Sexual Battery

If you were accused of sexual battery, contact an attorney at Sammis Law Firm in Tampa, FL. Fighting forceable sexual battery cases is difficult because law enforcement officers often rush to believe the alleged victim even as the physical evidence tends to show the accusations might be false.

The crime of sexual battery is defined as sexual penetration without consent. Under Section 794.011, F.S., the crime of sexual battery is punishable by life imprisonment. Sexual battery under Section 794.011, F.S. is Florida’s statutory successor to the common-law crime of rape. Other jurisdictions call the crime “rape” or “sexual assault.”

In Hillsborough County, FL, the defendant is not eligible to post a bond on any charge of sexual battery or related offenses for forcible rape under sections 794.011 and 794.023, Fla. Stat., until after the first appearance hearing. By retaining an attorney before the first appearance bond hearing, you might have the best chance of getting the bond set as low as possible.

In fact, any criminal offense that is punishable by life is often called “non-bondable” because no substantive constitutional entitlement to bail extends to persons accused of such crimes. See Fla. Const. Art. I § 14 (“Unless charged with a crime . . . punishable by life imprisonment . . .every person charged with a crime . . . shall be entitled to pretrial release on reasonable conditions”) (emphasis added). Instead, as explained in Fla. R. Crim. P. 3.131(a), unless the defense attorney files a motion to be set for evidentiary hearing, and the court makes specific findings, the person accused will continue to be held without bail until the trial.

When people think of forcible rape, they think of a surprise encounter with a dangerous stranger. In most cases, however, the alleged victim knows the person accused of the crime. Allegations of sexual battery occur between acquaintances, friends, co-workers, classmates, relatives, neighbors, dating partners, or even married couples.

Often, these cases hinge on whether a female “consented” to sexual intercourse. Sometimes, the crime occurs after one or both parties were drinking alcohol or using drugs.

Recent Case Results

For a case in Hillsborough County, the State filed a “Notice of Nolle Prosequi” which dropped all charges against our client including:

• burgary of an occupied dwelling with assault or battery; and
• sexual battery on a person alleged to be physically helpless to resist or physically incapacitated.

Just prior to the charges being dropped, we had filed and litigated a Reverse Williams Rule motion showing that the alleged victim had fabricated similar allegation of rape against another man. Although that information was not uncovered by the detectives investigating the case, we undercovered that evidence during our investigation.

Although the state filed a motion in limine to exclude any mention of that evidence, after a hearing on the motions, the court issued an order specifically allowing the defense to present this evidence at trial. Shortly thereafter, the State dropped all charges.

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The jury returned a “not guilty” in a case pending before the Honorable Susan L. Barthle in Dade City, FL. The sex crime was charged as a first-degree felony, punishable by life in prison (with a 25 year minimum mandatory prison sentence). Instead of facing those penalties, our client was exonerated and walked out of the courthouse with us after the jury returned the “not guilty” verdict. Leslie M. Sammis was the lead attorney in the case.

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Disclaimer: The facts of your case may differ from the facts discussed here. Not all case results are listed here. The case results discussed here do not necessarily represent the results obtained in all cases. Each case is different and must be evaluated and handled on its own merit.

Attorneys for Sexual Battery Crimes in Tampa, FL

The attorneys at Sammis Law Firm represent individuals charged with sexually motivated crimes, including sexual battery and forcible rape, throughout the greater Tampa Bay area. We represent clients in Hillsborough County, Polk County, Pasco County, and Pinellas County, Florida. Sammis Law Firm has offices in downtown Tampa, in New Port Richey, and in Clearwater, FL.

We help our clients at every stage of the case. If you are arrested for any Sexual Battery or Forcible Rape charge, you will not be released on bond until after your first appearance hearing. The judge presiding at the first appearance hearing will determine the appropriate amount of bail bond and any restrictions that might be placed on you while the case is pending.

For this reason, having an attorney with you at the beginning stage of the case is vital. After your release, we can investigate the case and schedule depositions with each witness. The defenses in these cases often hinge on rulings made during pre-trial hearings to exclude or suppress evidence or to dismiss the charges.

We take a scholarly approach to examine and dissect each part of the prosecutor’s case. Contact an experienced sexual assault defense attorney in Tampa as early as possible so that all avenues of attacking the charges can be preserved.

Call us at (813) 250-0500 today.

Florida’s Statute of Limitations for Sexual Battery

As a general rule, the prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. In other words, these crimes have no statute of limitations. Several types of sexual battery crimes fall into this category of crimes that have no statute of limitations, including the following:

• Sexual battery of a child less than 12 years of age under § 794.011(2)(a) and (b);
• Sexual battery with the use of force or the use or threat to use a deadly weapon under § 794.011(3); and
• Sexual battery of a child under 12 years of age by a person in familial or custodial authority under § 794.011(8)(c).

