Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 692
       
       
       
       
       
       
                                Ì516686RÎ516686                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/21/2022           .                                
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       The Committee on Criminal Justice (Stewart) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (c) of subsection (2) of section
    6  90.404, Florida Statutes, is amended to read:
    7         90.404 Character evidence; when admissible.—
    8         (2) OTHER CRIMES, WRONGS, OR ACTS.—
    9         (c)1. In a criminal case in which the defendant is charged
   10  with a sexual offense, evidence of the defendant’s commission of
   11  other crimes, wrongs, or acts involving a sexual offense is
   12  admissible and may be considered for its bearing on any matter
   13  to which it is relevant.
   14         2. For the purposes of this paragraph, the term “sexual
   15  offense” means conduct proscribed by s. 787.025(2)(c), s.
   16  787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), s.
   17  794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
   18  former s. 796.035, s. 825.1025(2)(b), s. 827.071, s.
   19  847.0135(5), s. 847.0145, or s. 985.701(1).
   20         3. Substantial similarity is not required for admission of
   21  other crimes, wrongs, or acts when identity is not at issue.
   22         Section 2. Paragraphs (d) and (e) of subsection (1) of
   23  section 365.161, Florida Statutes, are amended to read:
   24         365.161 Prohibition of certain obscene telephone
   25  communications; penalty.—
   26         (1) For purposes of this section, the term:
   27         (d) “Sexual battery” means oral, anal, or female genital
   28  vaginal penetration by, or union with, the sexual organ of
   29  another or the anal or female genital vaginal penetration of
   30  another by any other object.
   31         (e) “Sexual bestiality” means any sexual act between a
   32  person and an animal involving the sex organ of the one and the
   33  mouth, anus, or female genitals vagina of the other.
   34         Section 3. Paragraph (c) of subsection (4) of section
   35  491.0112, Florida Statutes, is amended to read:
   36         491.0112 Sexual misconduct by a psychotherapist;
   37  penalties.—
   38         (4) For the purposes of this section:
   39         (c) “Sexual misconduct” means the oral, anal, or female
   40  genital vaginal penetration of another by, or contact with, the
   41  sexual organ of another or the anal or female genital vaginal
   42  penetration of another by any object.
   43         Section 4. Paragraphs (d) and (e) of subsection (1) of
   44  section 775.0847, Florida Statutes, are amended to read:
   45         775.0847 Possession or promotion of certain images of child
   46  pornography; reclassification.—
   47         (1) For purposes of this section:
   48         (d) “Sexual battery” means oral, anal, or female genital
   49  vaginal penetration by, or union with, the sexual organ of
   50  another or the anal or female genital vaginal penetration of
   51  another by any other object; however, sexual battery does not
   52  include an act done for a bona fide medical purpose.
   53         (e) “Sexual bestiality” means any sexual act, actual or
   54  simulated, between a person and an animal involving the sex
   55  organ of the one and the mouth, anus, or female genitals vagina
   56  of the other.
   57  
   58  For purposes of sentencing under chapter 921 and determining
   59  incentive gain-time eligibility under chapter 944, a felony
   60  offense that is reclassified under this section is ranked one
   61  level above the ranking under s. 921.0022 or s. 921.0023 of the
   62  offense committed.
   63         Section 5. Subsection (21) is added to section 775.15,
   64  Florida Statutes, to read:
   65         775.15 Time limitations; general time limitations;
   66  exceptions.—
   67         (21) In addition to the time periods prescribed in this
   68  section, a prosecution for sexual battery in violation of s.
   69  794.011, where the victim was unaware of the sexual battery due
   70  to the victim being mentally defective, mentally incapacitated,
   71  or physically helpless, may be commenced within 1 year after the
   72  date on which the victim obtains actual knowledge of the offense
   73  or the date on which the offense is reported to law enforcement,
   74  whichever occurs first. Any dissemination of a recording of such
   75  offense before the victim obtains actual knowledge thereof or
   76  before its confiscation by a law enforcement agency does not
   77  affect any provision of this subsection. This subsection applies
   78  to any offense that is not otherwise barred from prosecution on
   79  or before October 1, 2022.
