Being charged with a sexually related crime can be daunting. Florida’s laws regulating sexual offenders and predators apply primarily to their reporting and registration requirements. These are consequences that are considered to be collateral to any plea agreement or sentence; in other words, they are additional hardships for offenders to face after their sentence of jail, prison, or probation is complete. There are restrictions on where an offender can live and they must report any and every change in address to the government.
Failure to register can result in new additional charges!
These consequences can be avoided in certain cases! Talk to an attorney experienced in sex crimes. Amanda Sampaio has over 8 years trying cases and defending those accused of crimes.
A sexual offender is a person who has been convicted of committing, attempting, soliciting, or conspiring to commit any of the offenses listed in the Florida Statutes. The designation also applies to those convicted of similar offenses in other states in certain cases, and those designated as a sexual predator or sexually violent predator in another state or jurisdiction.
Note: Sexual offender registration is considered a collateral consequence of a plea and therefore failure to inform a defendant of that requirement prior to the plea does not render the plea involuntary.
When a person is convicted of certain sexual crimes, the person must be designated as a “sexual predator” under Florida Statute §775.21(5). They will also be required to register with local law enforcement as a sexual predator. There is a provision for public notification under Florida Statute§775.21(7).
These requirements are mandatory! This means the courts can not make exceptions and they can’t be plea bargained away.
Involuntary Civil Commitment Under The Jimmy Ryce Act
The Jimmy Ryce Act is intended to provide a civil commitment procedure for the long term treatment of sexually violent predators. The Act usually comes into play after a defendant has served their prison sentence. The treatment the Act is referring to is meant to address the defendant’s mental abnormality or personality. The Department of Children and Families administers the “treatment” and the defendant will not be released until the person is deemed safe to return to the community. The Act addresses the situation concerning a small but extremely dangerous number of sexually violent predators.
The way it works is that when it appears someone meets this criteria, the State Attorney will be notified of the upcoming release of the inmate, (at least 180 days prior to release). The State Attorney may then file a petition with the circuit court, thereby activating the law so to speak. The court will then make a decision as to whether or not probable causes exists that the person is in fact a sexually violent predator. This is a non-adversarial determination, which means the person does not get a chance to refute or have a hearing. The person will then be transported to a secure facility for a professional evaluation. Within 30 days, the court shall conduct a trial by 6 member jury to determine whether the person is a sexually violent offender.
The person does have a right to counsel (an attorney) at this hearing!
To civilly commit someone, the jury must find “clear and convincing evidence” that the person (1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure place for long-term control, care, and treatment. Florida Statute § 394.912(10). The person may be held until they are determined to be safe at large and they will have an annual evaluation of his or her mental condition.
Note: This type of involuntary commitment is NOT considered to be continued punishment for the criminal offense and thus it does not violate an offender’s due process right to specific performance of a plea agreement under the current law. State v. McFarland, 844 So.2d 957 (Fla. 4d. DCA 2003).
Lewd or Lascivious Offenses
Battery includes unlawful sexual activity with a minor and consent is not a defense because a minor can not legally consent. Molestation is one step below battery and includes touching the sexual organs of a minor who is under age 16 in a lewd and lascivious manner. Conduct is the same as molestation except that it applies to areas other than the sexual organs of the minor under age 16. Exhibition includes sexual acts such as masturbating or exposing genitals in a lewd or lascivious manner in the presence of a victim who is under age 16.
Sexual Battery (Rape)
Florida Law defines sexual battery, otherwise known as rape, as any non-consensual sexual activity. Consent means “intelligent, knowing, and voluntary consent” and does not include coerced submission. The lack of physical resistance by the alleged victim does not equal consent. Evidence of the victim’s mental incapacity can be used in determining whether consent was intelligent, knowing, and voluntary. The victim’s lack of chastity is not a defense to sexual battery. See also Rape Shield.
Unlawful Sexual Contact with Minors
Whenever the victim is a minor, penalties are severe. Consent is not a defense when the victim is a minor. In addition, ignorance of the victim’s age is not a defense. Even if the victim misrepresents his or her age, it is not a defense.
Penalties for Sex Crimes
The penalties in sex crimes cases vary depending on the age of the victim and the age of the offender. When the victim is under 12 years of age, the penalties increase severely. For example, the crime of Capital Sexual Battery occurs when there is sexual penetration or union (contact is enough for union) where the victim is younger than 12 and the offender is 18 or older. This crime is punishable by life in prison.
Rape Shield is meant to protect victims by limiting the defendant’s ability to introduce evidence about the victim’s prior consensual sexual encounters. There are certain exceptions to this rule and a skilled attorney will know how and when the rule is being used correctly.
Exposure of Sexual Organs (indecent exposure) Fla. Stat. § 800.03
First degree Misdemeanor
Occur when a person exposed or exhibited his or her sexual organs or was naked and was in a public place, private premises of another, or was so close to the private premises of another that they could be seen. It must be intentional and vulgar, indecent, lewd, or lascivious in the manner it was done. Mere nudity alone is not sufficient for a conviction. A mother breastfeeding a baby does not under any circumstances constitute this crime.
Other Common Sexual Offenses
- Failure to Register as a Sex Offender / Predator
- Solicitation of a Child under 18 to engage in an act of sexual battery
- Traveling to meet a minor
- Unlawful Residency by a Sex Offender
- Sexual Misconduct by a Psychotherapist
- Sexual Misconduct between a detention Fa
- cility Employee and Inmates
- Child Pornography
- Sexting or Transmission of material harmful to minor by electronic device
There is hope! You may think that is is impossible to defend against such a horrible accusation but there are many ways to defend against these crimes. Each case is unique and there are occasions when people lie, misinterpret the incident, or have an incorrect memory of what happened. Remember that the State has the burden to prove all the elements of the offense beyond a reasonable doubt. As a board certified specialist in criminal trial law, I have tried several sex crimes cases and I know what defenses work. Not all cases are winners and when the evidence is insurmountable, mitigation may be the way to go.