Sexual Battery by a Person in Custodial/Familial Authority

As an initial matter, sexual battery is a horrific crime and anyone who is rightfully convicted of this crime should be punished to the fullest extent of the law. However, not everyone so accused is guilty of the offense. False accusations of sexual battery occur with some frequency, unfortunately. The reasons people make up such accusations are as varied as your imagination. They come up because of a relationship going bad, to get attention, spite, or financial gain that comes from the leverage of such an accusation. Unfortunately, simply being accused of such a crime can be a life changer.

One particular allegation of sexual battery that is especially serious is when the allegation is made by a minor (person under 18 years of age) against a person in familial or custodial authority. In general, when the additional element is present, the level of punishment increases by a level. Fla. Stat. 794.011(8) reads:

• (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:
  • (a) Solicits that person to engage in any act which would constitute sexual battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  • (b) Engages in any act with that person while the person is 12 years of age or older but younger than 18 years of age which constitutes sexual battery commits a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
  • (c) Engages in any act with that person while the person is less than 12 years of age which constitutes sexual battery, or in an attempt to commit sexual battery injures the sexual organs of such person commits a capital or life felony, punishable pursuant to subsection (2).

Fla. Stat. § 794.011 (emphasis added)

Furthermore, Fla. Stat. 794.011(9) states that it doesn’t even matter whether the accused was in fact a person in familial or custodial authority. It only matters whether it was reasonable for the accuser to reasonably believe that the accused was in a position of such authority.

However, Fla. Stat. 794.011(10) does make it a third-degree felony for an accuser to falsely accuse a law enforcement officer or other government employee in custodial authority. Given the seriousness of such an allegation, I’m baffled that all false allegations of sexual battery are not punishable as felonies.

For the purposes of this article, this author is going to assume that the reader has a basic understanding of the definition of “sexual battery” and the acts that constitute this crime. However, the terms “custodial and familial authority” are not defined by statute. Instead, the courts have filled this gap in the legislation by defining the terms. In Oliver v. State, 977 So.2d 673 (Fla. 5^th DCA 2008), the Court, following the instructions laid down in Florida Supreme Court precedent, stated:

The terms “familial or custodial authority” are not defined in Chapter 794, but they are defined in the case law. Familial authority and custodial  [**2] authority are not the same. Crocker v. State, 752 So. 2d 615 (Fla. 2d DCA 1999). In Pozek v. State,  [*676]  803 So. 2d 768, 769 -70 (Fla. 5th DCA 2001), we adopted the following definitions:

In State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994), the supreme court defined the concept of “familial relationship” in the context of the sexual battery of children. ….. In Rawls, the court concluded that the determination of a “familial relationship” must be done on a case-by-case basis. Id. at 1353. The court explained:

Consanguinity and affinity are strong indicia of a familial relationship but are not necessary. Also, the defendant and victim need not reside in the same home. The relationship must be one in which there is a recognizable bond of trust with the defendant, similar to the bond that develops between a child and her  [**3] grandfather, uncle, or guardian. Where an individual legitimately exercises parental-type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the admissibility of collateral crimes evidence . . . .

Oliver v. State, 977 So. 2d 673, 675-676

As such, live-in boyfriends and any other acquaintance of the accuser who becomes almost like family to the accuser, are likely to meet this definition. Accordingly, any defense of such a charge will most likely have to focus on the credibility of the accuser and not the status of the relationship between accuser and accused. Of course, where that issue is triable, it will be tried as well. In some cases, just winning on that issue could mean the difference between life and prison and some determinate prison sentence short of life. That may be a win in and of itself.