The Florida Senate

393.135  Sexual misconduct prohibited; reporting required; penalties.--

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

(a)  "Employee" includes any paid staff member, volunteer, or intern of the agency or the department; any person under contract with the agency or the department; and any person providing care or support to a client on behalf of the department or its providers.

(b)  "Sexual activity" means:

1.  Fondling the genital area, groin, inner thighs, buttocks, or breasts of a person.

2.  The 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.

3.  Intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator.

4.  Intentionally masturbating in the presence of another person.

5.  Intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person.

6.  Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.

(c)  "Sexual misconduct" means any sexual activity between an employee and a client, regardless of the consent of the client. The term does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of duty by an employee.

(2)  An employee who engages in sexual misconduct with an individual with a developmental disability who:

(a)  Is in the custody of the department;

(b)  Resides in a residential facility, including any comprehensive transitional education program, developmental services institution, foster care facility, group home facility, intermediate care facility for the developmentally disabled, or residential habilitation center; or

(c)  Receives services from a family care program,

commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 An employee may be found guilty of violating this subsection without having committed the crime of sexual battery.

(3)  The consent of the client to sexual activity is not a defense to prosecution under this section.

(4)  This section does not apply to an employee who:

(a)  Is legally married to the client; or

(b)  Has no reason to believe that the person with whom the employee engaged in sexual misconduct is a client receiving services as described in subsection (2).

(5)  An employee who witnesses sexual misconduct, or who otherwise knows or has reasonable cause to suspect that a person has engaged in sexual misconduct, shall immediately report the incident to the department's central abuse hotline and to the appropriate local law enforcement agency. Such employee shall also prepare, date, and sign an independent report that specifically describes the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The employee shall deliver the report to the supervisor or program director, who is responsible for providing copies to the department's inspector general. The inspector general shall immediately conduct an appropriate administrative investigation, and, if there is probable cause to believe that sexual misconduct has occurred, the inspector general shall notify the state attorney in the circuit in which the incident occurred.

(6)(a)  Any person who is required to make a report under this section and who knowingly or willfully fails to do so, or who knowingly or willfully prevents another person from doing so, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083

(b)  Any person who knowingly or willfully submits inaccurate, incomplete, or untruthful information with respect to a report required under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083

(c)  Any person who knowingly or willfully coerces or threatens any other person with the intent to alter testimony or a written report regarding an incident of sexual misconduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084

(7)  The provisions and penalties set forth in this section are in addition to any other civil, administrative, or criminal action provided by law which may be applied against an employee.

History.--s. 1, ch. 2004-267.