Florida Senate - 2022                              CS for SB 692
       
       
        
       By the Committee on Criminal Justice; and Senators Stewart and
       Harrell
       
       
       
       
       591-02800A-22                                          2022692c1
    1                        A bill to be entitled                      
    2         An act relating to sexual offenses; amending s.
    3         90.404, F.S.; providing that substantial similarity is
    4         not required for the admissibility of certain evidence
    5         in a criminal case in which the defendant is charged
    6         with a sexual offense; amending s. 365.161, F.S.;
    7         revising the definitions of the terms “sexual battery”
    8         and “sexual bestiality”; amending s. 491.0112, F.S.;
    9         revising the definition of the term “sexual
   10         misconduct”; amending s. 775.0847, F.S.; revising the
   11         definitions of the terms “sexual battery” and “sexual
   12         bestiality”; amending s. 775.15, F.S.; providing a
   13         time limitation for the prosecution of specified
   14         sexual battery offenses; providing applicability;
   15         amending s. 794.011, F.S.; defining the term “female
   16         genitals”; revising the definition of the term “sexual
   17         battery”; providing that a person who threatens to use
   18         actual physical force likely to cause serious bodily
   19         injury or death while committing specified sexual
   20         battery offenses commits a life felony; amending ss.
   21         794.05, 796.07, and 800.04, F.S.; revising the
   22         definition of the term “sexual activity”; creating s.
   23         800.06, F.S.; creating the offense of lewd or
   24         lascivious molestation of a person 16 years of age or
   25         older; providing criminal penalties; amending s.
   26         825.1025, F.S.; revising the definition of the term
   27         “sexual activity”; amending ss. 827.071 and 847.001,
   28         F.S.; revising the definitions of the terms “sexual
   29         battery” and “sexual bestiality”; amending s. 872.06,
   30         F.S.; revising the definition of the term “sexual
   31         abuse”; amending s. 944.35, F.S.; revising the
   32         definition of the term “sexual misconduct”; amending
   33         s. 951.27, F.S.; requiring that HIV test results
   34         performed on inmates arrested for sexual offenses
   35         involving female genital penetration be disclosed
   36         under certain circumstances; amending ss. 395.0197,
   37         415.102, and 847.0141, F.S.; conforming cross
   38         references; providing an effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Paragraph (c) of subsection (2) of section
   43  90.404, Florida Statutes, is amended to read:
   44         90.404 Character evidence; when admissible.—
   45         (2) OTHER CRIMES, WRONGS, OR ACTS.—
   46         (c)1. In a criminal case in which the defendant is charged
   47  with a sexual offense, evidence of the defendant’s commission of
   48  other crimes, wrongs, or acts involving a sexual offense is
   49  admissible and may be considered for its bearing on any matter
   50  to which it is relevant.
   51         2. For the purposes of this paragraph, the term “sexual
   52  offense” means conduct proscribed by s. 787.025(2)(c), s.
   53  787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), s.
   54  794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
   55  former s. 796.035, s. 825.1025(2)(b), s. 827.071, s.
   56  847.0135(5), s. 847.0145, or s. 985.701(1).
   57         3. Substantial similarity is not required for admission of
   58  other crimes, wrongs, or acts when identity is not at issue.
   59         Section 2. Paragraphs (d) and (e) of subsection (1) of
   60  section 365.161, Florida Statutes, are amended to read:
   61         365.161 Prohibition of certain obscene telephone
   62  communications; penalty.—
   63         (1) For purposes of this section, the term:
   64         (d) “Sexual battery” means oral, anal, or female genital
   65  vaginal penetration by, or union with, the sexual organ of
   66  another or the anal or female genital vaginal penetration of
   67  another by any other object.
   68         (e) “Sexual bestiality” means any sexual act between a
   69  person and an animal involving the sex organ of the one and the
   70  mouth, anus, or female genitals vagina of the other.
   71         Section 3. Paragraph (c) of subsection (4) of section
   72  491.0112, Florida Statutes, is amended to read:
   73         491.0112 Sexual misconduct by a psychotherapist;
   74  penalties.—
   75         (4) For the purposes of this section:
   76         (c) “Sexual misconduct” means the oral, anal, or female
   77  genital vaginal penetration of another by, or contact with, the
   78  sexual organ of another or the anal or female genital vaginal
   79  penetration of another by any object.