Other types of sexual battery offenses that have no statute of limitations include:

• A first degree felony sexual battery committed on a victim under 18 years of age as provided in § 775.15(13)(b)
• A violation of § 794.011(sexual battery) when the victim was under 16 years of age at the time the offense was committed as provided in § 775.15(13)(c).
• A first or second-degree felony sexual battery under § 794.011 which is reported to a law enforcement agency within 72 hours after its commission as provided in §775.15(14); and
• A first or second-degree felony sexual battery under § 794.011 is committed upon a victim under 18 when it is reported to law enforcement or other governmental agency within 72 hours after its commission as provided in § 775.15(13)(a).

An experienced criminal defense attorney can help you understand how the statute of limitations might apply to sexual battery charges.

If the statute of limitations doesn’t apply, the right to a speedy trial might impact the prosecution or defense of your case.

Information Center for Sexual Battery Crimes

• Contacting an Attorney Immediately After an Accusation
• Remain Silent After an Accusation of Sexual Battery
• Pre-file Investigations After an Arrest for Sexual Battery in Florida
• Definitions Under Florida’s Sexual Battery Statute
• Penalties or Punishments for Sexual Battery under Florida Law
• Sexual Battery – Capital Felony under Florida Law
• Sexual Battery – Punishable by Life Felony under Florida Law
• Sexual Battery – First Degree Felony
• Sexual Battery – Second Degree Felony
• Sexual Battery – Custodial or Familial Position of Offender over Victim

Contacting an Attorney Immediately After an Accusation

After you become aware of the accusation, your next call should be to a criminal defense attorney experienced in fighting these cases.

When the investigation begins, a law enforcement officer might knock on your door to interrogate you about the accusation. The detective has one goal – obtaining statements that could implicate the accused in the crime.

You have the right to remain silent under the 5th Amendment. You also have the right to be represented by an experienced criminal defense attorney under the 6th Amendment.

You can invoke your rights by saying, “I’m taking the 5th and the 6th amendment until my attorney is here.” Then don’t make any statements other than giving your name, address, and date of birth, if requested.

Individuals who are entirely innocent of any wrongdoing should be particularly careful not to make any statements. Those statements can be misconstrued and ultimately used against you.

Your side of the story can best be told through your criminal defense attorney, who can preserve favorable evidence and witness testimony.

Remain Silent After an Accusation of Sexual Battery

You can invoke your right to remain silent by telling the officer, “I will not make any statement until my attorney is present.” Then remain silent.

For over 200 years, our constitution has recognized our most important civil liberty against self-incrimination. The fact that you asked for an attorney can never be used against you at trial.

Therefore, in most circumstances, no downside exists to invoking your right to remain silent until after speaking to an attorney. One of the most important things you can do after the accusation is to remain silent until you have retained an experienced criminal defense attorney.

Your attorney may be able to negotiate the terms of your surrender and even fight for a lower bond amount at the first appearance within 24 hours of your arrest.

A good criminal defense attorney in Tampa, FL, may ultimately save you money very early in the case by fighting for a reasonable bond, allowing you to avoid throwing money away to a bail bondsman.

Pre-file Investigations After an Arrest for Sexual Battery in Florida

Within 21 days of the arrest for sexual battery in the greater Tampa Bay area, the prosecutors with the State Attorney’s Office will decide whether to formally file charges. By having a Tampa criminal defense attorney during those 21 days, your attorney may be able to:

• present favorable evidence to the prosecutor;
• provide information from favorable witnesses; and
• show problems that might exist with the prosecutor’s case.

The filing decision is the most important event in the case. In some cases, the prosecutor elects not to file any charges. Presenting favorable evidence through a criminal defense attorney is an important part of making sure a fair result occurs.

Definitions in Florida’s Sexual Battery Statute

• Sexual Battery – Florida law defines the term “sexual battery” as vaginal, oral, or anal union with or penetration by the sexual organ or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law expressly excludes that conduct from the definition of sexual battery.

• Victim of Sexual Battery – Florida law defines the term “victim” as any person who has been the object of a sexual offense such as the sexual battery, forcible rape, or aggravated sexual battery.

• Sexual Battery Offender – Florida law defines the term “offender” as any person accused of a sexual offense in violation of a provision of this chapter, such as sexual battery, forcible rape, or aggravated sexual battery.

• Consent – Florida law defines the term “consent” as any voluntary, knowing, or intelligent consent. The definition of consent does not include any “coerced submission” that occurs because of the failure of the alleged victim to offer physical resistance against the offender.

Florida’s Penalties for Sexual Battery

Florida law provides for specific punishments or penalties based on several factors, including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.

