Articles Posted in Sex Crimes

When a defendant in Florida pleads guilty or no contest to a crime, or goes to trial and is convicted by a jury, the next step is for the judge to sentence that defendant. Most sentences for crimes other than minor misdemeanors involve incarceration, probation or both. When a defendant is placed on probation, the judge will normally require the defendant to complete certain conditions while on probation, such as community service, paying restitution, some type of treatment, etc. The judge also has the authority to require more unorthodox conditions when the facts of the case make such requirements appropriate.

For instance, in a recent sexual battery case near Jacksonville, Florida, the defendant was placed on probation for 10 years, and one of the conditions prohibited the defendant from accessing the internet except for work and shopping, but no access to social media sites in any case. The criminal defense lawyer objected to that condition and ultimately appealed the sentence to the appellate court. The criminal defense attorney argued that the condition forbidding internet use violated the defendant’s First Amendment rights. The legal analysis for such a First Amendment issue looks at whether the judge’s condition is narrowly tailored to protect a compelling government interest. In other words, the state or the judge can infringe upon a person’s First Amendment rights, but the particular condition that does so must be designed to protect a significant interest and it must not be overbroad in doing so. The criminal defense lawyer conceded that protecting children from a convicted sex offender was certainly a compelling interest. However, the criminal defense attorney argued that such a broad internet restriction was not narrowly tailored to protect that interest.

The criminal defense lawyer cited a United States Supreme Court case which held that a North Carolina statute was unconstitutional as it created a felony crime for any sex offender to access certain websites, including general social media websites like Facebook and Twitter. The Florida appellate court distinguished that case because the North Carolina case involved a statute that limited sex offenders from accessing the internet even after their sentences were completed. So, even after they had successfully completed probation, those sex offenders were still restricted from accessing the internet and risked committing a new felony crime for a violation. That statute did violate the First Amendment as it was prospective and indefinite.

A twenty seven year old soccer coach has been arrested for interference with the custody of a minor after leaving Jacksonville, Florida with a 17 year old girl.  Mr. Rodriguez’s criminal defense lawyer will surely challenge any allegation that the girl was taken against her will or that there was any nonconsensual sexual contact, but does that matter?  What is the age of consent in the State of Florida?  Is it a crime to have a sexual relationship with a 17 year old?  What if it is consensual?  Let’s break down the law in the State of Florida as it relates to sex offenses between two consensual people, one of whom is younger than 18 years old.

What is the age of consent in the State of Florida for a sexual relationship?

In the State of Florida, the age of consent is eighteen (18) years of age.  This means that anyone younger than 18 years old cannot consent to sexual contact.  It is a crime for any person of any age to have any sexual contact with a minor that is 15 years old or younger.  There are specific requirements for minors that are between 16 years of age and 18 years of age.  So, two minors or one minor and one young adult that engage in willing sexual contact could be in violation of very serious sex offense statutes, which could result in incarceration and being labeled a sex offender.

In Florida, there are certain crimes that require a judge to sentence the defendant to sex offender therapy if the defendant is convicted of the crime, i.e. either enters a plea of guilty or no contest to the charge or is convicted of the charge at trial. Normally, these sex offense crimes are serious felonies like lewd and lascivious molestation of a minor. A conviction for such an offense will likely result in not only sex offender therapy but prison time and sex offender status which mandates that a person goes on the sex offender list for life.

What if a defendant is convicted of a crime that is not one of the enumerated sex offenses under Florida law, but the state or the judge still wants to require the defendant to participate in sex offender therapy while on probation?

