Author’s note from Attorney Howard Iken: Recent research reveals that sexual harassment and assault against women in the workplace is prevalent, with one in three women experiencing harassment and nearly one in five women reporting rape or attempted rape. Sexual assault is defined as non-consensual sexual conduct and can lead to severe consequences such as imprisonment and registration as a sex offender. False accusations are also a concern. Defenses to sexual assault charges include innocence, mistaken identity, false accusations, alibi, impossibility, constitutional rights violations, mental incapacity, or consent.
Perhaps you have heard the results of recent research which indicates one out of three women have been victims of sexual harassment in the workplace, and, even more alarming, that nearly one out of five women surveyed have been raped, or experienced an attempted rape at some point. The latter statistics come from an exhaustive government survey of rape and domestic violence which affirmed that sexual violence against women remains endemic in the United States—and is far more common than previously thought. The National Intimate Partner and Sexual Violence Survey was begun in 2010 and included telephone surveys of more than 16,500 adults. While sexual assault can certainly happen to men—and there were men in the study who reported being victimized—it affects women disproportionately. As compared to one in five women who have experienced a sexual assault, one in 71 men has been raped, with most of these assaults occurring when the men were younger than eleven years old. The resulting numbers for both men and women were considerably higher than prior estimates. While no one would dispute the serious nature of the sexual assault, on the other side, there are those who are falsely accused of sexual assault or those whose behavior did not reach the legal definition of sexual assault.
What is Considered Sexual Assault?
The definition of sexual assault varies greatly from state to state, however, in general, sexual assault is any type of conduct that could be considered indecent or sexual in nature, toward another person. Sexual assault is defined under Florida statute as “oral, anal or vaginal penetration by, or with the sexual organ of another or the anal or vaginal penetration of another by any object.” Most commonly, sexual assault charges in the state of Florida occur when one person is accused of forcing another into a sexual act against their will.
The crime of sexual assault can bring fear, shame, and/or mental trauma to the alleged victim, and due to public pressure, the penalties for sexual assault have increased significantly across the nation. The most common type of sexual assault is rape, which is sexual intercourse with a person who clearly stated they were unwilling (or a person who was unable to consent). The inability to consent could be due to the alleged victim being younger than sixteen, having a diagnosis of mental illness, or being inebriated or unconscious at the time of the assault.
How a Conviction for Sexual Assault Can Derail Your Future
Sexual assault is a felony offense; even if the act was not committed if intent to commit the act can be proven, the offender may still be charged. A conviction for sexual assault can lead to extremely severe consequences, including the following:
- Being sentenced to a significant number of years in prison, possibly even for life;
- The necessity of registering as a sex offender for many years, or for the rest of the person’s life,
- Restrictions on where the convicted person may live;
- The necessity for the convicted person to wear a GPS ankle-tracking device;
- The potential of losing a current job, or being unable to obtain employment due to the presence of a sexual assault conviction on the record;
- The inability of the convicted person to obtain student loans or other governmental assistance;
- The inability of the convicted person to obtain a professional license;
- The inability of the convicted person to work with children;
- The inability of the convicted person to rent a home, and
- The social stigma and potential loss of family, friends, custody of children and home.
In fact, there are few criminal charges which can have far-reaching consequences. Due to the very nature of sexual assault charges, social stigma is immediately attached before the accused is even tried. Sexual assault charges are among the most difficult to defend, and those accused of the crime who are innocent may not take the charges seriously enough, believing there is nothing to worry about.
Nothing could be further than the truth. Due to the sensitive nature of sexual assault and other sex crimes, prosecutors may have a stronger motivation to believe the victim, even when evidence refutes his or her claims. Sexual assault charges generally focus heavily on the personal testimony of the alleged victim as well as that of the accused, however, the word of the accuser is generally given more weight.
Potential Penalties Associated With a Conviction for Sexual Assault
A person convicted of sexual assault in the state of Florida could face—on the low end—a second-degree felony conviction, punishable by up to fifteen years in prison and fines as high as $10,000. The highest level of sexual assault in the state of Florida could result in a capital or life felony which brings life imprisonment or the death penalty as well as fines as high as $15,000.
More specifically, the exact penalties will depend on the age of both the accused and the accuser as well as the circumstances surrounding the incident of sexual assault (also called sexual battery). In a case where the alleged offender is more than eighteen years old and the alleged victim is younger than twelve when sexual assault is committed or the attempt to commit a sexual assault results in injury to the sexual organs of the child, a capital felony can be charged.
The convicted person in such a case must serve at least 25 years in prison (when receiving a life sentence) before parole eligibility can occur. Under some circumstances, life imprisonment may be the sentence. If there was a threat to use a deadly weapon, or a deadly weapon was used, then a life felony has been committed. The penalties can include not more than 40 years in prison and steep fines.