   80         Section 6. Subsections (1), (3), and (8) of section
   81  794.011, Florida Statutes, are amended to read:
   82         794.011 Sexual battery.—
   83         (1) As used in this chapter:
   84         (a) “Consent” means intelligent, knowing, and voluntary
   85  consent and does not include coerced submission. “Consent” shall
   86  not be deemed or construed to mean the failure by the alleged
   87  victim to offer physical resistance to the offender.
   88         (b) “Female genitals” means the labia majora, labia minora,
   89  clitoris, vulva, hymen, and vagina.
   90         (c)(b) “Mentally defective” means a mental disease or
   91  defect which renders a person temporarily or permanently
   92  incapable of appraising the nature of his or her conduct.
   93         (d)(c) “Mentally incapacitated” means temporarily incapable
   94  of appraising or controlling a person’s own conduct due to the
   95  influence of a narcotic, anesthetic, or intoxicating substance
   96  administered without his or her consent or due to any other act
   97  committed upon that person without his or her consent.
   98         (e)(d) “Offender” means a person accused of a sexual
   99  offense in violation of a provision of this chapter.
  100         (f)(e) “Physically helpless” means unconscious, asleep, or
  101  for any other reason physically unable to communicate
  102  unwillingness to an act.
  103         (h)(f) “Retaliation” includes, but is not limited to,
  104  threats of future physical punishment, kidnapping, false
  105  imprisonment or forcible confinement, or extortion.
  106         (i)(g) “Serious personal injury” means great bodily harm or
  107  pain, permanent disability, or permanent disfigurement.
  108         (j)(h) “Sexual battery” means oral, anal, or female genital
  109  vaginal penetration by, or union with, the sexual organ of
  110  another or the anal or female genital vaginal penetration of
  111  another by any other object; however, sexual battery does not
  112  include an act done for a bona fide medical purpose.
  113         (k)(i) “Victim” means a person who has been the object of a
  114  sexual offense.
  115         (g)(j) “Physically incapacitated” means bodily impaired or
  116  handicapped and substantially limited in ability to resist or
  117  flee.
  118         (3) A person who commits sexual battery upon a person 12
  119  years of age or older, without that person’s consent, and in the
  120  process thereof:
  121         (a) Uses or threatens to use a deadly weapon; or
  122         (b) Uses or threatens to use actual physical force likely
  123  to cause serious personal injury or death
  124  
  125  commits a life felony, punishable as provided in s. 775.082, s.
  126  775.083, s. 775.084, or s. 794.0115.
  127         (8) Without regard to the willingness or consent of the
  128  victim, which is not a defense to prosecution under this
  129  subsection, a person who is in a position of familial or
  130  custodial authority to a person less than 18 years of age and
  131  who:
  132         (a) Solicits that person to engage in any act which would
  133  constitute sexual battery as defined in this section under
  134  paragraph (1)(h) commits a felony of the third degree,
  135  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  136         (b) Engages in any act with that person while the person is
  137  12 years of age or older but younger than 18 years of age which
  138  constitutes sexual battery as defined in this section under
  139  paragraph (1)(h) commits a felony of the first degree,
  140  punishable by a term of years not exceeding life or as provided
  141  in s. 775.082, s. 775.083, or s. 775.084.
  142         (c) Engages in any act with that person while the person is
  143  less than 12 years of age which constitutes sexual battery as
  144  defined in this section under paragraph (1)(h), or in an attempt
  145  to commit sexual battery injures the sexual organs of such
  146  person commits a capital or life felony, punishable pursuant to
  147  subsection (2).
  148         Section 7. Subsection (1) of section 794.05, Florida
  149  Statutes, is amended to read:
  150         794.05 Unlawful sexual activity with certain minors.—
  151         (1) A person 24 years of age or older who engages in sexual
  152  activity with a person 16 or 17 years of age commits a felony of
  153  the second degree, punishable as provided in s. 775.082, s.
  154  775.083, or s. 775.084. As used in this section, “sexual
  155  activity” means oral, anal, or female genital vaginal
  156  penetration by, or union with, the sexual organ of another or
  157  the anal or female genital vaginal penetration of another by any
  158  other object; however, sexual activity does not include an act
  159  done for a bona fide medical purpose.
