Overview of Sex Crimes

Bauer Crider & Parry Podcast

Brad: Alright, good morning, this is the FloridaDefense.com podcast. We are speaking to Tampa Sex Crimes Lawyer, Mike Kenny with the Bauer, Crider, & Parry Law Firm. Mike, how are you doing?

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

B: Doing well, doing well. Well we've got some interesting topics that we are going to be discussing today and kind of the main one today is just kind of an overview of sex crimes. 

M: That's right. That's right. The sex crimes statutes in Florida, and I say statutes because there is a couple of different sections that you'll kind of find them in, cover a broad base of conduct that comes into play with sex related offenses. And kind of the way I look at it is you kind of have really two sections. You have this sexual battery section which is in Chapter 794 of the Florida Statutes, and that talks about basically consent type cases, cases where consent is actually an issue in the case. Where the person whose sexual activity was taken place with was not a willing participant. There's a whole bunch of sections under that that we focus a lot of time on in our firm as far as defending. And then there's another section, and that section falls under the section where we're talking about really age of the victim. And those are your lewd or lascivious chapters and those talk about mainly the age of the victim. Basically the incapacity of the victim to even consent, even if the victim was a willing participant. So, it's kind of broken down into those two parts, and they matter very much, because obviously they matter as far as what the defense might be in a certain set of circumstances and really what you want to look for as a criminal defense lawyer. I was a prosecutor for 5 1/2 years in Pasco County and I tried very many sex offenses. It's one of the main investigations that I did on a regular basis was involving sex crimes once a week. And I can tell you that those two crimes are kind of handled differently. The consent oriented crimes, there's a lot of focus on how the State might prove that the victim was not a willing participant, that the victim did not consent and there's a lot of evidence that the State might point to. But when you start talking about sex offenses that are involving minor victims like children, consent isn't really even a question or an issue. So, for instance, the Age of Consent, to have basically sex in Florida is 16 so anytime you have a case involving anyone under the age of 16 there could be a 15 year old and somebody older in school, maybe 17 or 18 in school, whether or not the 15 year old alleged that it was without her consent or his consent or not really is an irrelevant question because at the age of 15 they're not really deemed legally able to consent so that doesn't even come up in a jury instruction. All that has to be proven in a case involving someone under the age of 16 is that the act actually occurred. Whereas when you have a case involving two consenting adults, or shouldn't say consenting adults but two adults, two 18 year olds or even two 17 year olds, you have to prove not only did the act happen, but you have to show the lack of consent on the purported victim in a case. 

4:06 B: Mike, I wanted to kind of mention something there. You mentioned you were prosecution in Pasco County, correct? And so you kind of worked the other side of the bench and now you're working the defense side. That's why I like hearing your perspective on these things. What - you mentioned that there was certain evidence the state would look at in a conviction, correct? What were some of the things - and I know you're working as a defense now, but what were some of the things that you were commonly looking for as a prosecutor.

M: Well, I guess it depends on what kind of case you're looking at. If you're looking at a case involving two adults, what you look at is the relationship between the two parties. What was involved leading up into that relationship, whether or not there was any physical force used in the sexual activity that happened. It's not just that a victim would come in and say, "I didn't consent to this" That obviously carries a lot of weight, but as prosecutors we also realize that we have to prove cases, so we have to look for certain evidence that might suggest or might prove beyond a reasonable doubt to the jury that the case is exactly what we say it is. So the dynamic of the relationship - obviously a relationship where there is a couple that knows each other for a long period of time is a little bit different than two strangers and someone alleges that they were sexually battered as they were jogging in a park. Obviously, that's gonna be a case that's gonna have a lot more, I would say, a lot more of an impact on a jury, because there's two people who don't even know each other, never met each other, and the jury might be a little bit more likely to be convinced that this was a situation that was nonconsensual, versus a situation for instance where you have a husband and a wife. A husband and wife have been married for several years. In the State of Florida, they don't talk about the relationship being an issue to consent, all it talks about is that sexual activity happened without the other person's consent. So a husband can be convicted of raping his wife and vice versa in the State of Florida.