   80         Section 4. Paragraphs (d) and (e) of subsection (1) of
   81  section 775.0847, Florida Statutes, are amended to read:
   82         775.0847 Possession or promotion of certain images of child
   83  pornography; reclassification.—
   84         (1) For purposes of this section:
   85         (d) “Sexual battery” means oral, anal, or female genital
   86  vaginal penetration by, or union with, the sexual organ of
   87  another or the anal or female genital vaginal penetration of
   88  another by any other object; however, sexual battery does not
   89  include an act done for a bona fide medical purpose.
   90         (e) “Sexual bestiality” means any sexual act, actual or
   91  simulated, between a person and an animal involving the sex
   92  organ of the one and the mouth, anus, or female genitals vagina
   93  of the other.
   94  
   95  For purposes of sentencing under chapter 921 and determining
   96  incentive gain-time eligibility under chapter 944, a felony
   97  offense that is reclassified under this section is ranked one
   98  level above the ranking under s. 921.0022 or s. 921.0023 of the
   99  offense committed.
  100         Section 5. Subsection (21) is added to section 775.15,
  101  Florida Statutes, to read:
  102         775.15 Time limitations; general time limitations;
  103  exceptions.—
  104         (21) In addition to the time periods prescribed in this
  105  section, a prosecution for sexual battery in violation of s.
  106  794.011, where the victim was unaware of the sexual battery due
  107  to the victim being mentally defective, mentally incapacitated,
  108  or physically helpless, may be commenced within 1 year after the
  109  date on which the victim obtains actual knowledge of the offense
  110  or the date on which the offense is reported to law enforcement,
  111  whichever occurs first. Any dissemination of a recording of such
  112  offense before the victim obtains actual knowledge thereof or
  113  before its confiscation by a law enforcement agency does not
  114  affect any provision of this subsection. This subsection applies
  115  to any offense that is not otherwise barred from prosecution on
  116  or before October 1, 2022.
  117         Section 6. Subsections (1), (3), and (8) of section
  118  794.011, Florida Statutes, are amended to read:
  119         794.011 Sexual battery.—
  120         (1) As used in this chapter:
  121         (a) “Consent” means intelligent, knowing, and voluntary
  122  consent and does not include coerced submission. “Consent” shall
  123  not be deemed or construed to mean the failure by the alleged
  124  victim to offer physical resistance to the offender.
  125         (b) “Female genitals” means the labia majora, labia minora,
  126  clitoris, vulva, hymen, and vagina.
  127         (c)(b) “Mentally defective” means a mental disease or
  128  defect which renders a person temporarily or permanently
  129  incapable of appraising the nature of his or her conduct.
  130         (d)(c) “Mentally incapacitated” means temporarily incapable
  131  of appraising or controlling a person’s own conduct due to the
  132  influence of a narcotic, anesthetic, or intoxicating substance
  133  administered without his or her consent or due to any other act
  134  committed upon that person without his or her consent.
  135         (e)(d) “Offender” means a person accused of a sexual
  136  offense in violation of a provision of this chapter.
  137         (f)(e) “Physically helpless” means unconscious, asleep, or
  138  for any other reason physically unable to communicate
  139  unwillingness to an act.
  140         (h)(f) “Retaliation” includes, but is not limited to,
  141  threats of future physical punishment, kidnapping, false
  142  imprisonment or forcible confinement, or extortion.
  143         (i)(g) “Serious personal injury” means great bodily harm or
  144  pain, permanent disability, or permanent disfigurement.
  145         (j)(h) “Sexual battery” means oral, anal, or female genital
  146  vaginal penetration by, or union with, the sexual organ of
  147  another or the anal or female genital vaginal penetration of
  148  another by any other object; however, sexual battery does not
  149  include an act done for a bona fide medical purpose.
  150         (k)(i) “Victim” means a person who has been the object of a
  151  sexual offense.
  152         (g)(j) “Physically incapacitated” means bodily impaired or
  153  handicapped and substantially limited in ability to resist or
  154  flee.