  160         Section 8. Paragraph (d) of subsection (1) of section
  161  796.07, Florida Statutes, is amended to read:
  162         796.07 Prohibiting prostitution and related acts.—
  163         (1) As used in this section:
  164         (d) “Sexual activity” means oral, anal, or female genital
  165  vaginal penetration by, or union with, the sexual organ of
  166  another; anal or female genital vaginal penetration of another
  167  by any other object; or the handling or fondling of the sexual
  168  organ of another for the purpose of masturbation; however, the
  169  term does not include acts done for bona fide medical purposes.
  170         Section 9. Paragraph (a) of subsection (1) of section
  171  800.04, Florida Statutes, is amended to read:
  172         800.04 Lewd or lascivious offenses committed upon or in the
  173  presence of persons less than 16 years of age.—
  174         (1) DEFINITIONS.—As used in this section:
  175         (a) “Sexual activity” means the oral, anal, or female
  176  genital vaginal penetration by, or union with, the sexual organ
  177  of another or the anal or female genital vaginal penetration of
  178  another by any other object; however, sexual activity does not
  179  include an act done for a bona fide medical purpose.
  180         Section 10. Section 800.06, Florida Statutes, is created to
  181  read:
  182         800.06 Lewd or lascivious offenses committed upon persons
  183  16 years of age or older.—
  184         (1) A person who intentionally touches in a lewd or
  185  lascivious manner, and without consent, the breasts, genitals,
  186  genital area, or buttocks, or the clothing covering them, of a
  187  person 16 years of age or older, or forces a person 16 years of
  188  age or older to so touch the perpetrator, commits lewd or
  189  lascivious molestation of a person 16 years of age or older.
  190         (2) A person who violates subsection (1) commits a felony
  191  of the third degree, punishable as provided in s. 775.082, s.
  192  775.083, or s. 775.084.
  193         Section 11. Subsection (1) of section 825.1025, Florida
  194  Statutes, is amended to read:
  195         825.1025 Lewd or lascivious offenses committed upon or in
  196  the presence of an elderly person or disabled person.—
  197         (1) As used in this section, the term “sexual activity”
  198  means the oral, anal, or female genital vaginal penetration by,
  199  or union with, the sexual organ of another or the anal or female
  200  genital vaginal penetration of another by any other object;
  201  however, sexual activity does not include an act done for a bona
  202  fide medical purpose.
  203         Section 12. Paragraphs (f) and (g) of subsection (1) of
  204  section 827.071, Florida Statutes, are amended to read:
  205         827.071 Sexual performance by a child; penalties.—
  206         (1) As used in this section, the following definitions
  207  shall apply:
  208         (f) “Sexual battery” means oral, anal, or female genital
  209  vaginal penetration by, or union with, the sexual organ of
  210  another or the anal or female genital vaginal penetration of
  211  another by any other object; however, “sexual battery” does not
  212  include an act done for a bona fide medical purpose.
  213         (g) “Sexual bestiality” means any sexual act between a
  214  person and an animal involving the sex organ of the one and the
  215  mouth, anus, or female genitals vagina of the other.
  216         Section 13. Subsections (14) and (15) of section 847.001,
  217  Florida Statutes, are amended to read:
  218         847.001 Definitions.—As used in this chapter, the term:
  219         (14) “Sexual battery” means oral, anal, or female genital
  220  vaginal penetration by, or union with, the sexual organ of
  221  another or the anal or female genital vaginal penetration of
  222  another by any other object; however, “sexual battery” does not
  223  include an act done for a bona fide medical purpose.
  224         (15) “Sexual bestiality” means any sexual act, actual or
  225  simulated, between a person and an animal involving the sex
  226  organ of the one and the mouth, anus, or female genitals vagina
  227  of the other.
  228         Section 14. Subsection (1) of section 872.06, Florida
  229  Statutes, is amended to read:
  230         872.06 Abuse of a dead human body; penalty.—
  231         (1) As used in this section, the term “sexual abuse” means:
  232         (a) Anal or female genital vaginal penetration of a dead
  233  human body by the sexual organ of a person or by any other
  234  object;
  235         (b) Contact or union of the penis, female genitals vagina,
  236  or anus of a person with the mouth, penis, female genitals
  237  vagina, or anus of a dead human body; or
  238         (c) Contact or union of a person’s mouth with the penis,
  239  female genitals vagina, or anus of a dead human body.