B: Oh wow. Ok. Alright, so you kind of basically you kind of put it in two different categories, the consent and then the age and vulnerability, for the most part? 

M: Yes, and I think that you'll find that the statutes go on. Unfortunately there is a number of different ways, especially in this new world that we live in where computers are involved, there's a number of different ways people can exploit other folks. So the Statutes kind of go on and on and on to capture every particular scenario that can be envisioned, but there's the consent type statutes which are basically the sexual battery statutes. Sexual Battery in Florida is basically what people might understand as rape. We don't have a rape charge, it's called sexual battery. And those statutes talk about a person having sex with another person and that person either didn't consent, that's basically your standard - when I say standard, that's your second degree felony. A second degree felony is punishable by up to 15 years in prison - that's the maximum you can get for that. And then you kind of have different levels of a sexual battery. So one is just basically without consent. Two people have sex, one of the persons was not a consenting party to that, that's a sexual battery. The next step is whether or not a person has sexual battery or is alleged to have committed a sexual battery and then the ideas that the person used force or threatened to use force. In that scenario, it rises up a level and becomes a first degree felony and then there's  another level beyond that which talks about whether the person was actually physically injured, or the sexual organs of the person were physically injured and that's a felony that can be punishable by life, even for a first time offense. So, you start off at the question of consent and then there's enhancements to that type of crime which brings the punishment up in levels of severity. 

8:34 B: One thing I wanted to ask on the age and vulnerability area, and you mentioned just kind of if they're coherent enough to consent or not consent. Is that something that you always look at is whether alcohol was involved, drug use, that type stuff?

M: Well, sure that's - that believe it or not can fall into just a regular sexual battery scenario. The as far as the alcohol involvement anyway or any of that. Consent is the question. So anytime a person alleges that he or she did not consent to the sexual endeavor, the issue is whether or not they were of sound mind to give consent or whether they were actually forced to do it. Whether they were threatened with force to do it. So a person can be absolutely under the influence and so inebriated that they don't really recall the events that took place and there's an argument that that was specifically an endeavor a sexual experience that did not involve consent, did not have consent from one of the parties. There have been plenty of cases that I had as a prosecutor where there are individuals at a party and one of the people passes out and when that one person passes out, the other person still engaged in sexual intercourse, and that would qualify as a sexual battery. The Statute actually specifically talks about cases where obviously we've heard the term "ruffy" before. The Statute specifically talks about a sexual battery would be a situation where a person engaged in sexual activity with another person when the act - the person committing the act - knew either by himself or knew that someone else administered an intoxicating drug or something that would sedate the other individual. And that comes up, has come up a lot in prosecution. 

B: Alright, anything else, Mike? I know we've got a few more things we're going to cover in the next few podcasts, but 

M: Sure, yeah the interesting thing about the you know if you want to talk about the cases where you have people being drugged, the interesting thing is the most common date rape type drugs that have been used, are used because they are very quick to be basically not necessarily effective or work but your body processes them very quickly so within 24 hrs whatever that person was administered isn't going to be there. So a lot of times the people don't even realize what happened - the people being the victims - don't even realize what happened until later. Don't even, they're curious as to how they found themselves in such a situation. And by two or three days later, it's too late to even test for the presence of the intoxicating substance. But the biggest, I think the most important issue to look at when you're looking at these two cases, is really the age is going to determine how the case is prosecuted, because if the victim is under the age of consent, meaning the victim is under 15, the prosecutor really I wouldn't even expect him or her to even concern himself with the consent aspect, meaning to prove that it was a nonconsensual endeavor because it doesn't matter. It's not a relevant question. It doesn't tend to prove of disprove anything that would be at issue in the trial. So all that has to be proven is that the act occurred and that's a lot - I don't want to say easier, but it's one less thing that the prosecutor has to do versus a case where you have two adults who have met the age of consent in Florida. 

B: Well, I'm gonna stop you there Mike, and we'll pick up in the next podcast. Alright, you've been listening to Mike Kenny, Tampa Sex Crimes Lawyer at Bauer Crider & Parry and you've been listening to the FloridaDefense.com podcast.