The punishments for sexual battery range from capital or punishable by life penalties to first, second, or third-degree felony penalties. Under the Jimmy Rios-Martinez, Jr. Act of 1992, any person convicted of committing a sexual battery after October 1, 1992, is not eligible for basic gain-time under Florida Statute Section 944.275.

The penalties are even harsher if the crime was committed with a deadly weapon or force likely to cause injury. For instance, sexual battery with a deadly weapon or force likely to cause injury is charged as a felony punishable by life (often called a “life felony”) under Florida Statute Section 794.011(3).

Sexual Battery – Capital Felony under Florida Law

Suppose the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age, and the victim suffers from any personal injury to a sexual organ as a result. In that case, the crime is punished as a capital felony under Florida law.

Practically, any conduct constituting capital sexual battery will also constitute “lewd or lascivious molestation.” The elements of the offense are slightly different. Proof of capital sexual battery requires proof of either penetration or oral, anal, or vaginal union with the sexual organ of another.

On the other hand, proof of lewd or lascivious molestation requires proof of intentional touching of the buttocks, genital area, genitals, breasts, or the clothing covering those areas.

Another difference between the two offenses is that lewd or lascivious molestation requires proof that the touching was done with lewd or lascivious intent. At the same time, the sexual battery may be committed without any proof of specific sensual intent.

According to Administrative Order S-2020-014, which supersedes Administrative Order S-2017-009, all newly filed cases charging a capital sexual battery in the Thirteenth Judicial Circuit in Hillsborough County, FL, will be assigned to the division that was identified as the proposed division. All pending cases involving any defendant charged in the indictment or information will be transferred to the division to which the capital sexual battery case is assigned.

The proposed division for capital sexual battery cases means an assignment of a standard division based on an even distribution made by the Clerk of the Circuit Court in Hillsborough County upon filing a criminal report affidavit after arrest.

This term also means an assignment of a standard division for capital sexual battery cases based on an even distribution by the clerk at the request of the State Attorney’s Office in Tampa, FL, upon the referral of a criminal investigation to the state attorney’s office before an arrest, i.e., direct file cases.

For purposes of the administrative order, the term “capital sexual battery” is defined to mean a violation of section 794.011 (2)(a), Florida Statutes.

For Capital Sexual Battery cases in Hillsborough County, FL, Administrative Order S-2022-0 17 provides:

In accordance with Florida Rule of General Practice and Judicial Administration 2.535(i), where available, a circuit employed stenographic court reporter who has the capacity to provide real-time transcription of the judicial proceedings will be used for trials and post-conviction proceedings in capital cases. If real-time transcription services are not available, the use of a computer-aided transcription qualified court reporter will be utilized. Where available, scopists, text editors or alternating court reporters will be utilized to expedite the finalization of the certified transcript. Reasonable restrictions on work assignments by circuit employed stenographic court reporters will be implemented to ensure transcript production in capital cases is given a priority.

Sexual Battery – Punishable by Life Felony under Florida Law

Under some circumstances, sexual battery is punishable as a life felony under Florida law, including:

• If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.

• If the act of sexual battery is committed against a person who is 12 years of age or older without the person’s consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.

Sexual Battery – First Degree Felony

It is a felony in the first degree (punishable by 30 years in Florida State Prison) if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent. The offense is sometimes listed as “SEXUAL BATTERY-FORCIBLE RAPE.”

The allegations that no consent was given can be related to any of the following prosecutorial theories:

Physically Helpless – When the victim is physically helpless to resist. Florida law defines the term “physically helpless” to mean being asleep, unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.

Serious Personal Injury – When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain, or great bodily harm.

Retaliation – When the offender coerces the victim to submit by threatening to retaliate against the victim or any third person, and the victim reasonably believes that the offender can execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term “retaliation” is defined to include any threats of kidnapping, false incarceration, physical punishment, extortion, or forcible confinement.

Mentally Incapacitated – When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic, or narcotic that physically or mentally incapacitates the victim. Florida law defines the term “mentally incapacitated” as being temporarily incapable of controlling or appraising the victim’s conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim’s due to any other act committed upon the victim without consent. § 794.011(1)(c), Fla. Stat.

Mentally Defective – When the victim is mentally defective, and the offender has actual knowledge of this fact or has reason to believe the victim has a mental disease. Florida law defines “mentally defective” as any mental defect or disease which renders an alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.

Physically Incapacitated – When the victim is physically incapacitated. Florida law defines the term “physically incapacitated” as any bodily impairment or handicap that substantially limits the alleged victim’s ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.

Sexual Battery – Second Degree Felony

A person who commits sexual battery upon a person 12 years of age or older without that person’s consent and in the process, does not use violence or physical force likely to cause serious personal injury commits a felony of the second degree, which is punishable by 15 years in Florida State Prison.

Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.

Sexual Battery – Custodial or Familial Position of Offender

If the accused is in a custodial or familial position of authority over the victim, then the victim’s consent or willingness to engage in the sexual act is not a defense. Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.

In other words, it is not a defense that the person accused was not actually in a position of control or authority if the circumstances were to lead the victim to reasonably believe that the person was in such a position.

Victim is 18 years old or older – If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victim’s consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third-degree felony punishable by 5 years in Florida State Prison.

Victim is between 12 and 17 – If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victim’s consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second-degree felony punishable by 15 years in Florida State Prison.

Victim is under 12 years old – If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victim’s consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first-degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim, then the crime is punishable as a capital or life felony.

Elements of Attempted Sexual Battery in Florida

To prove the crime of attempted sexual battery, the prosecutor with the State Attorney’s Office must prove the following elements beyond all reasonable doubt:

• the defendant did some act towards committing the crime of sexual battery that went beyond just thinking about it;
• the defendant would have committed the crime of sexual battery except that someone prevented him from committing the crime or he failed to commit the crime.

See § 777.04(1), Fla. Stat. and Fla. Std. Jury Instr. (Crim.) 5.1.

Related Links

Florida’s Sexual Assault Counselor-Victim Privilege – Read more about cases in which the alleged victim’s allegations lack credibility or contain inconsistent statements or the rape allegations are not supported by physical evidence. The criminal defense attorney representing the person accused will often attempt to obtain the substance of the first statements made by the alleged victim about the accusation of rape. Florida Statute Section 90.5035 provides an absolute privilege of “confidential” communications between a sexual assault counselor or a trained volunteer at a private or public rape crisis center, but only when the conditions of the statute are met.

Sexual Battery is a Qualifying Offense for Sex Offender Registration – Information from the Florida Department of Law Enforcement website on sexual offenders and sexual predators, the Florida Sexual Predators Act under Florida Statute Section 775.21, and the Registration of sexual offenders for sexual battery or aggravated sexual battery under Florida law.

University of Tampa’s Guidelines on Sexual Assault – Each university or college throughout the greater Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the educational institution, even if the claims occurred off-campus are not prosecuted by the State Attorney’s Office. Read more about the guidelines for sexual assault developed by the University of Tampa, including survivor assistance guides, educational programs, counseling programs, the rape victim’s hotline, and campus disciplinary proceedings after an investigation by the Tampa Police Department or the Hillsborough County Sheriff’s Office.

University of South Florida (USF) Guidelines on Sexual Assault – The Victims’ Advocacy Program will assist the University of South Florida (USF) students or employees who are victims of actual or threatened violence, including assault, battery, sexual assault, or sexual battery. The University of South Florida Police Department often investigates these allegations and reports statistical information concerning rape allegations by students or employees of the University of South Florida.

Finding an Attorney for Sexual Battery Charges in Tampa, FL

If you have been accused of sexual battery in the greater Tampa Bay area, contact an experienced criminal defense attorney at the Sammis to discuss the allegations against you. We represent clients charged with false allegations of rape throughout Hillsborough County, FL.

We also represent clients in the surrounding areas, including Clearwater or St. Petersburg in Pinellas County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, Florida.

Our lawyers represent clients charged with the following types of sexual battery:

• Sexual Battery — Victim Less Than 12 Years of Age § 794.011(2), Fla. Stat.
• Sexual Battery — Victim 12 Years of Age or Older — Great Force § 794.011(3), Fla. Stat.
• Sexual Battery — Victim 12 Years of Age or Older — Specified Circumstances § 794.011(4), Fla. Stat.
• Sexual Battery — Person 12 Years of Age or Older § 794.011(5), Fla. Stat.
• Solicitation of Child under 18 Years of Age to Engage in an Act That Constitutes Sexual Battery by Person in Familial or Custodial Authority § 794.011(8)(a), Fla. Stat.
• Sexual Battery upon Child 12 Years of Age or Older But under 18 Years of Age by Person in Familial or Custodial Authority § 794.011(8)(b), Fla. Stat.
• Engaging in an Act Which Constituted Sexual Battery or Injured the Sexual Organ of Another in an Attempt to Commit Sexual Battery by a Person in Familial or Custodial Authority Upon a Person Less than 12 Years of Age § 794.011(8)(c), Fla. Stat.

Although we are selective in the cases we take, we take great pride in representing individuals who have been falsely accused of serious criminal offenses, including sex crimes such as sexual assault or battery. These charges come with serious criminal penalties, including sex offender probation and a lifetime of reporting requirements.

Call us today at (813) 250-0500 to discuss the facts of your case during a confidential, free consultation.

This article was last updated on Monday, May 20, 2024.