  240  
  241         Section 15. Paragraph (b) of subsection (3) of section
  242  944.35, Florida Statutes, is amended to read:
  243         944.35 Authorized use of force; malicious battery and
  244  sexual misconduct prohibited; reporting required; penalties.—
  245         (3)(b)1. As used in this paragraph, the term “sexual
  246  misconduct” means the oral, anal, or female genital vaginal
  247  penetration by, or union with, the sexual organ of another or
  248  the anal or female genital vaginal penetration of another by any
  249  other object, but does not include an act done for a bona fide
  250  medical purpose or an internal search conducted in the lawful
  251  performance of the employee’s duty.
  252         2. Any employee of the department or a private correctional
  253  facility as defined in s. 944.710 who engages in sexual
  254  misconduct with an inmate or an offender supervised by the
  255  department in the community, without committing the crime of
  256  sexual battery, commits a felony of the third degree, punishable
  257  as provided in s. 775.082, s. 775.083, or s. 775.084.
  258         3. The consent of the inmate or offender supervised by the
  259  department in the community to any act of sexual misconduct may
  260  not be raised as a defense to a prosecution under this
  261  paragraph.
  262         4. This paragraph does not apply to any employee of the
  263  department or any employee of a private correctional facility
  264  who is legally married to an inmate or an offender supervised by
  265  the department in the community, nor does it apply to any
  266  employee who has no knowledge, and would have no reason to
  267  believe, that the person with whom the employee has engaged in
  268  sexual misconduct is an inmate or an offender under community
  269  supervision of the department.
  270         Section 16. Subsection (2) of section 951.27, Florida
  271  Statutes, is amended to read:
  272         951.27 Blood tests of inmates.—
  273         (2) Except as otherwise provided in this subsection,
  274  serologic blood test results obtained pursuant to subsection (1)
  275  are confidential and exempt from the provisions of s. 119.07(1)
  276  and s. 24(a), Art. I of the State Constitution. However, such
  277  results may be provided to employees or officers of the sheriff
  278  or chief correctional officer who are responsible for the
  279  custody and care of the affected inmate and have a need to know
  280  such information, and as provided in ss. 775.0877 and 960.003.
  281  In addition, upon request of the victim or the victim’s legal
  282  guardian, or the parent or legal guardian of the victim if the
  283  victim is a minor, the results of any HIV test performed on an
  284  inmate who has been arrested for any sexual offense involving
  285  oral, anal, or female genital vaginal penetration by, or union
  286  with, the sexual organ of another, must shall be disclosed to
  287  the victim or the victim’s legal guardian, or to the parent or
  288  legal guardian of the victim if the victim is a minor. In such
  289  cases, the county or municipal detention facility shall furnish
  290  the test results to the Department of Health, which is
  291  responsible for disclosing the results to public health agencies
  292  as provided in s. 775.0877 and to the victim or the victim’s
  293  legal guardian, or the parent or legal guardian of the victim if
  294  the victim is a minor, as provided in s. 960.003(3).
  295         Section 17. Subsection (10) of section 395.0197, Florida
  296  Statutes, is amended to read:
  297         395.0197 Internal risk management program.—
  298         (10) Any witness who witnessed or who possesses actual
  299  knowledge of the act that is the basis of an allegation of
  300  sexual abuse shall:
  301         (a) Notify the local police; and
  302         (b) Notify the hospital risk manager and the administrator.
  303  
  304  For purposes of this subsection, “sexual abuse” means acts of a
  305  sexual nature committed for the sexual gratification of anyone
  306  upon, or in the presence of, a vulnerable adult, without the
  307  vulnerable adult’s informed consent, or a minor. “Sexual abuse”
  308  includes, but is not limited to, the acts defined in s.
  309  794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
  310  vulnerable adult’s or minor’s sexual organs, or the use of the
  311  vulnerable adult or minor to solicit for or engage in
  312  prostitution or sexual performance. “Sexual abuse” does not
  313  include any act intended for a valid medical purpose or any act
  314  which may reasonably be construed to be a normal caregiving
  315  action.
