When a criminal lawyer analyzes this a sexual battery case that involves the use of a weapon or great bodily harm, he/she must consider how the case facts compare to the legal definition for a “deadly weapon.” This is important because if the object used does not qualify as a deadly weapon, then the defendant may have a viable defense.
According to Florida law, a weapon is considered to be a deadly weapon when it is used in a manner likely to cause death or great bodily harm. Threatening to use a weapon in this manner would be included in this definition as well.
Equally, a criminal defense lawyer must also pay attention to the concept of “serious personal injury.” By definition, this concept includes any great bodily harm or pain, permanent disfigurement or permanent disability.
Sexual Battery on a Child 12 Years or Older, But Under 18 Years
By Person in Familial or Custodial Authority
This crime was written specifically to address sexual battery offenses that are committed on teenagers by family members or other adults who have custody of such children. When it comes to sexual battery offenses committed on children who are under 12 years of age, the law provides for other offenses.
Regardless, when the prosecution charges a person with sexual battery on a child 12<18 by a family member or custodian, they must prove the following legal elements:
- The prosecution must prove that the alleged victim was 12 years old or older, but younger than 18 at the time of the offense.
- The prosecution must prove that the defendant was either a family member or a person in a custodial position of the child.
- The prosecution must prove that the defendant committed a sex act with/upon the child during which either party penetrated or had union with the other’s anus, vagina, or mouth using their sex organ, or
- The prosecution must prove that an object was used to penetrate the victim’s anus or vagina.
Since this is a sexual battery charge that concerns minors, consent is not an issue. This means that a conviction will be sustained when there is no evidence of coercion or force. In the alternative, it is not a defense to prove that the victim consented to the sex act. The fact that the victim is a minor makes the act unlawful, regardless of consent.
Like other forms of sexual battery, there is also an exception for bona fide medical purposes. Such exceptions could occur when a family member or custodian has to take a child’s temperature using a rectal thermometer, for example.
It should also be noted that someone in custodial authority can include babysitters, sports coaches, day care operators, teachers, scout leaders, etc. Whether a person qualifies as having custodial authority will depend heavily on the specific facts of the case and his/her relationship to the victim.
For example, a school teacher who engages in a sex act with a former student during summer months when school is closed may not qualify as a person with custodial authority, even though he/she may have had such authority in the past.
It is important to remember that the best criminal lawyers are creative and find new ways to challenge the limits of the law to see what conduct falls within certain definitions and which does not. Contrary to the ignorant, law is not supposed to applied in an amorphous, uncontrolled, or ill-defined manner.
Instead, law is very precise.
Either a person’s conduct falls within a specified definition or it does not. If it does not, then he/she cannot be held liable for that type of offense. In some cases, a different offense may apply. In others, no offense may apply. The facts of any one case must be applied to the controlling law to see if there is a fit. In America, prosecutors cannot cram insufficient allegations into a misapplied definition to obtain a conviction. When they do, it is the job of the criminal defense lawyer to set things straight.