  155         (3) A person who commits sexual battery upon a person 12
  156  years of age or older, without that person’s consent, and in the
  157  process thereof:
  158         (a) Uses or threatens to use a deadly weapon; or
  159         (b) Uses or threatens to use actual physical force likely
  160  to cause serious personal injury or death,
  161  
  162  commits a life felony, punishable as provided in s. 775.082, s.
  163  775.083, s. 775.084, or s. 794.0115.
  164         (8) Without regard to the willingness or consent of the
  165  victim, which is not a defense to prosecution under this
  166  subsection, a person who is in a position of familial or
  167  custodial authority to a person less than 18 years of age and
  168  who:
  169         (a) Solicits that person to engage in any act which would
  170  constitute sexual battery under paragraph (1)(h) commits a
  171  felony of the third degree, punishable as provided in s.
  172  775.082, s. 775.083, or s. 775.084.
  173         (b) Engages in any act with that person while the person is
  174  12 years of age or older but younger than 18 years of age which
  175  constitutes sexual battery under paragraph (1)(h) commits a
  176  felony of the first degree, punishable by a term of years not
  177  exceeding life or as provided in s. 775.082, s. 775.083, or s.
  178  775.084.
  179         (c) Engages in any act with that person while the person is
  180  less than 12 years of age which constitutes sexual battery under
  181  paragraph (1)(h), or in an attempt to commit sexual battery
  182  injures the sexual organs of such person commits a capital or
  183  life felony, punishable pursuant to subsection (2).
  184         Section 7. Subsection (1) of section 794.05, Florida
  185  Statutes, is amended to read:
  186         794.05 Unlawful sexual activity with certain minors.—
  187         (1) A person 24 years of age or older who engages in sexual
  188  activity with a person 16 or 17 years of age commits a felony of
  189  the second degree, punishable as provided in s. 775.082, s.
  190  775.083, or s. 775.084. As used in this section, “sexual
  191  activity” means oral, anal, or female genital vaginal
  192  penetration by, or union with, the sexual organ of another or
  193  the anal or female genital vaginal penetration of another by any
  194  other object; however, sexual activity does not include an act
  195  done for a bona fide medical purpose.
  196         Section 8. Paragraph (d) of subsection (1) of section
  197  796.07, Florida Statutes, is amended to read:
  198         796.07 Prohibiting prostitution and related acts.—
  199         (1) As used in this section:
  200         (d) “Sexual activity” means oral, anal, or female genital
  201  vaginal penetration by, or union with, the sexual organ of
  202  another; anal or female genital vaginal penetration of another
  203  by any other object; or the handling or fondling of the sexual
  204  organ of another for the purpose of masturbation; however, the
  205  term does not include acts done for bona fide medical purposes.
  206         Section 9. Paragraph (a) of subsection (1) of section
  207  800.04, Florida Statutes, is amended to read:
  208         800.04 Lewd or lascivious offenses committed upon or in the
  209  presence of persons less than 16 years of age.—
  210         (1) DEFINITIONS.—As used in this section:
  211         (a) “Sexual activity” means the oral, anal, or female
  212  genital vaginal penetration by, or union with, the sexual organ
  213  of another or the anal or female genital vaginal penetration of
  214  another by any other object; however, sexual activity does not
  215  include an act done for a bona fide medical purpose.
  216         Section 10. Section 800.06, Florida Statutes, is created to
  217  read:
  218         800.06 Lewd or lascivious offenses committed upon persons
  219  16 years of age or older.—
  220         (1) A person who intentionally touches in a lewd or
  221  lascivious manner, and without consent, the breasts, genitals,
  222  genital area, or buttocks, or the clothing covering them, of a
  223  person 16 years of age or older, or forces a person 16 years of
  224  age or older to so touch the perpetrator, commits lewd or
  225  lascivious molestation of a person 16 years of age or older.
  226         (2) A person who violates subsection (1) commits a felony
  227  of the third degree, punishable as provided in s. 775.082, s.
  228  775.083, or s. 775.084.
