Sex Crimes

In Florida, sex crimes carry penalties often more harsh than those for homicide. A person accused of a sex crime will certainly benefit from having an attorney who is experienced and comfortable reviewing the evidence, particularly when a child has made the complaint. It is also important to hire a lawyer who is familiar with the particular types of evidence involved in the case so they are prepared to understand and challenge the evidence to provide the best possible outcome for their client.

Penalties for Common Sex Crimes in Florida

• Unlawful Sexual Activity with a Minor (Statutory Rape) in Florida
  • What is it?
    • Where a person 24 years or older has sex with a 16 or 17 year old
    • Includes all types of sexual contact, not just intercourse
    • Does not apply to 16 or 17 year olds who have been legally emancipated
    • Prosecutor can add multiple charges or “counts” for each instance of sexual contact, even from the same day
  • What is the penalty?
    • Maximum 15 years in prison, per count charged
• Sexual Battery (Rape)
  • What is it?
    • Oral, anal, or vaginal penetration or union with sexual organs of a person 12 years or older 
    • Includes contact over a person's clothing
    • Includes contact made using an object other than the hands 
  • What is the penalty?
  • Penalties vary widely, depending on the facts of the case.
• Failure of Sex Offender to Properly Register
  • What is it?
    • Failing to abide by the very strict requirements of a sex offender or sexual predator to periodically register with the Florida Department of Law Enforcement
    • These offenses are treated very harshly by prosecutors under most circumstances
  • What is the penalty?
    • Minimum 21 months to 5 years in prison
    • However, since the offender always has a prior conviction for a sex crime, the minimum sentence will always be more than 21 months when prior convictions are accounted for—it can often be more than the maximum 5 years, because Florida's sentencing laws permits an offender's sentencing score to put them over the “maximum” for the current offense. For instance, a person's minimum sentence may be 6 years rather than 5 years, based on prior convictions.

Defending Against Sex Crimes

Many sex crimes are based entirely on the testimony of an alleged victim, meaning the case against an offender rests solely an on an accusation. In such cases, witness credibility can be challenged to provide a chance of successful trial outcome or plea negotiation. However, it is very common for an accused person to make incriminating statements when speaking with police.  Even if such statements do not amount to a full confession, if the accused makes other statements during their police interview that can be proven false, this can make the accused person appear dishonest and therefore guilty.  An experienced attorney should evaluate such statements for any legal issues which may permit suppression or exclusion of this incriminating evidence in court.  DNA is another common type of evidence, which at first blush can seem very reliable and, thus, damning evidence against a person accused. However, DNA evidence is not always as strong as it appears to be and an attorney experienced in evaluating such evidence will prepare to critically analyze the prosecutor's DNA expert and search for a strong DNA expert to work for the defense.

Sex Crimes Against Children in Florida

Commonly charged sex crimes against children include:

• Battery on a child
  • lllllWhat is it?
    • Causing a child to come into contact with blood, semen, urine, or feces
  • What is the penalty?
    • Maximum 5 years on prison
• Lewd or Lascivious Battery
  • What is it?
    • Sexual activity with a person between 12 and 16 years old
  • What is the penalty?
    • Minimum 21 months to Maximum 15 years in prison
• Lewd or Lascivious Molestation
  • What is it?
    • Touching a person age 12 but under age 16 in a sexual manner on the breasts, genitals, buttocks, or the clothing covering those areas
  • What is the penalty?
    • Offender under age 18, victim under age 12 OR Offender over age 18, victim over age 12 but under age 16
      • Maximum 15 years in prison
    • Offender under age 18, victim over age 12 but under age 16
      • Maximum 5 years in prison
    • Offender over age 18, victim under age 12
      • Either (1) Life in prison, or (2) Minimum 25 years in prison followed by lifetime probation or community control
•  Capital Sexual Battery
  • What is it?
    • Oral, anal, or vaginal penetration or union with sexual organs of a child under age 12, including by an object
  • What is the penalty?
    • Offender over age 18
      • Mandatory life in prison
    • Offender under age 18
      • Maximum 30 years in prison

These penalties are per charge—many cases involve allegations of multiple counts, which increase the minimum and maximum penalties faced by a person accused.  Fines can be assessed for any felony under Florida law, although they are not always enforced.  Also, an offender's criminal history, as well as factors such as whether sexual penetration occurred, will increase the minimum sentence for any felony in Florida.