In a sex case near Jacksonville, Florida, the defendant was charged with lewd and lascivious molestation and went to trial. A conviction of that charge would have resulted in a sentence of sex offender therapy (likely after a prison sentence) and sex offender status for life. The jury found the defendant not guilty of the lewd and lascivious charge but found the defendant guilty of a lesser included offense. A lesser included offense verdict occurs when the jury finds that there is not sufficient evidence to convict a defendant of the main charge, but the jury finds the defendant’s conduct did rise to the level of a less serious crime. As a result, the jury will find the defendant guilty of the less serious charge. In this case, the less serious charge the jury decided on was battery, which is a misdemeanor. A battery also does not have any sex offense connotations. Molesting a minor will always also be a battery, but a battery usually does not involve sexual molestation.

In Florida, the state must commence prosecution of a suspect within a certain period of time from the date a crime is committed or reported. That period of time is referred to as the statute of limitations. It provides that the state must prosecute a suspect within a certain period of time, and if they do not, the state can never prosecute the suspect for that crime. The idea is that a defendant has a constitutional right to properly defend him/herself, and if the state unreasonably delays in bringing its case against the defendant, it could impair the defendant’s ability to defend the case. Witnesses forget, they move away, they pass away and evidence can be difficult or impossible to obtain as time passes.

There are various factors that can toll a statute of limitations. This means that the time period can be stalled, or the clock can be stopped, if one of these factors exist. For instance, if the defendant leaves the state of Florida and the police cannot find him/her despite their due diligence, this could toll the statute of limitations. Additionally, in some cases, like fraud cases, the victim is not aware that he/she has been defrauded until much later so the statute of limitations may not start until the victim knows or should have known that he/she has been a victim of fraud. In sex cases, collecting DNA can toll the statute of limitations until it can be tested.

In a recent case near Jacksonville, Florida, a fifteen year old girl gave birth, and a thirty year old guy was listed as the father. Since it is illegal for a 30 year old guy to have sex with a 15 year old girl, the police started a lewd and lascivious battery investigation. The father/suspect fled, and he could not be located to be interviewed or arrested. As a result, the police moved the case to the inactive list. Every now and then, they would look at the case in an attempt to find the suspect. The statute of limitations on the lewd and lascivious battery case was three years. More than three years later, the police found the suspect and took a DNA sample from him. They also took a DNA sample of the child and found a match. The suspect was arrested.

In Florida, it is a serious felony crime to travel either within a state or across state lines to meet a minor, or a person believed to be a minor, to engage in unlawful sexual activity. These cases are often the Craigslist cases where an undercover officer will pretend to be a minor on Craigslist or a similar website who is interested in meeting an adult for sex. If a suspect engages that “minor” over the internet, the officer will suggest they meet for sexual activity. When the suspect shows up, he is met by numerous police officers and arrested. At least one of the charges will be traveling to meet a person believed to be a minor for the purpose of illegal sexual activity. This is a very serious felony charge in Florida that normally comes with a significant prison sentence.

These cases can be strong for the state. First, a defendant charged with such a crime is often stigmatized before he gets his day in court. Secondly, as long as the state can prove the defendant is the person with whom the undercover officer was communicating over the internet about the sexual encounter (the fact that the defendant shows up to the meeting at the time discussed online goes a long way towards doing that), it is hard for the defendant to provide a legitimate reason for the meeting. One common defense in these cases is entrapment. Entrapment is also used, but somewhat less common, in drug cases. In these cases, the defendant will say that he initially planned to meet an adult female and thought he was communicating with an adult, but the undercover officer entrapped him by later claiming to be a minor and insisting upon the meeting.

Entrapment is a very difficult defense to make in any criminal case. A police officer being sneaky is not sufficient for entrapment. The defendant must show that the police officer’s fraudulent representation created a substantial risk that an otherwise law abiding citizen would commit an offense. A simple offer to engage in illegal activity is not nearly enough. If the undercover officer gave no indications to the suspect about a minor being involved, set up a meeting and then had a minor show up at the meeting, there would be a good defense to that scenario. However, these police officers are trained to communicate in these stings and at some point during the discussion, the officer will make it clear that he/she is a minor (or at least pretending to be), and if the defendant continues with the discussion and the meeting, the entrapment defense is probably not going to work.