  316         Section 18. Subsection (26) of section 415.102, Florida
  317  Statutes, is amended to read:
  318         415.102 Definitions of terms used in ss. 415.101-415.113.
  319  As used in ss. 415.101-415.113, the term:
  320         (26) “Sexual abuse” means acts of a sexual nature committed
  321  in the presence of a vulnerable adult without that person’s
  322  informed consent. “Sexual abuse” includes, but is not limited
  323  to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
  324  fondling, exposure of a vulnerable adult’s sexual organs, or the
  325  use of a vulnerable adult to solicit for or engage in
  326  prostitution or sexual performance. “Sexual abuse” does not
  327  include any act intended for a valid medical purpose or any act
  328  that may reasonably be construed to be normal caregiving action
  329  or appropriate display of affection.
  330         Section 19. Subsection (1) of section 847.0141, Florida
  331  Statutes, is amended to read:
  332         847.0141 Sexting; prohibited acts; penalties.—
  333         (1) A minor commits the offense of sexting if he or she
  334  knowingly:
  335         (a) Uses a computer, or any other device capable of
  336  electronic data transmission or distribution, to transmit or
  337  distribute to another minor any photograph or video of any
  338  person which depicts nudity, as defined in s. 847.001(9), and is
  339  harmful to minors, as those terms are defined in s. 847.001 s.
  340  847.001(6).
  341         (b) Possesses a photograph or video of any person that was
  342  transmitted or distributed by another minor which depicts
  343  nudity, as defined in s. 847.001(9), and is harmful to minors,
  344  as those terms are defined in s. 847.001 s. 847.001(6). A minor
  345  does not violate this paragraph if all of the following apply:
  346         1. The minor did not solicit the photograph or video.
  347         2. The minor took reasonable steps to report the photograph
  348  or video to the minor’s legal guardian or to a school or law
  349  enforcement official.
  350         3. The minor did not transmit or distribute the photograph
  351  or video to a third party.
  352         Section 20. This act shall take effect October 1, 2022.
  353  
  354  ================= T I T L E  A M E N D M E N T ================
  355  And the title is amended as follows:
  356         Delete everything before the enacting clause
  357  and insert:
  358                        A bill to be entitled                      
  359         An act relating to sexual offenses; amending s.
  360         90.404, F.S.; providing that substantial similarity is
  361         not required for the admissibility of certain evidence
  362         in a criminal case in which the defendant is charged
  363         with a sexual offense; amending s. 365.161, F.S.;
  364         revising the definitions of the terms “sexual battery”
  365         and “sexual bestiality”; amending s. 491.0112, F.S.;
  366         revising the definition of the term “sexual
  367         misconduct”; amending s. 775.0847, F.S.; revising the
  368         definitions of the terms “sexual battery” and “sexual
  369         bestiality”; amending s. 775.15, F.S.; providing a
  370         time limitation for the prosecution of specified
  371         sexual battery offenses; providing applicability;
  372         amending s. 794.011, F.S.; defining the term “female
  373         genitals”; revising the definition of the term “sexual
  374         battery”; providing that a person who threatens to use
  375         actual physical force likely to cause serious bodily
  376         injury or death while committing specified sexual
  377         battery offenses commits a life felony; amending ss.
  378         794.05, 796.07, and 800.04, F.S.; revising the
  379         definition of the term “sexual activity”; creating s.
  380         800.06, F.S.; creating the offense of lewd or
  381         lascivious molestation of a person 16 years of age or
  382         older; providing criminal penalties; amending s.
  383         825.1025, F.S.; revising the definition of the term
  384         “sexual activity”; amending ss. 827.071 and 847.001,
  385         F.S.; revising the definitions of the terms “sexual
  386         battery” and “sexual bestiality”; amending s. 872.06,
  387         F.S.; revising the definition of the term “sexual
  388         abuse”; amending s. 944.35, F.S.; revising the
  389         definition of the term “sexual misconduct”; amending
  390         s. 951.27, F.S.; requiring that HIV test results
  391         performed on inmates arrested for sexual offenses
  392         involving female genital penetration be disclosed
  393         under certain circumstances; amending ss. 395.0197,
  394         415.102, and 847.0141, F.S.; conforming cross
  395         references; providing an effective date.