Florida Senate - 2022                       CS for CS for SB 692
       
       
        
       By the Committees on Rules; and Criminal Justice; and Senators
       Stewart and Harrell
       
       
       
       
       595-03057-22                                           2022692c2
    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, 800.04, and 825.1025, F.S.; revising
   22         the definition of the term “sexual activity”; amending
   23         ss. 827.071 and 847.001, F.S.; revising the
   24         definitions of the terms “sexual battery” and “sexual
   25         bestiality”; amending s. 872.06, F.S.; revising the
   26         definition of the term “sexual abuse”; amending s.
   27         944.35, F.S.; revising the definition of the term
   28         “sexual misconduct”; amending s. 951.27, F.S.;
   29         requiring that HIV test results performed on inmates
   30         arrested for sexual offenses involving female genital
   31         penetration be disclosed under certain circumstances;
   32         amending ss. 395.0197, 415.102, and 847.0141, F.S.;
   33         conforming cross-references; providing an effective
   34         date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Paragraph (c) of subsection (2) of section
   39  90.404, Florida Statutes, is amended to read:
   40         90.404 Character evidence; when admissible.—
   41         (2) OTHER CRIMES, WRONGS, OR ACTS.—
   42         (c)1. In a criminal case in which the defendant is charged
   43  with a sexual offense, evidence of the defendant’s commission of
   44  other crimes, wrongs, or acts involving a sexual offense is
   45  admissible and may be considered for its bearing on any matter
   46  to which it is relevant.
   47         2. For the purposes of this paragraph, the term “sexual
   48  offense” means conduct proscribed by s. 787.025(2)(c), s.
   49  787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), s.
   50  794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
   51  former s. 796.035, s. 825.1025(2)(b), s. 827.071, s.
   52  847.0135(5), s. 847.0145, or s. 985.701(1).
   53         3. Substantial similarity is not required for admission of
   54  other crimes, wrongs, or acts when identity is not at issue.
   55         Section 2. Paragraphs (d) and (e) of subsection (1) of
   56  section 365.161, Florida Statutes, are amended to read:
   57         365.161 Prohibition of certain obscene telephone
   58  communications; penalty.—
   59         (1) For purposes of this section, the term:
   60         (d) “Sexual battery” means oral, anal, or female genital
   61  vaginal penetration by, or union with, the sexual organ of
   62  another or the anal or female genital vaginal penetration of
   63  another by any other object.
   64         (e) “Sexual bestiality” means any sexual act between a
   65  person and an animal involving the sex organ of the one and the
   66  mouth, anus, or female genitals vagina of the other.
   67         Section 3. Paragraph (c) of subsection (4) of section
   68  491.0112, Florida Statutes, is amended to read:
   69         491.0112 Sexual misconduct by a psychotherapist;
   70  penalties.—
   71         (4) For the purposes of this section:
   72         (c) “Sexual misconduct” means the oral, anal, or female
   73  genital vaginal penetration of another by, or contact with, the
   74  sexual organ of another or the anal or female genital vaginal
   75  penetration of another by any object.
   76         Section 4. Paragraphs (d) and (e) of subsection (1) of
   77  section 775.0847, Florida Statutes, are amended to read:
   78         775.0847 Possession or promotion of certain images of child
   79  pornography; reclassification.—
   80         (1) For purposes of this section:
   81         (d) “Sexual battery” means oral, anal, or female genital
   82  vaginal penetration by, or union with, the sexual organ of
   83  another or the anal or female genital vaginal penetration of
   84  another by any other object; however, sexual battery does not
   85  include an act done for a bona fide medical purpose.
   86         (e) “Sexual bestiality” means any sexual act, actual or
   87  simulated, between a person and an animal involving the sex
   88  organ of the one and the mouth, anus, or female genitals vagina
   89  of the other.
   90  
   91  For purposes of sentencing under chapter 921 and determining
   92  incentive gain-time eligibility under chapter 944, a felony
   93  offense that is reclassified under this section is ranked one
   94  level above the ranking under s. 921.0022 or s. 921.0023 of the
   95  offense committed.
   96         Section 5. Subsection (21) is added to section 775.15,
   97  Florida Statutes, to read:
   98         775.15 Time limitations; general time limitations;
   99  exceptions.—
  100         (21) In addition to the time periods prescribed in this
  101  section, a prosecution for sexual battery in violation of s.
  102  794.011, where the victim was unaware of the sexual battery due
  103  to the victim being mentally defective, mentally incapacitated,
  104  or physically helpless, may be commenced within 1 year after the
  105  date on which the victim obtains actual knowledge of the offense
  106  or the date on which the offense is reported to law enforcement,
  107  whichever occurs first. Any dissemination of a recording of such
  108  offense before the victim obtains actual knowledge thereof or
  109  before its confiscation by a law enforcement agency does not
  110  affect any provision of this subsection. This subsection applies
  111  to any offense that is not otherwise barred from prosecution on
  112  or before October 1, 2022.
