object, or the union of the sexual organ of one person

 8  with the sexual organ of another; however, "sexual battery"

 9  does not include an act done for a bona fide medical purpose.

10         (f)  "Sexual bestiality" means any sexual act between a

11  person and an animal involving the sex organ of the one and

12  the mouth, anus, or vagina of the other.

13         (g)  "Sexual conduct" means actual or simulated sexual

14  intercourse, deviate sexual intercourse, sexual bestiality,

15  masturbation, or sadomasochistic abuse; actual lewd exhibition

16  of the genitals; actual physical contact with a person's

17  clothed or unclothed genitals, pubic area, buttocks, or, if

18  such person is a female, breast, with the intent to arouse or

19  gratify the sexual desire of either party; or any act or

20  conduct which constitutes sexual battery or simulates that

21  sexual battery is being or will be committed. A mother's

22  breastfeeding of her baby does not under any circumstance

23  constitute "sexual conduct."

24         (h)  "Sexual performance" means any performance or part

25  thereof which includes sexual conduct by a child of less than

26  18 years of age.

27         (i)  "Simulated" means the explicit depiction of

28  conduct set forth in paragraph (g) which creates the

29  appearance of such conduct and which exhibits any uncovered

30  portion of the breasts, genitals, or buttocks.

31  

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    Florida Senate - 2005                                   SB 990
    14-782-05




 1         (j)  "Sexual organ" means, for a male, the penis and

 2  scrotum, and for a female, the vagina, vulva, labia, and

 3  clitoris.

 4         (k)  "Union" means contact.

 5         Section 6.  Subsection (1) of section 825.1025, Florida

 6  Statutes, is amended to read:

 7         825.1025  Lewd or lascivious offenses committed upon or

 8  in the presence of an elderly person or disabled person.--

 9         (1)  As used in this section, the term:

10         (a)  "Sexual activity" means the oral, anal, or vaginal

11  penetration by, or union with, the sexual organ or anus of

12  another or the anal or vaginal penetration of another by any

13  other object, or the union of the sexual organ of one person

14  with the sexual organ of another; however, sexual activity

15  does not include an act done for a bona fide medical purpose.

16         (b)  "Sexual organ" means, for a male, the penis and

17  scrotum, and for a female, the vagina, vulva, labia, and

18  clitoris.

19         (c)  "Union" means contact.

20         Section 7.  Subsection (14) of section 847.001, Florida

21  Statutes, is amended, and subsections (21) and (22) are added

22  to that section, to read:

23         847.001  Definitions.--As used in this chapter, the

24  term:

25         (14)  "Sexual battery" means oral, anal, or vaginal

26  penetration by, or union with, the sexual organ or anus of

27  another or the anal or vaginal penetration of another by any

28  other object, or the union of the sexual organ of one person

29  with the sexual organ of another; however, "sexual battery"

30  does not include an act done for a bona fide medical purpose.

31  

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    Florida Senate - 2005                                   SB 990
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 1         (21)  "Sexual organ" means, for a male, the penis and

 2  scrotum, and for a female, the vagina, vulva, labia, and

 3  clitoris.

 4         (22)  "Union" means contact.

 5         Section 8.  For the purpose of incorporating the

 6  amendment made by this act to section 794.011, Florida

 7  Statutes, in a reference thereto, subsection (10) of section

 8  395.0197, Florida Statutes, is reenacted to read:

 9         395.0197  Internal risk management program.--

10         (10)  Any witness who witnessed or who possesses actual

11  knowledge of the act that is the basis of an allegation of

12  sexual abuse shall:

13         (a)  Notify the local police; and

14         (b)  Notify the hospital risk manager and the

15  administrator.

16  

17  For purposes of this subsection, "sexual abuse" means acts of

18  a sexual nature committed for the sexual gratification of

19  anyone upon, or in the presence of, a vulnerable adult,

20  without the vulnerable adult's informed consent, or a minor.

21  "Sexual abuse" includes, but is not limited to, the acts

22  defined in s. 794.011(1)(h), fondling, exposure of a

23  vulnerable adult's or minor's sexual organs, or the use of the

24  vulnerable adult or minor to solicit for or engage in

25  prostitution or sexual performance. "Sexual abuse" does not

26  include any act intended for a valid medical purpose or any

27  act which may reasonably be construed to be a normal

28  caregiving action.

29         Section 9.  For the purpose of incorporating the

30  amendment made by this act to section 794.011, Florida

31  

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    Florida Senate - 2005                                   SB 990
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 1  Statutes, in a reference thereto, subsection (24) of section

 2  415.102, Florida Statutes, is reenacted to read:

 3         415.102  Definitions of terms used in ss.

 4  415.101-415.113.--As used in ss. 415.101-415.113, the term:

 5         (24)  "Sexual abuse" means acts of a sexual nature

 6  committed in the presence of a vulnerable adult without that

 7  person's informed consent. "Sexual abuse" includes, but is not

 8  limited to, the acts defined in s. 794.011(1)(h), fondling,

 9  exposure of a vulnerable adult's sexual organs, or the use of

10  a vulnerable adult to solicit for or engage in prostitution or

11  sexual performance.  "Sexual abuse" does not include any act

12  intended for a valid medical purpose or any act that may

13  reasonably be construed to be normal caregiving action or

14  appropriate display of affection.

15         Section 10.  This act shall take effect July 1, 2005.

16  

17            *****************************************

18                          SENATE SUMMARY

19    Redefines the terms "sexual battery" and "sexual
      activity," and defines the terms "sexual organ" and
20    "union" for purposes of various provisions prohibiting
      unlawful sexual acts. (See bill for details.)
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