  229         Section 11. Subsection (1) of section 825.1025, Florida
  230  Statutes, is amended to read:
  231         825.1025 Lewd or lascivious offenses committed upon or in
  232  the presence of an elderly person or disabled person.—
  233         (1) As used in this section, the term “sexual activity”
  234  means the oral, anal, or female genital vaginal penetration by,
  235  or union with, the sexual organ of another or the anal or female
  236  genital vaginal penetration of another by any other object;
  237  however, sexual activity does not include an act done for a bona
  238  fide medical purpose.
  239         Section 12. Paragraphs (f) and (g) of subsection (1) of
  240  section 827.071, Florida Statutes, are amended to read:
  241         827.071 Sexual performance by a child; penalties.—
  242         (1) As used in this section, the following definitions
  243  shall apply:
  244         (f) “Sexual battery” means oral, anal, or female genital
  245  vaginal penetration by, or union with, the sexual organ of
  246  another or the anal or female genital vaginal penetration of
  247  another by any other object; however, “sexual battery” does not
  248  include an act done for a bona fide medical purpose.
  249         (g) “Sexual bestiality” means any sexual act between a
  250  person and an animal involving the sex organ of the one and the
  251  mouth, anus, or female genitals vagina of the other.
  252         Section 13. Subsections (14) and (15) of section 847.001,
  253  Florida Statutes, are amended to read:
  254         847.001 Definitions.—As used in this chapter, the term:
  255         (14) “Sexual battery” means oral, anal, or female genital
  256  vaginal penetration by, or union with, the sexual organ of
  257  another or the anal or female genital vaginal penetration of
  258  another by any other object; however, “sexual battery” does not
  259  include an act done for a bona fide medical purpose.
  260         (15) “Sexual bestiality” means any sexual act, actual or
  261  simulated, between a person and an animal involving the sex
  262  organ of the one and the mouth, anus, or female genitals vagina
  263  of the other.
  264         Section 14. Subsection (1) of section 872.06, Florida
  265  Statutes, is amended to read:
  266         872.06 Abuse of a dead human body; penalty.—
  267         (1) As used in this section, the term “sexual abuse” means:
  268         (a) Anal or female genital vaginal penetration of a dead
  269  human body by the sexual organ of a person or by any other
  270  object;
  271         (b) Contact or union of the penis, female genitals vagina,
  272  or anus of a person with the mouth, penis, female genitals
  273  vagina, or anus of a dead human body; or
  274         (c) Contact or union of a person’s mouth with the penis,
  275  female genitals vagina, or anus of a dead human body.
  276         Section 15. Paragraph (b) of subsection (3) of section
  277  944.35, Florida Statutes, is amended to read:
  278         944.35 Authorized use of force; malicious battery and
  279  sexual misconduct prohibited; reporting required; penalties.—
  280         (3)(b)1. As used in this paragraph, the term “sexual
  281  misconduct” means the oral, anal, or female genital vaginal
  282  penetration by, or union with, the sexual organ of another or
  283  the anal or female genital vaginal penetration of another by any
  284  other object, but does not include an act done for a bona fide
  285  medical purpose or an internal search conducted in the lawful
  286  performance of the employee’s duty.
  287         2. Any employee of the department or a private correctional
  288  facility as defined in s. 944.710 who engages in sexual
  289  misconduct with an inmate or an offender supervised by the
  290  department in the community, without committing the crime of
  291  sexual battery, commits a felony of the third degree, punishable
  292  as provided in s. 775.082, s. 775.083, or s. 775.084.
  293         3. The consent of the inmate or offender supervised by the
  294  department in the community to any act of sexual misconduct may
  295  not be raised as a defense to a prosecution under this
  296  paragraph.
  297         4. This paragraph does not apply to any employee of the
  298  department or any employee of a private correctional facility
  299  who is legally married to an inmate or an offender supervised by
  300  the department in the community, nor does it apply to any
  301  employee who has no knowledge, and would have no reason to
  302  believe, that the person with whom the employee has engaged in
  303  sexual misconduct is an inmate or an offender under community
  304  supervision of the department.
  305         Section 16. Subsection (2) of section 951.27, Florida
  306  Statutes, is amended to read:
  307         951.27 Blood tests of inmates.—
  308         (2) Except as otherwise provided in this subsection,
  309  serologic blood test results obtained pursuant to subsection (1)
  310  are confidential and exempt from the provisions of s. 119.07(1)
  311  and s. 24(a), Art. I of the State Constitution. However, such
  312  results may be provided to employees or officers of the sheriff
  313  or chief correctional officer who are responsible for the
  314  custody and care of the affected inmate and have a need to know
  315  such information, and as provided in ss. 775.0877 and 960.003.
