Florida Senate - 2022                                     SB 692
       
       
        
       By Senator Stewart
       
       
       
       
       
       13-00876-22                                            2022692__
    1                        A bill to be entitled                      
    2         An act relating to sexual offenses definitions;
    3         amending s. 39.01, F.S.; creating and revising a
    4         definition relating to sexual abuse of a child;
    5         amending ss. 365.161 and 775.0847, F.S.; creating and
    6         revising definitions relating to obscene telephone
    7         communications and possession or promotion of certain
    8         images of child pornography, respectively; amending s.
    9         794.011, F.S.; creating and revising definitions
   10         relating to sexual battery; conforming provisions to
   11         changes made by the act; amending ss. 827.071 and
   12         847.001, F.S.; creating and revising definitions
   13         relating to sexual performance by a child and
   14         obscenity definitions, respectively; amending s.
   15         872.06, F.S.; creating and revising definitions
   16         relating to abuse of a dead human body; amending ss.
   17         288.1254, 395.0197, 415.102, and 847.0141, F.S.;
   18         conforming cross-references; providing an effective
   19         date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsection (77) of section 39.01, Florida
   24  Statutes, is amended to read:
   25         39.01 Definitions.—When used in this chapter, unless the
   26  context otherwise requires:
   27         (77) “Sexual abuse of a child” for purposes of finding a
   28  child to be dependent means one or more of the following acts:
   29         (a) Any penetration, however slight, of the genitals vagina
   30  or anal opening of one person by the penis of another person,
   31  whether or not there is the emission of semen.
   32         (b) Any sexual contact between the genitals or anal opening
   33  of one person and the mouth or tongue of another person.
   34         (c) Any intrusion by one person into the genitals or anal
   35  opening of another person, including the use of any object for
   36  this purpose, except that this does not include any act intended
   37  for a valid medical purpose.
   38         (d) The intentional touching of the genitals or intimate
   39  parts, including the breasts, genital area, groin, inner thighs,
   40  and buttocks, or the clothing covering them, of either the child
   41  or the perpetrator, except that this does not include:
   42         1. Any act which may reasonably be construed to be a normal
   43  caregiver responsibility, any interaction with, or affection for
   44  a child; or
   45         2. Any act intended for a valid medical purpose.
   46         (e) The intentional masturbation of the perpetrator’s
   47  genitals in the presence of a child.
   48         (f) The intentional exposure of the perpetrator’s genitals
   49  in the presence of a child, or any other sexual act
   50  intentionally perpetrated in the presence of a child, if such
   51  exposure or sexual act is for the purpose of sexual arousal or
   52  gratification, aggression, degradation, or other similar
   53  purpose.
   54         (g) The sexual exploitation of a child, which includes the
   55  act of a child offering to engage in or engaging in
   56  prostitution, or the act of allowing, encouraging, or forcing a
   57  child to:
   58         1. Solicit for or engage in prostitution;
   59         2. Engage in a sexual performance, as defined by chapter
   60  827; or
   61         3. Participate in the trade of human trafficking as
   62  provided in s. 787.06(3)(g).
   63  
   64  As used in this subsection, the term “genitals” includes the
   65  labia minora, labia majora, vulva, hymen, and vagina.
   66         Section 2. Subsection (1) of section 365.161, Florida
   67  Statutes, is amended to read:
   68         365.161 Prohibition of certain obscene telephone
   69  communications; penalty.—
   70         (1) For purposes of this section, the term:
   71         (c)(a) “Obscene” means that status of a communication
   72  which:
   73         1. The average person applying contemporary community
   74  standards would find, taken as a whole, appeals to the prurient
   75  interests;
   76         2. Describes, in a patently offensive way, deviate sexual
   77  intercourse, sadomasochistic abuse, sexual battery, bestiality,
   78  sexual conduct, or sexual excitement; and
   79         3. Taken as a whole, lacks serious literary, artistic,
   80  political, or scientific value.
   81         (a)(b) “Deviate sexual intercourse” means sexual conduct
   82  between persons consisting of contact between the penis and the
   83  anus, the mouth and the penis, or the mouth and the vulva.
   84         (b)“Genitals” includes the labia minora, labia majora,
   85  vulva, hymen, and vagina.
   86         (d)(c) “Sadomasochistic abuse” means flagellation or
   87  torture by or upon a person, or the condition of being fettered,
   88  bound, or otherwise physically restrained, for the purpose of
   89  deriving sexual satisfaction from inflicting harm on another or
   90  receiving such harm oneself.