  113         Section 6. Subsections (1), (3), and (8) of section
  114  794.011, Florida Statutes, are amended to read:
  115         794.011 Sexual battery.—
  116         (1) As used in this chapter:
  117         (a) “Consent” means intelligent, knowing, and voluntary
  118  consent and does not include coerced submission. “Consent” shall
  119  not be deemed or construed to mean the failure by the alleged
  120  victim to offer physical resistance to the offender.
  121         (b) “Female genitals” means the labia majora, labia minora,
  122  clitoris, vulva, hymen, and vagina.
  123         (c)(b) “Mentally defective” means a mental disease or
  124  defect which renders a person temporarily or permanently
  125  incapable of appraising the nature of his or her conduct.
  126         (d)(c) “Mentally incapacitated” means temporarily incapable
  127  of appraising or controlling a person’s own conduct due to the
  128  influence of a narcotic, anesthetic, or intoxicating substance
  129  administered without his or her consent or due to any other act
  130  committed upon that person without his or her consent.
  131         (e)(d) “Offender” means a person accused of a sexual
  132  offense in violation of a provision of this chapter.
  133         (f)(e) “Physically helpless” means unconscious, asleep, or
  134  for any other reason physically unable to communicate
  135  unwillingness to an act.
  136         (h)(f) “Retaliation” includes, but is not limited to,
  137  threats of future physical punishment, kidnapping, false
  138  imprisonment or forcible confinement, or extortion.
  139         (i)(g) “Serious personal injury” means great bodily harm or
  140  pain, permanent disability, or permanent disfigurement.
  141         (j)(h) “Sexual battery” means oral, anal, or female genital
  142  vaginal penetration by, or union with, the sexual organ of
  143  another or the anal or female genital vaginal penetration of
  144  another by any other object; however, sexual battery does not
  145  include an act done for a bona fide medical purpose.
  146         (k)(i) “Victim” means a person who has been the object of a
  147  sexual offense.
  148         (g)(j) “Physically incapacitated” means bodily impaired or
  149  handicapped and substantially limited in ability to resist or
  150  flee.
  151         (3) A person who commits sexual battery upon a person 12
  152  years of age or older, without that person’s consent, and in the
  153  process thereof:
  154         (a) Uses or threatens to use a deadly weapon; or
  155         (b) Uses or threatens to use actual physical force likely
  156  to cause serious personal injury or death,
  157  
  158  commits a life felony, punishable as provided in s. 775.082, s.
  159  775.083, s. 775.084, or s. 794.0115.
  160         (8) Without regard to the willingness or consent of the
  161  victim, which is not a defense to prosecution under this
  162  subsection, a person who is in a position of familial or
  163  custodial authority to a person less than 18 years of age and
  164  who:
  165         (a) Solicits that person to engage in any act which would
  166  constitute sexual battery under paragraph (1)(h) commits a
  167  felony of the third degree, punishable as provided in s.
  168  775.082, s. 775.083, or s. 775.084.
  169         (b) Engages in any act with that person while the person is
  170  12 years of age or older but younger than 18 years of age which
  171  constitutes sexual battery under paragraph (1)(h) commits a
  172  felony of the first degree, punishable by a term of years not
  173  exceeding life or as provided in s. 775.082, s. 775.083, or s.
  174  775.084.
  175         (c) Engages in any act with that person while the person is
  176  less than 12 years of age which constitutes sexual battery under
  177  paragraph (1)(h), or in an attempt to commit sexual battery
  178  injures the sexual organs of such person commits a capital or
  179  life felony, punishable pursuant to subsection (2).
  180         Section 7. Subsection (1) of section 794.05, Florida
  181  Statutes, is amended to read:
  182         794.05 Unlawful sexual activity with certain minors.—
  183         (1) A person 24 years of age or older who engages in sexual
  184  activity with a person 16 or 17 years of age commits a felony of
  185  the second degree, punishable as provided in s. 775.082, s.
  186  775.083, or s. 775.084. As used in this section, “sexual
  187  activity” means oral, anal, or female genital vaginal
  188  penetration by, or union with, the sexual organ of another or
  189  the anal or female genital vaginal penetration of another by any
  190  other object; however, sexual activity does not include an act
  191  done for a bona fide medical purpose.
