Rape Charges

Bauer Crider & Parry Podcast

Brad: Alright, you are listening to the FloridaDefense.com podcast. We are speaking to Clearwater Rape Defense Attorney, Mike Kenny. Mike, how are you?

Mike: I'm doing well, how are you?

B: Good good. Today, we're going to be talking about rape charges. I kind of set you up for that one so let's talk about

M: Yeah, I just want to correct you real quick. In the State of Florida, we don't have a crime called rape. Now that isn't to say that rape as people understand it isn't prosecuted, it's just that we call it in the State of Florida, sexual battery. Rape is a term that doesn't exist anywhere really in the Statute. And a sexual battery is a crime that's defined as it basically talks about nonconsensual sex. Sexual battery talks about the either penetration of the sexual organ by either a penis, union with a sexual organ with a mouth to either the vagina or the penis, penetration of the anus - it gets pretty specific because sexual battery is actually involves a sexual organ. It can't be kissing. It can't be groping. But it's actually penetration or mouth in union with the sexual organ. 

B: One thing you'd mentioned in the last podcast - the overview - was just the difference in if somebody was injured by sexual battery in the sentencing, correct?

M: Yes, it's a in that particular section of the Sexual Battery Statute it says that a person 18 years of age or older who commits a sexual battery upon a person 12 years of age and injures a sexual organ on that person, commits a capital felony. Now a capital felony it's a long time ago Florida had certain crimes that were capital felonies obviously capital means the charge is where the sentence is they take your life. Capital punishment for instance. It's not longer a crime where someone loses their life if they're convicted and sentenced but capital felony now for these types of sex crimes is a life felony. 

B: A life in prison?

M: Yes, and there's no parole, no option for parole, no probation, it is for the rest of the person's natural life they will spend in prison if they are convicted and sentenced of that charge. 

B: As a Criminal Defense Attorney, what are some of the signs that you look for in consent is really the biggest thing here, correct?

M: Sure, on these types of charges, consent is the issues, because it's not gonna be one of these strict liability type crimes where the age is the person wasn't able to consent by law. It's one of these issues where two people have sex and I can tell you as a defense lawyer it is not uncommon where one individual might be under the impression that the other is consenting and then the other party to the act may have a different impression. That does comes up and what I look for is kind of what I mentioned in the previous podcast, things about what the relationship was or what the people were doing the moments before the sexual activity occurred. Were they intimate prior to this act allegedly occurring? Were they planning on having sex? Was it everything that happened kind of a normal routine up until a certain point? These things matter because the prosecutor has the sole burden to prove that a crime was committed and specifically they have to prove that sexual battery occurred which means they have to prove penetration, they have to prove that sex basically happened. And then they have to prove that this victim did not consent. Now people can say, "I didn't want to" but experience has shown me that there are times when reasons other than what happened in that immediate moment, folks say that it was a nonconsensual moment. Sometimes that occurs because their misunderstanding about some circumstances that occurred. Sometimes that occurs because there are other influences, outside influences that cause them to change their perspective on what actually occurred. So the key is to know what the dynamic is in the relationship between the victim and the defendant. Did they know each other? What was the relationship like? Had they had sex before? And then, simply look at the facts surrounding the circumstances and what occurred. Obviously, when cases are violent, and people are severely injured, that's obviously a set of factors that I'd be concerned about as a defense lawyer because in general terms people don't typically consent to be injured and those are cases that become a lot more serious and they are punished a lot more seriously. 

5:49 B: Are there - you mentioned the kind of relationship, are there other things that you look at - Communication back and forth via texting or messaging and just kind of see

M: Sure, I've had plenty of cases where there is an allegation of a sexual battery and there is communication subsequent to the event where it's warm messages between both parties. They talk about meeting up later. And those are crucial pieces of evidence because it's what happens after the effect. You know, if this person sexually battered an individual then at least the common sense expectation is that the other person would not want to have anything to do with the other individual. They'd at least be cold and not talking about engaging in another event where they're together and meet up. So those are key. I don't know why people make things up when it happens sometimes, there's really no reason why. My only concern is what the facts and evidence is going to be when the prosecutor is looking at my client. And my job is to look at what those factors are and find out where the weakness is. Those post sex communications oftentimes are crucial in showing what really occurred that night. 

B: In the last podcast, you also mentioned that husband and wife can have nonconsensual and it be considered sexual battery, correct?

M: That's correct. The statute doesn't really take into account anything about the relationship except for if there's a familial type relationship, like a father/son, father/daughter, mother/son, mother/daughter. There's an enhanced penalty for that, but there isn't some defense to sexual battery saying, "hey it's my wife" or "hey, it's my husband."

B: OK. Alright, anything else that you wanted to cover on that?

M: Well, yeah, I think that the sexual battery statutes, a conviction on any type of sexual battery charge is absolutely devastating.  It has a life changing moment for a person, because if a person is convicted of any form of sexual battery, whether it be a second degree all the way up to a life in prison one, they're going to be registered under the Florida Department of Law Enforcement Database as either a sexual offender or a sexual predator predator and that's something that is public record and that will be there forever unless some court decides to change it. That's something that it's very hard to recover from, I would expect. I think that when someone's name is out there on the internet and shows that they've committed a sexual crime of some type, it's very hard for them to find a place to live and it's very hard for them to find a job, and it's certainly hard for them to find an accommodating atmosphere. Whether that's well deserved or not, the part that is so serious is when these things are maybe some crimes that people shouldn't be convicted of is when everything is on the table. Because you have a person's life, you have a person's entire future. Even if they beat the crime, even if they go to trial and we go to trial and is successful the jury is convinced and they're found not guilty, it's still very hard to recover from being arrested for such a serious crime like this. 

B: It really is. Alright, well, we're gonna pick up on the next podcast talking on kind of a similar realm. We've been speaking with Clearwater Defense Attorney, Mike Kenny, with the Bauer Crider & Parry Law Firm in Tampa Florida and the surrounding area, and this is the FloridaDefense.com podcast.