   91         (e)(d) “Sexual battery” means oral, anal, or genital
   92  vaginal penetration by, or union with, the sexual organ of
   93  another or the anal or genital vaginal penetration of another by
   94  any other object.
   95         (f)(e) “Sexual bestiality” means any sexual act between a
   96  person and an animal involving the sex organ of the one and the
   97  mouth, anus, or genitals vagina of the other.
   98         (g)(f) “Sexual conduct” means actual or simulated sexual
   99  intercourse, deviate sexual intercourse, sexual bestiality,
  100  masturbation, or sadomasochistic abuse; or any act or conduct
  101  which constitutes sexual battery.
  102         (h)(g) “Sexual excitement” means the condition of the human
  103  male or female genitals when in a state of sexual stimulation or
  104  arousal.
  105         Section 3. Present paragraphs (c) through (f) of subsection
  106  (1) of section 775.0847, Florida Statutes, are redesignated as
  107  paragraphs (d) through (g), respectively, a new paragraph (c) is
  108  added to that subsection, and present paragraphs (d) and (e) of
  109  that subsection are amended, to read:
  110         775.0847 Possession or promotion of certain images of child
  111  pornography; reclassification.—
  112         (1) For purposes of this section:
  113         (c)“Genitals” includes the labia minora, labia majora,
  114  vulva, hymen, and vagina.
  115         (e)(d) “Sexual battery” means oral, anal, or genital
  116  vaginal penetration by, or union with, the sexual organ of
  117  another or the anal or genital vaginal penetration of another by
  118  any other object; however, sexual battery does not include an
  119  act done for a bona fide medical purpose.
  120         (f)(e) “Sexual bestiality” means any sexual act, actual or
  121  simulated, between a person and an animal involving the sex
  122  organ of the one and the mouth, anus, or genitals vagina of the
  123  other.
  124  
  125  For purposes of sentencing under chapter 921 and determining
  126  incentive gain-time eligibility under chapter 944, a felony
  127  offense that is reclassified under this section is ranked one
  128  level above the ranking under s. 921.0022 or s. 921.0023 of the
  129  offense committed.
  130         Section 4. Subsections (1), (3), and (8) of section
  131  794.011, Florida Statutes, are amended to read:
  132         794.011 Sexual battery.—
  133         (1) As used in this chapter:
  134         (a) “Consent” means intelligent, knowing, and voluntary
  135  consent and does not include coerced submission. “Consent” shall
  136  not be deemed or construed to mean the failure by the alleged
  137  victim to offer physical resistance to the offender.
  138         (b)“Genitals” includes the labia minora, labia majora,
  139  vulva, hymen, and vagina.
  140         (c)(b) “Mentally defective” means a mental disease or
  141  defect which renders a person temporarily or permanently
  142  incapable of appraising the nature of his or her conduct.
  143         (d)(c) “Mentally incapacitated” means temporarily incapable
  144  of appraising or controlling a person’s own conduct due to the
  145  influence of a narcotic, anesthetic, or intoxicating substance
  146  administered without his or her consent or due to any other act
  147  committed upon that person without his or her consent.
  148         (e)(d) “Offender” means a person accused of a sexual
  149  offense in violation of a provision of this chapter.
  150         (f)(e) “Physically helpless” means unconscious, asleep, or
  151  for any other reason physically unable to communicate
  152  unwillingness to an act.
  153         (h)(f) “Retaliation” includes, but is not limited to,
  154  threats of future physical punishment, kidnapping, false
  155  imprisonment or forcible confinement, or extortion.
  156         (i)(g) “Serious personal injury” means great bodily harm or
  157  pain, permanent disability, or permanent disfigurement.
  158         (j)(h) “Sexual battery” means oral, anal, or genital
  159  vaginal penetration by, or union with, the sexual organ of
  160  another or the anal or genital vaginal penetration of another by
  161  any other object; however, sexual battery does not include an
  162  act done for a bona fide medical purpose.
  163         (k)(i) “Victim” means a person who has been the object of a
  164  sexual offense.
  165         (g)(j) “Physically incapacitated” means bodily impaired or
  166  handicapped and substantially limited in ability to resist or
  167  flee.
  168         (3) A person who commits sexual battery upon a person 12
  169  years of age or older, without that person’s consent, and in the
  170  process thereof:
  171         (a) Uses or threatens to use a deadly weapon; or
  172         (b) Uses actual physical force likely to cause serious
  173  personal injury
  174  
  175  commits a life felony, punishable as provided in s. 775.082, s.
