Rape

Not all sexually-motivated offenses in Florida are violent in the traditional sense. There is not always a weapon, threat or show of force. They are nonetheless often treated as violent crimes.

This is also true of sexual battery, which is the legal terminology in Florida that encompasses the crime of “rape,” the most serious kind of sexual offense. Law enforcement agencies and prosecutors devote extensive resources to securing convictions in these cases.

At The Ansara Law Firm, our Fort Lauderdale rape defense lawyers recognize prosecutors often face significant challenges in sexual battery cases. When forensic or physical evidence either doesn’t exist or isn’t relevant, these cases frequently turn into a “he-said-she-said” war of words.

Still, stigma against the accused can be powerful and the high-profile nature of some accusations can contribute to a less-than-objective investigation. Plus, penalties for sex crimes are draconian, and often span decades.

Sexual battery is defined in F.S. 794.011 as:

• Non-consensual physical penetration (oral, vaginal or anal) or union with the sexual organ of another person,
  OR
• Non-consensual penetration of another person with an object.

In this state, the terms “sexual battery” and “rape” are synonymous, and essentially, have to do with one person compelling another to engage in intercourse against the victim’s will.

Under the statute, the term “consent” means intelligent, knowing and voluntary consent. The statute specifically provides that failure of an alleged victim to offer physical resistance to the offender is not going to automatically mean he or she consented.

But this can create a gray area for prosecutors. A defendant may have been reading other non-verbal cues and took the lack of a clear “no” or physical resistance as implied consent. This is often the case in sexual encounters among those who are already couples, or those who are intoxicated.

However, there are some circumstances under which victims cannot give consent. These would include situations where the alleged victim is either mentally defective or mentally incapacitated, either due to mental disease or intoxicating substance.

There are also considerations for youthful victims. The “age of consent” in Florida is 18. However, there is a provision that allows 16-and 17-year-olds to consent to sexual intercourse with someone who is between the ages of 16 and 23. There is also the so-called “Romeo and Juliet” law that allows individuals who are 14 to give consent to sex, so long as the “offender” is no more than four years older.

One of the most serious types of sexual battery involves a defendant older than 18 who commits sexual battery on a person younger than 12 without his or her consent. It’s a first-degree felony, and is increased to a life felony if it is done in conjunction with one of the following crimes:

• Kidnapping
• False imprisonment
• Lewd or lascivious offenses
• Computer pornography

Sexual battery committed against an elderly person is also deemed a life felony.

In general though, barring other aggravating factors, the crime of sexual battery or rape is a second-degree felony, punishable by:

• Maximum 15 years in prison
• Maximum 15 years sex offender probation
• Maximum $10,000 in fines

Defendant may also be required to register as a sex offender for years after release.

An experienced criminal defense lawyer can help identify all promising defense strategies in your specific case, but in general, one of the first elements we would explore is the issue of consent.

If there is no question sexual activity occurred and defendant was involved, this becomes a central strategy.

In cases where there is no definitive proof defendant was involved, we may seek to challenge accuser’s memory or credibility. Attorneys cannot use an accuser’s past sexual history in his or her defense.

The first step to formulating an effective defense is to contact an attorney who will conduct a thorough investigation of the facts in your case.

While the most highly-publicized cases of rape involve an alleged victim and assailant who are strangers, most times, the people involved know one another as acquaintances, co-workers, classmates, friends, relatives, neighbors, paramours or even spouses. The primary question often comes down to “consent,” which is a key defense in sexual battery cases.

This is generally difficult to prove because often, DNA and other types of forensic evidence won’t definitively prove consent.

But law enforcement officials often blindly believe accusers, even when there exists strong motivation to lie. Exculpatory evidence may be excluded, and your words to police are often misquoted or twisted.

Some defendants think they will be able to “sort it out” by talking with detectives and just “explaining my side.” This is one of the worst things you can do without guidance from a defense lawyer.

Your statements will inevitably be used against you. Some worry that by “lawyering up,” they somehow appear “more guilty.”

But here’s what you need to remember: Prosecutors can’t use your decision to hire a lawyer – which is your legal right – as evidence of guilt against you in court.

What they can use are your own words. These statements can prove to be a major hurdle for the defense during trial. Such interviews almost never work in a defendant’s favor. Always call a lawyer first, no matter what the circumstances.