A Person with Familial Authority or Custodial Authority Soliciting or Committing Sexual Battery on a Child - Florida Statute 794.011(8)

sex offenses

How many times have you heard in the news about a teacher having sex with their student? What happens prior to sex? Someone initiates the sexual act or asks for it. Sometimes this is the teacher and sometimes this is the child.

This statute does not only cover teachers asking for sex but anyone with custodial authority. “A ‘custodian' is someone who has custody of another. ‘Custody’ connotes a duty or obligation to care for the other. Concerning a child, it usually implies that the person has some responsibilities in loco parentis.” See Hallberg v. State, 649 So. 2d 1355, 1357 (Fla. 1994) (citations omitted). Examples of custodians include priests, scout masters, soccer coaches, foster parents, babysitters, day care workers, etc.

While the statute uses the word familial, the person does not need to be related but only have familial authority. The judge in Crocker v. State explained:

[T]he State should be required to prove that, under the factual circumstances of the child's family structure, the perpetrator has established a familial supervisory role for the victim. The “bond of trust” . . . is evidence of the position of authority, but it does not replace it. Trust can exist without authority, and authority without trust. . . . “[F]amily relationship” is evidenced “[w]here an individual legitimately exercises parental-style authority over a child on a regular basis.” In my mind, this description of family relationship is a better description of family authority.

Crocker v. State , 24 Fla. L. Weekly D1616b (Fla. 2d DCA July 9, 1999).

What the State Prosecutor Has to Prove to Convict a Defendant of a Familial Authority or Custodial Authority Soliciting Sexual Battery

The prosecutor must prove beyond a reasonable doubt:

(1) The victim was younger than 18;

(2) The defendant had a position of familial authority or custodial authority over the victim; and

(3) The defendant commanded, encouraged, hired, requested, or tried to induce the victim to engage in an act which constitutes sexual battery in which either:

  1. The sexual organ of the defendant or the victim would penetrate or have union with the anus, vagina, or mouth of the victim or defendant; or
  2. The anus or vagina of the victim would be penetrated by an object.

It does not matter if there was no sexual union but only that the defendant solicited this crime. Furthermore, it does not matter whether or not the victim consented to the sexual act.

If you or someone you know has been charged with and arrested for this crime, do not hesitate to contact one of our West Palm Beach Criminal Lawyers.

What the State Prosecutor Has to Prove to Convict a Defendant of a Familial Authority or a Custodial Authority Committing Sexual Battery

The prosecutor must prove beyond a reasonable doubt:

(1) The victim was older than 12 but younger than 18;

(2) The defendant had a position of familial authority or custodial authority over the victim; and

(3) The defendant committed an act in which either:

  1. The sexual organ of the defendant or the victim would penetrate or have union with the anus, vagina, or mouth of the victim or defendant; or
  2. The anus or vagina of the victim would be penetrated by an object.
Defenses

One defense is that the solicitation happened not during custodial hours but off-hours such as a teacher soliciting sex during the summer where there is no custodial authority. See Hallberg v. State, 649 So. 2d 1355 (Fla. 1994).

Punishment for Solicitation of Sexual Battery

A familial authority or custodial authority solicitation sexual battery is ranked as level 6 under the Florida Criminal Punishment Code. It is a third-degree felony and punishable up to 5 years in prison and a $5,000 fine.

Punishment for Committing Sexual Battery

A familial authority or custodial authority committing sexual battery is ranked as a level 9.

If the defendant committed sexual battery on someone 12 or older but younger than 18, the defendant committed a first-degree felony which is punishable up to life in prison.

If the defendant committed sexual battery on someone younger than 12 or injured their sexual organs, they commit a life or capital felony which means that depending on the facts, the person can receive the death penalty or life in prison.

If the defendant was 18 years or older at the time of the crime and caused serious injury to the victim, used or threatened to use a deadly weapon, victimized more than one person, or has a previous rape conviction, then Florida Statute 794.0115 requires a 50 year minimum mandatory sentence.

Other Consequences

An individual who pleads guilty to this crime will be designated a sexual predator and be required under Florida Statute 775.21 to register. If the defendant travels around the United States, there are also sexual offender registrations laws nationally.

Job hunting will be difficult because employers will find this on a background check and you cannot expunge any conviction!

Contact the Law Office of Roger P. Foley, P.A.

This crime is serious. If you are being charged with this crime, call our law offices to schedule a free consultation. We want to talk to you about what you observed about the event. We want to find out as much as you know so we can put together a defense for your case. We will take depositions of the individuals involved and look for discrepancies in their testimony. We will fight your case all the way to trial; however, sometimes cases just cannot be won. In this situation, our West Palm Beach criminal attorneys will still keep on defending you by trying to convince the prosecutor and judge to change the charges or reduce the sentence. These cases are fact specific and results depend on the facts.

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