In cases where the alleged offender is younger than eighteen, and the alleged victim is younger than twelve, a person convicted of the crime could be sentenced to life in prison (not to exceed 40 years) as well as a fine. The crime is considered a life felony. If the alleged offender is more than eighteen years old and the alleged victim is more than twelve years old, other circumstances will dictate the penalties.
If a drug or other substance was used to incapacitate the victim, if threats of violence or force were used, or if the victim was either mentally incapacitated or physically helpless to resist, the convicted person could receive up to 30 years in prison as well as significant fines. If no physical force was used, and no serious personal injury resulted, a second-degree felony can be charged, with penalties of fines and as much as five years in prison.
Under Florida Statute 794.0115, an individual who has been charged with sexual battery can be considered a dangerous sexual offender who will face a mandatory 25 years in prison if one of the following is true: the accused caused serious personal injury, the accused either used or threatened to use a deadly weapon, the accused committed the offense to more than one person or the accused has a prior conviction for a sex crime. The state of Florida may also impose enhanced sentencing if the offender is judged to be a habitual felony offender, a violent career criminal, a three-strike violent felony offender, or a habitual violent felony offender. Enhanced sentencing can range from five years with no chance of parole to life imprisonment.
Consequences of a Sexual Assault Conviction after Serving Prison Time
Even if a person convicted of sexual assault is released from prison after serving their time, the punishment is not over. Once released, the offender must register with the Florida sexual offender system, which is a database, controlled by the government, showing where convicted sexual offenders live and work. The information in the database is easily accessible to the public and will be made available to neighbors and employers at their request.
The goal is to prohibit convicted sex offenders from living near schools or other places where children are present. Employers are also able to screen potential employees for a history of sexual misconduct. As criminal offenses, a person convicted of sexual assault will be required to disclose the information to employers when filling out job applications, affirming he or she does have a criminal record. As you can imagine, this can severely impair the ability to obtain a new residence or employment, following a conviction for sexual assault.
False Accusations of Sexual Assault in the State of Florida
Unfortunately, false accusations are not all that uncommon regarding sex offenses. False accusations most often occur during a divorce, a child custody case or a bad breakup. The false accusations may be simple retaliation or revenge or could be to gain the upper hand during the division of assets or to gain custody of a child. As an example, a wife may allege her husband sexually assaulted her on multiple occasions during their marriage, with the goal of being awarded a larger portion of the marital assets. A parent may coerce a child into claiming sexual abuse from the other parent in order to gain sole custody of the children out of nothing more than spite. False accusations can be difficult to disprove unless a clear motivation for the accusations can be established.
Potential Defenses to Sexual Assault in the State of Florida
Of course, the defense presented on your behalf by your Florida criminal defense attorney will depend largely on the circumstances in your case, however, some of the more common defenses include:
- Actual innocence—you are absolutely not guilty of the charges of sexual assault;
- Mistaken identity—the victim mistakenly identified you as the person who sexually assaulted him or her—photo arrays and lineups are wrong at least 25 percent of the time;
- You are the victim of false accusations, and the alleged victim had the motivation to lie;
- You could not have committed the crime, as you were somewhere else at the time the sexual assault took place;
- The act of sexual assault—as described by the accuser—was not physically possible;
- Your constitutional rights were blatantly violated or there were procedural errors committed by law enforcement following your arrest;
- You were the victim of diminished mental capacity, mental instability or temporary insanity at the time the crime was committed, and
- You engaged in consensual sex, rather than committed a sexual assault.
What to Do After Being Charged With Sexual Assault
The first thing to remember, after being charged with sexual assault in the state of Florida, is that you should absolutely not speak to anyone in law enforcement. Politely give your name and address, then stop talking until your attorney arrives. Tell the police you will not say any more until you are legally represented. If you are innocent of the charges, don’t think they will miraculously go away if you do nothing. They won’t, and valuable time will have been wasted. Despite the fact you are presumed, under our legal system, to be not guilty until the evidence proves otherwise, in reality, you will have to combat stereotypes, prejudice, and bias time after time after being charged with a sex offense. Our current legal system tends to be unfairly stacked with law enforcement officers who fail to look at the possible motivations of the accuser to be untruthful, as well as prosecutors who are unwilling to look beyond the charges once a sex crime is alleged. The justice system can move very slowly following your charges of sexual assault, and during that time your life is likely to be in complete chaos. If you are able, put together a timeline containing as many details as you can possibly recollect regarding the allegations of sexual assault against you. Most importantly, carefully monitor your conversations with others during the period when your Florida criminal defense attorney builds your case lest you inadvertently hurt your case, and by extension, your future.