  192         Section 8. Paragraph (d) of subsection (1) of section
  193  796.07, Florida Statutes, is amended to read:
  194         796.07 Prohibiting prostitution and related acts.—
  195         (1) As used in this section:
  196         (d) “Sexual activity” means oral, anal, or female genital
  197  vaginal penetration by, or union with, the sexual organ of
  198  another; anal or female genital vaginal penetration of another
  199  by any other object; or the handling or fondling of the sexual
  200  organ of another for the purpose of masturbation; however, the
  201  term does not include acts done for bona fide medical purposes.
  202         Section 9. Paragraph (a) of subsection (1) of section
  203  800.04, Florida Statutes, is amended to read:
  204         800.04 Lewd or lascivious offenses committed upon or in the
  205  presence of persons less than 16 years of age.—
  206         (1) DEFINITIONS.—As used in this section:
  207         (a) “Sexual activity” means the oral, anal, or female
  208  genital vaginal penetration by, or union with, the sexual organ
  209  of another or the anal or female genital vaginal penetration of
  210  another by any other object; however, sexual activity does not
  211  include an act done for a bona fide medical purpose.
  212         Section 10. Subsection (1) of section 825.1025, Florida
  213  Statutes, is amended to read:
  214         825.1025 Lewd or lascivious offenses committed upon or in
  215  the presence of an elderly person or disabled person.—
  216         (1) As used in this section, the term “sexual activity”
  217  means the oral, anal, or female genital vaginal penetration by,
  218  or union with, the sexual organ of another or the anal or female
  219  genital vaginal penetration of another by any other object;
  220  however, sexual activity does not include an act done for a bona
  221  fide medical purpose.
  222         Section 11. Paragraphs (f) and (g) of subsection (1) of
  223  section 827.071, Florida Statutes, are amended to read:
  224         827.071 Sexual performance by a child; penalties.—
  225         (1) As used in this section, the following definitions
  226  shall apply:
  227         (f) “Sexual battery” means oral, anal, or female genital
  228  vaginal penetration by, or union with, the sexual organ of
  229  another or the anal or female genital vaginal penetration of
  230  another by any other object; however, “sexual battery” does not
  231  include an act done for a bona fide medical purpose.
  232         (g) “Sexual bestiality” means any sexual act between a
  233  person and an animal involving the sex organ of the one and the
  234  mouth, anus, or female genitals vagina of the other.
  235         Section 12. Subsections (14) and (15) of section 847.001,
  236  Florida Statutes, are amended to read:
  237         847.001 Definitions.—As used in this chapter, the term:
  238         (14) “Sexual battery” means oral, anal, or female genital
  239  vaginal penetration by, or union with, the sexual organ of
  240  another or the anal or female genital vaginal penetration of
  241  another by any other object; however, “sexual battery” does not
  242  include an act done for a bona fide medical purpose.
  243         (15) “Sexual bestiality” means any sexual act, actual or
  244  simulated, between a person and an animal involving the sex
  245  organ of the one and the mouth, anus, or female genitals vagina
  246  of the other.
  247         Section 13. Subsection (1) of section 872.06, Florida
  248  Statutes, is amended to read:
  249         872.06 Abuse of a dead human body; penalty.—
  250         (1) As used in this section, the term “sexual abuse” means:
  251         (a) Anal or female genital vaginal penetration of a dead
  252  human body by the sexual organ of a person or by any other
  253  object;
  254         (b) Contact or union of the penis, female genitals vagina,
  255  or anus of a person with the mouth, penis, female genitals
  256  vagina, or anus of a dead human body; or
  257         (c) Contact or union of a person’s mouth with the penis,
  258  female genitals vagina, or anus of a dead human body.
  259         Section 14. Paragraph (b) of subsection (3) of section
  260  944.35, Florida Statutes, is amended to read:
  261         944.35 Authorized use of force; malicious battery and
  262  sexual misconduct prohibited; reporting required; penalties.—
  263         (3)(b)1. As used in this paragraph, the term “sexual
  264  misconduct” means the oral, anal, or female genital vaginal
  265  penetration by, or union with, the sexual organ of another or
  266  the anal or female genital vaginal penetration of another by any
  267  other object, but does not include an act done for a bona fide
  268  medical purpose or an internal search conducted in the lawful
  269  performance of the employee’s duty.
  270         2. Any employee of the department or a private correctional
  271  facility as defined in s. 944.710 who engages in sexual
  272  misconduct with an inmate or an offender supervised by the
  273  department in the community, without committing the crime of
  274  sexual battery, commits a felony of the third degree, punishable
  275  as provided in s. 775.082, s. 775.083, or s. 775.084.
  276         3. The consent of the inmate or offender supervised by the
  277  department in the community to any act of sexual misconduct may
  278  not be raised as a defense to a prosecution under this
  279  paragraph.