  176  775.083, s. 775.084, or s. 794.0115.
  177         (8) Without regard to the willingness or consent of the
  178  victim, which is not a defense to prosecution under this
  179  subsection, a person who is in a position of familial or
  180  custodial authority to a person less than 18 years of age and
  181  who:
  182         (a) Solicits that person to engage in any act which would
  183  constitute sexual battery as defined in this section under
  184  paragraph (1)(h) commits a felony of the third degree,
  185  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  186         (b) Engages in any act with that person while the person is
  187  12 years of age or older but younger than 18 years of age which
  188  constitutes sexual battery as defined in this section under
  189  paragraph (1)(h) commits a felony of the first degree,
  190  punishable by a term of years not exceeding life or as provided
  191  in s. 775.082, s. 775.083, or s. 775.084.
  192         (c) Engages in any act with that person while the person is
  193  less than 12 years of age which constitutes sexual battery as
  194  defined in this section under paragraph (1)(h), or in an attempt
  195  to commit sexual battery injures the sexual organs of such
  196  person, commits a capital or life felony, punishable pursuant to
  197  subsection (2).
  198         Section 5. Present paragraphs (b) through (j) of subsection
  199  (1) of section 827.071, Florida Statutes, are redesignated as
  200  paragraphs (c) through (k), respectively, a new paragraph (b) is
  201  added to that subsection, and present paragraphs (f), (g), and
  202  (j) of that subsection are amended, to read:
  203         827.071 Sexual performance by a child; penalties.—
  204         (1) As used in this section, the following definitions
  205  shall apply:
  206         (b)“Genitals” includes the labia minora, labia majora,
  207  vulva, hymen, and vagina.
  208         (g)(f) “Sexual battery” means oral, anal, or genital
  209  vaginal penetration by, or union with, the sexual organ of
  210  another or the anal or genital vaginal penetration of another by
  211  any other object; however, “sexual battery” does not include an
  212  act done for a bona fide medical purpose.
  213         (h)(g) “Sexual bestiality” means any sexual act between a
  214  person and an animal involving the sex organ of the one and the
  215  mouth, anus, or genitals vagina of the other.
  216         (k)(j) “Simulated” means the explicit depiction of conduct
  217  set forth in paragraph (i) (h) which creates the appearance of
  218  such conduct and which exhibits any uncovered portion of the
  219  breasts, genitals, or buttocks.
  220         Section 6. Present subsections (6) through (20) of section
  221  847.001, Florida Statutes, are redesignated as subsections (7)
  222  through (21), respectively, a new subsection (6) is added to
  223  that section, and present subsections (14), (15), and (19) of
  224  that section are amended, to read:
  225         847.001 Definitions.—As used in this chapter, the term:
  226         (6)“Genitals” includes the labia minora, labia majora,
  227  vulva, hymen, and vagina.
  228         (15)(14) “Sexual battery” means oral, anal, or genital
  229  vaginal penetration by, or union with, the sexual organ of
  230  another or the anal or genital vaginal penetration of another by
  231  any other object; however, “sexual battery” does not include an
  232  act done for a bona fide medical purpose.
  233         (16)(15) “Sexual bestiality” means any sexual act, actual
  234  or simulated, between a person and an animal involving the sex
  235  organ of the one and the mouth, anus, or genitals vagina of the
  236  other.
  237         (20)(19) “Simulated” means the explicit depiction of
  238  conduct described in subsection (17) (16) which creates the
  239  appearance of such conduct and which exhibits any uncovered
  240  portion of the breasts, genitals, or buttocks.
  241         Section 7. Section 872.06, Florida Statutes, is amended to
  242  read:
  243         872.06 Abuse of a dead human body; penalty.—
  244         (1) As used in this section, the term:
  245         (a)“Genitals” includes the labia minora, labia majora,
  246  vulva, hymen, and vagina.
  247         (b) “Sexual abuse” means:
  248         1.(a) Anal or genital vaginal penetration of a dead human
  249  body by the sexual organ of a person or by any other object;
  250         2.(b) Contact or union of the penis, genitals vagina, or
  251  anus of a person with the mouth, penis, genitals vagina, or anus
  252  of a dead human body; or
  253         3.(c) Contact or union of a person’s mouth with the penis,
  254  genitals vagina, or anus of a dead human body.