It is certainly not a popular thing to say that the Florida sexual molestation crimes are too severe. However, there is a certain category of sex offender cases that result from overzealous and misguided prosecutions. Consider a situation where an eighteen year old kid, considered an adult under the law, is dating a girl in his school. Maybe they have a class or two together and eat lunch together. They have an open relationship at school and go to the prom together. And then they break up, the girl’s parents get mad, the boy gets arrested and charged with a serious felony sex offense, becomes a convicted felon and has to report as a sex offender for the rest of his life and live by the very strict sex offender rules.

This has happened in two cases we are aware of. In both cases, the boy and girl were high school students going to the same school. They saw each other in class, in the hallways, at lunch and at school functions. They started relationships openly at school, and none of the teachers, the principal nor any other school personnel had any issue with it. However, both relationships ended, as high school relationships typically do, and someone got the police involved after the fact. The police, and then the state, using poor judgment, decided to arrest the boys for lewd and lascivious molestation based on these open high school relationships. The problem was that in both cases, the boys had just turned 18 years old and were about three and a half years older than their younger, high school girlfriends. In both cases, the boys decided to plead guilty to the lewd and lascivious molestation charges because they got an offer of probation that sounded pretty good when they considered that they faced serious prison time if they went to trial and were found guilty.

However, the problem was that both kids were considered to be sex offenders which meant they had to report as sex offenders every year for the rest of their lives. They also had to comply with very strict requirements that are put in place to supervise real sex offenders.

In a recent case south of Jacksonville, Florida, police arrested the defendant for offering to engage in prostitution for money. In this case, an undercover police officer contacted the defendant to engage her for prostitution over the phone. They met in a hotel room where the police had set up a hidden camera. The defendant arrived and agreed to engage in sexual intercourse for $200 as indicated over the phone. The undercover police officer paid her $200. At this point, the crime of offering to engage in prostitution for money was complete, and the police officer should have arrested her. However, the police officer did not arrest her and allowed her to get naked, rub lotion on herself and masturbate in front of him and on camera. After that sequence of events, the police officer arrested her.

The criminal defense lawyer filed a motion to dismiss based on the police officer’s improper conduct. A rarely used and rarely successful strategy for getting a case dropped is to file a motion to dismiss the charge claiming the methods used by the police, or the government, were so unfair and unjust that they violated the defendant’s Due Process rights. In this case, the judge denied the criminal defense attorney’s motion because there was probable cause to arrest the defendant before the improper conduct, and the police officer’s conduct was not so egregious that her Due Process rights were violated.

It is rare for a case to be dismissed based on the outrageously improper conduct of the police. One example where it has occurred was in a case where the police officer manufactured crack cocaine, sold it to the defendant and then charged him with possession of cocaine. Entrapment cases can also result in dropped charges, but again, those cases are extremely rare.

In cases involving illegal sexual contact between an adult and a minor, often brought as sexual battery or lewd or lascivious molestation charges, one issue that often comes up is whether the alleged victim made prior false accusations of a sexual nature against someone else in the past. Anyone charged with a sex crime against a minor might automatically assume that at a trial, the defendant would be able to bring out the fact that the alleged victim previously made similar false accusations against someone else. However, that is not necessarily the case.

In Florida, a witness’s credibility cannot be attacked by showing the victim committed prior acts of misconduct unless those prior acts resulted in certain criminal convictions. In other words, the defense cannot tell the judge or jury that the victim did prior bad things (i.e. make a false sexual abuse allegation) if those prior bad things did not result in a criminal conviction. This issue often comes up in the sexual abuse context. For instance, a very common sexual abuse case will stem from a girl accusing a person, a stepfather perhaps, of sexual molestation. Typically, that girl’s testimony is the most significant, or only, evidence in the state’s case. Her credibility will be a crucial aspect of the case. What if the defendant knew the girl had made a similar prior false accusation against her uncle and had several witnesses to prove it? Can the defendant bring out that evidence at trial? Very likely, no. Unless the girl’s prior false accusation resulted in a conviction against her for false report of a crime or some similar crime, which is highly unlikely, the defendant may not be permitted to bring her prior false accusation out in court.