Crimes Involving Children

Evidence offered against the accused in such cases often includes testimony by child witnesses, DNA evidence, expert testimony by medical doctors who examined the child, and incriminating statements by the accused.  A criminal defense attorney with the appropriate level of experience will be skilled in communicating with child witnesses in deposition and on cross examination, well versed in the medical language used by a medical expert in sexual assault, familiar with ways to evaluate and challenge DNA evidence, and experienced in defending against false or coerced confessions by a person accused.   It is important to explore all legal issues regarding the possible suppression or exclusion of evidence against the accused.  The right attorney will do their best to highlight issues of child witness credibility, failings in the collection or preservation of medical and DNA evidence, and limitations of incriminating statements to provide the best possible chance of winning a trial or successfully negotiating a favorable plea for their client.

I have several years experience focusing primarily on the defense of sex crimes, including pretrial motions to suppress evidence as well as jury trials.

Sexual Performance of a Child (Child Pornography)

Possessing or viewing a photo or video of a child performing a sexual act is the most common type of arrest for this offense. More and more, police are making arrests based on the sharing of these images through platforms like Facebook and Snapchat.

It is also illegal to create a video or photo of a child performing a sexual act. Possession is a much more commonly-charged crime and can include clicking on an image on the internet which is then saved in one way or another on a person's internet-capable device, regardless of whether the person intended to download or save the file. Attempting to delete such files does not remove evidence of the possessing or viewing. Law enforcement agencies have forensic experts whose jobs are devoted entirely to the detection of this type of computer evidence.

Child pornography charges in Florida are punished with extreme harshness compared to other felonies of the same degree. One charge, or “count,” carries a maximum penalty of five years in prison. However, a person is rarely charged with just one count. This is because a separate count can be charged per photo or video found in a person's possession. Although these charges are only third-degree felonies, the minimum sentence can add up quickly.

Enhanced Penalties in Some Cases

There is also an enhanced penalty for possession 10 more more images of a certain kind. Most cases I have handled involve more than 10 images, so this is very common. If only one out of the the 10 images is of a particularly offensive type of content, then each criminal count or charge is reclassified to a higher level felony. (See Fla. Stat. Section 775.0847(2) for the types of images that qualify). What would otherwise be a third degree felony becomes a second degree felony when a person is charged with possessing 10 or more images and one of the images of of a certain type. The offense "level" is also increased by one level under the Criminal Punishment Code which determines sentencing under a point system. Fla. Stat. Section 775.0847(3). 

Point System for Florida Sentence Calculation

Florida law calculates sentences based on a point system, with each count contributing a number of points to the overall sentencing score. Since possession of child pornography carries many points per count, even two counts results in a mandatory prison sentence. Often the prosecutor leverages a plea from the accused by charging an overwhelming number of counts, many of which will be dropped in exchange for a plea of guilty and a prison sentence followed by a term of sexual offender probation. Such penalties include designation as a sexual offender for life.

Ways to Defend Against Charges of Possession of Child Pornography

A lawyer defending these charges should have experience defending computer crimes. An attorney knowledgeable in this area will be prepared to question the prosecution's forensic expert, examine the evidence collected by the investigating detective, and select an appropriate defense expert. A defense expert is usually needed to assist in evaluating the state's evidence against the accused and can sometimes lead to the development of a viable defense. There may be legal issues with connecting the person charged to the images or videos—for instance, if the evidence is found on a computer shared by multiple people. Sometimes there are legal issues with the images or videos themselves, if it is not clear a child was actually involved in their creation.

Harsh Future Consequences

Even at the conclusion of a lengthy prison sentence, many convicted sex offenders are placed on a heightened form of probation which makes living in the community extremely challenging, especially when it comes to finding housing that complies with sex offender laws. Often a person cannot return to their family home after being released from prison. Many end up living in housing with other sex offenders as roommates because living options are so limited.

Even worse, under the Jimmy Ryce Act, a sex offender can face involuntary civil commitment at the end of their prison sentence. Just when they think they are about to finally be released from prison, the person is held to await a trial to determine their psychological fitness to enjoy liberty again. Jimmy Ryce cases are usually those in which a person is released from prison after being convicted of a second or subsequent sex crime. Offenders who continue to try to contact a victim of their sex crimes are also targeted for involuntary commitment. 

Such offenders have a right to a jury trial the first time the state attempts to commit them involuntarily. However, yearly reviews of their commitment status are heard only by a judge. 

Experience

I have extensive experience defending sex crimes at trial as well as in successful plea negotiations. Such charges include failure to register as a sex offender, unlawful sexual activity with a minor, child molestation, lewd and lascivious battery, battery on a child, impregnation of a minor, possession of child pornography, online solicitation of a minor, computer sex crimes, prostitution, capital sexual battery, and involuntary civil commitment under the Jimmy Ryce Act. These serious matters require an experienced attorney, as they carry the ultimate penalties of liberty deprivation and can damage one's reputation beyond repair.