  255         (2) A person who mutilates, commits sexual abuse upon, or
  256  otherwise grossly abuses a dead human body commits a felony of
  257  the second degree, punishable as provided in s. 775.082, s.
  258  775.083, or s. 775.084. Any act done for a bona fide medical
  259  purpose or for any other lawful purpose does not under any
  260  circumstance constitute a violation of this section.
  261         Section 8. Paragraph (j) of subsection (1) of section
  262  288.1254, Florida Statutes, is amended to read:
  263         288.1254 Entertainment industry financial incentive
  264  program.—
  265         (1) DEFINITIONS.—As used in this section, the term:
  266         (j) “Qualified production” means a production in this state
  267  meeting the requirements of this section. The term does not
  268  include a production:
  269         1. In which, for the first 2 years of the incentive
  270  program, less than 50 percent, and thereafter, less than 60
  271  percent, of the positions that make up its production cast and
  272  below-the-line production crew, or, in the case of digital media
  273  projects, less than 75 percent of such positions, are filled by
  274  legal residents of this state, whose residency is demonstrated
  275  by a valid Florida driver license or other state-issued
  276  identification confirming residency, or students enrolled full
  277  time in a film-and-entertainment-related course of study at an
  278  institution of higher education in this state; or
  279         2. That contains obscene content as defined in s.
  280  847.001(11) s. 847.001(10).
  281         Section 9. Subsection (10) of section 395.0197, Florida
  282  Statutes, is amended to read:
  283         395.0197 Internal risk management program.—
  284         (10) Any witness who witnessed or who possesses actual
  285  knowledge of the act that is the basis of an allegation of
  286  sexual abuse shall:
  287         (a) Notify the local police; and
  288         (b) Notify the hospital risk manager and the administrator.
  289  
  290  For purposes of this subsection, “sexual abuse” means acts of a
  291  sexual nature committed for the sexual gratification of anyone
  292  upon, or in the presence of, a vulnerable adult, without the
  293  vulnerable adult’s informed consent, or a minor. “Sexual abuse”
  294  includes, but is not limited to, the acts defined in s.
  295  794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
  296  vulnerable adult’s or minor’s sexual organs, or the use of the
  297  vulnerable adult or minor to solicit for or engage in
  298  prostitution or sexual performance. “Sexual abuse” does not
  299  include any act intended for a valid medical purpose or any act
  300  which may reasonably be construed to be a normal caregiving
  301  action.
  302         Section 10. Subsection (26) of section 415.102, Florida
  303  Statutes, is amended to read:
  304         415.102 Definitions of terms used in ss. 415.101-415.113.
  305  As used in ss. 415.101-415.113, the term:
  306         (26) “Sexual abuse” means acts of a sexual nature committed
  307  in the presence of a vulnerable adult without that person’s
  308  informed consent. “Sexual abuse” includes, but is not limited
  309  to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
  310  fondling, exposure of a vulnerable adult’s sexual organs, or the
  311  use of a vulnerable adult to solicit for or engage in
  312  prostitution or sexual performance. “Sexual abuse” does not
  313  include any act intended for a valid medical purpose or any act
  314  that may reasonably be construed to be normal caregiving action
  315  or appropriate display of affection.
  316         Section 11. Subsection (1) of section 847.0141, Florida
  317  Statutes, is amended to read:
  318         847.0141 Sexting; prohibited acts; penalties.—
  319         (1) A minor commits the offense of sexting if he or she
  320  knowingly:
  321         (a) Uses a computer, or any other device capable of
  322  electronic data transmission or distribution, to transmit or
  323  distribute to another minor any photograph or video of any
  324  person which depicts nudity, as defined in s. 847.001(9), and is
  325  harmful to minors, as those terms are defined in s. 847.001 s.
  326  847.001(6).
  327         (b) Possesses a photograph or video of any person that was
  328  transmitted or distributed by another minor which depicts
  329  nudity, as defined in s. 847.001(9), and is harmful to minors,
  330  as those terms are defined in s. 847.001 s. 847.001(6). A minor
  331  does not violate this paragraph if all of the following apply:
  332         1. The minor did not solicit the photograph or video.
  333         2. The minor took reasonable steps to report the photograph
  334  or video to the minor’s legal guardian or to a school or law
  335  enforcement official.
  336         3. The minor did not transmit or distribute the photograph
  337  or video to a third party.
  338         Section 12. This act shall take effect October 1, 2022.