  316  In addition, upon request of the victim or the victim’s legal
  317  guardian, or the parent or legal guardian of the victim if the
  318  victim is a minor, the results of any HIV test performed on an
  319  inmate who has been arrested for any sexual offense involving
  320  oral, anal, or female genital vaginal penetration by, or union
  321  with, the sexual organ of another, must shall be disclosed to
  322  the victim or the victim’s legal guardian, or to the parent or
  323  legal guardian of the victim if the victim is a minor. In such
  324  cases, the county or municipal detention facility shall furnish
  325  the test results to the Department of Health, which is
  326  responsible for disclosing the results to public health agencies
  327  as provided in s. 775.0877 and to the victim or the victim’s
  328  legal guardian, or the parent or legal guardian of the victim if
  329  the victim is a minor, as provided in s. 960.003(3).
  330         Section 17. Subsection (10) of section 395.0197, Florida
  331  Statutes, is amended to read:
  332         395.0197 Internal risk management program.—
  333         (10) Any witness who witnessed or who possesses actual
  334  knowledge of the act that is the basis of an allegation of
  335  sexual abuse shall:
  336         (a) Notify the local police; and
  337         (b) Notify the hospital risk manager and the administrator.
  338  
  339  For purposes of this subsection, “sexual abuse” means acts of a
  340  sexual nature committed for the sexual gratification of anyone
  341  upon, or in the presence of, a vulnerable adult, without the
  342  vulnerable adult’s informed consent, or a minor. “Sexual abuse”
  343  includes, but is not limited to, the acts defined in s.
  344  794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
  345  vulnerable adult’s or minor’s sexual organs, or the use of the
  346  vulnerable adult or minor to solicit for or engage in
  347  prostitution or sexual performance. “Sexual abuse” does not
  348  include any act intended for a valid medical purpose or any act
  349  which may reasonably be construed to be a normal caregiving
  350  action.
  351         Section 18. Subsection (26) of section 415.102, Florida
  352  Statutes, is amended to read:
  353         415.102 Definitions of terms used in ss. 415.101-415.113.
  354  As used in ss. 415.101-415.113, the term:
  355         (26) “Sexual abuse” means acts of a sexual nature committed
  356  in the presence of a vulnerable adult without that person’s
  357  informed consent. “Sexual abuse” includes, but is not limited
  358  to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
  359  fondling, exposure of a vulnerable adult’s sexual organs, or the
  360  use of a vulnerable adult to solicit for or engage in
  361  prostitution or sexual performance. “Sexual abuse” does not
  362  include any act intended for a valid medical purpose or any act
  363  that may reasonably be construed to be normal caregiving action
  364  or appropriate display of affection.
  365         Section 19. Subsection (1) of section 847.0141, Florida
  366  Statutes, is amended to read:
  367         847.0141 Sexting; prohibited acts; penalties.—
  368         (1) A minor commits the offense of sexting if he or she
  369  knowingly:
  370         (a) Uses a computer, or any other device capable of
  371  electronic data transmission or distribution, to transmit or
  372  distribute to another minor any photograph or video of any
  373  person which depicts nudity, as defined in s. 847.001(9), and is
  374  harmful to minors, as those terms are defined in s. 847.001 s.
  375  847.001(6).
  376         (b) Possesses a photograph or video of any person that was
  377  transmitted or distributed by another minor which depicts
  378  nudity, as defined in s. 847.001(9), and is harmful to minors,
  379  as those terms are defined in s. 847.001 s. 847.001(6). A minor
  380  does not violate this paragraph if all of the following apply:
  381         1. The minor did not solicit the photograph or video.
  382         2. The minor took reasonable steps to report the photograph
  383  or video to the minor’s legal guardian or to a school or law
  384  enforcement official.
  385         3. The minor did not transmit or distribute the photograph
  386  or video to a third party.
  387         Section 20. This act shall take effect October 1, 2022.