There is an exception if the defendant can prove the prior false accusation is evidence of bias or a motive to lie in the present case. However, this is more likely to be successful if the prior false accusation was against the same person.

In Florida, if a person is convicted of certain sex crimes involving minors, that person is required by law to become a sex offender which means that he/she must comply with the sex offender registration requirements and other rules for the rest of his/her life. These are very burdensome and distressing requirements that typically do not go away. In a criminal case involving sexual conduct with a minor, everything is negotiable, and it is possible to reach a resolution that eliminates the sex offender label with an adjusted criminal charge. However, this stipulation is often a deal-breaker with prosecutors in all but the most minor cases.

We get a lot of calls from people who have been sentenced as sex offenders and want to try and remove the sex offender status. This is unlikely to happen. However, the Florida legislature did add an exception to the sex offender requirement for the applicable consensual sex crimes involving a minor. Under the law, a person may be eligible to have the sex offender or sexual predator status removed if the person has just one qualifying sex crime (whether he/she was convicted or adjudication of guilt was withheld), the sex offender or predator registration requirement is necessary solely based on that one case, the person was not more than four years older than the victim of the crime and the victim was between the ages of 14 and 17 at the time of the crime.

If the person meets these requirements, he/she can file a motion with the court to remove the requirement that the person register as a sex offender or sexual predator. At that point, it is up to the judge to determine if the requirement will actually be removed. But keep in mind that the court will likely strictly interpret the four year age difference requirement. In a recent case near Jacksonville, Florida, a person met all of the requirements for the sex offender exception above except he was four years and three months older than the victim. Because he was more than four years older than the victim, the court denied his motion to remove the sex offender registration requirement.

In Florida, in a lewd or lascivious molestation or battery case, or a sexual battery case, the credibility of the victim’s testimony is often the most critical factor in the case. In many of these cases, the victims are children who may be less predictable in the things they say and may not appreciate the importance of telling the complete truth in a legal proceeding. In any case, but particularly in lewd or lascivious molestation or battery cases, the criminal defense lawyer’s job is to question the victim to determine the accuracy of the victim’s statement incriminating the defendant.

However, the criminal defense lawyer does not have free reign to ask the victim any questions and bring out bad things the victim may have done in the past. One area that would seem to be critical to determine the credibility of the victim would be prior, similar false accusations. For instance, if the victim is saying the defendant in the present case sexually assaulted her, should the criminal defense attorney have the right to inform the jury that the victim made a similar accusation of sexual assault against the defendant’s brother two years earlier that proved to be false? It would seem like this would be important information for a jury to know about the victim. However, a recent Florida Supreme Court case said that such information would likely be inadmissible at a trial. The general rule is that the criminal defense lawyer may not bring out evidence about the victim’s prior bad acts, including similar but false accusations about another person.

The criminal defense lawyer can attack the credibility of the victim, but he/she is limited in his/her methods. The criminal defense attorney can bring out the fact that the victim has a prior conviction(s) for a felony or a misdemeanor crime that involved dishonesty. For instance, if a person made a similar, false accusation of a sexual assault about someone else and was arrested and convicted for false report of a crime, the criminal defense lawyer would be able to inform the jury that the victim has a prior conviction. However, that is rare when dealing with young victims. The criminal defense lawyer also has the right to bring out any facts that tend to show the victim’s testimony is biased or the victim has a motive to be untruthful. Therefore, if the victim has multiple false accusations against other people or one prior, false accusation against this defendant, that evidence should be admissible at the trial to show the victim is biased towards the defendant or has a motive for lying in this context.

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