  280         4. This paragraph does not apply to any employee of the
  281  department or any employee of a private correctional facility
  282  who is legally married to an inmate or an offender supervised by
  283  the department in the community, nor does it apply to any
  284  employee who has no knowledge, and would have no reason to
  285  believe, that the person with whom the employee has engaged in
  286  sexual misconduct is an inmate or an offender under community
  287  supervision of the department.
  288         Section 15. Subsection (2) of section 951.27, Florida
  289  Statutes, is amended to read:
  290         951.27 Blood tests of inmates.—
  291         (2) Except as otherwise provided in this subsection,
  292  serologic blood test results obtained pursuant to subsection (1)
  293  are confidential and exempt from the provisions of s. 119.07(1)
  294  and s. 24(a), Art. I of the State Constitution. However, such
  295  results may be provided to employees or officers of the sheriff
  296  or chief correctional officer who are responsible for the
  297  custody and care of the affected inmate and have a need to know
  298  such information, and as provided in ss. 775.0877 and 960.003.
  299  In addition, upon request of the victim or the victim’s legal
  300  guardian, or the parent or legal guardian of the victim if the
  301  victim is a minor, the results of any HIV test performed on an
  302  inmate who has been arrested for any sexual offense involving
  303  oral, anal, or female genital vaginal penetration by, or union
  304  with, the sexual organ of another, must shall be disclosed to
  305  the victim or the victim’s legal guardian, or to the parent or
  306  legal guardian of the victim if the victim is a minor. In such
  307  cases, the county or municipal detention facility shall furnish
  308  the test results to the Department of Health, which is
  309  responsible for disclosing the results to public health agencies
  310  as provided in s. 775.0877 and to the victim or the victim’s
  311  legal guardian, or the parent or legal guardian of the victim if
  312  the victim is a minor, as provided in s. 960.003(3).
  313         Section 16. Subsection (10) of section 395.0197, Florida
  314  Statutes, is amended to read:
  315         395.0197 Internal risk management program.—
  316         (10) Any witness who witnessed or who possesses actual
  317  knowledge of the act that is the basis of an allegation of
  318  sexual abuse shall:
  319         (a) Notify the local police; and
  320         (b) Notify the hospital risk manager and the administrator.
  321  
  322  For purposes of this subsection, “sexual abuse” means acts of a
  323  sexual nature committed for the sexual gratification of anyone
  324  upon, or in the presence of, a vulnerable adult, without the
  325  vulnerable adult’s informed consent, or a minor. “Sexual abuse”
  326  includes, but is not limited to, the acts defined in s.
  327  794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
  328  vulnerable adult’s or minor’s sexual organs, or the use of the
  329  vulnerable adult or minor to solicit for or engage in
  330  prostitution or sexual performance. “Sexual abuse” does not
  331  include any act intended for a valid medical purpose or any act
  332  which may reasonably be construed to be a normal caregiving
  333  action.
  334         Section 17. Subsection (26) of section 415.102, Florida
  335  Statutes, is amended to read:
  336         415.102 Definitions of terms used in ss. 415.101-415.113.
  337  As used in ss. 415.101-415.113, the term:
  338         (26) “Sexual abuse” means acts of a sexual nature committed
  339  in the presence of a vulnerable adult without that person’s
  340  informed consent. “Sexual abuse” includes, but is not limited
  341  to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
  342  fondling, exposure of a vulnerable adult’s sexual organs, or the
  343  use of a vulnerable adult to solicit for or engage in
  344  prostitution or sexual performance. “Sexual abuse” does not
  345  include any act intended for a valid medical purpose or any act
  346  that may reasonably be construed to be normal caregiving action
  347  or appropriate display of affection.
  348         Section 18. Subsection (1) of section 847.0141, Florida
  349  Statutes, is amended to read:
  350         847.0141 Sexting; prohibited acts; penalties.—
  351         (1) A minor commits the offense of sexting if he or she
  352  knowingly:
  353         (a) Uses a computer, or any other device capable of
  354  electronic data transmission or distribution, to transmit or
  355  distribute to another minor any photograph or video of any
  356  person which depicts nudity, as defined in s. 847.001(9), and is
  357  harmful to minors, as those terms are defined in s. 847.001 s.
  358  847.001(6).
  359         (b) Possesses a photograph or video of any person that was
  360  transmitted or distributed by another minor which depicts
  361  nudity, as defined in s. 847.001(9), and is harmful to minors,
  362  as those terms are defined in s. 847.001 s. 847.001(6). A minor
  363  does not violate this paragraph if all of the following apply:
  364         1. The minor did not solicit the photograph or video.
  365         2. The minor took reasonable steps to report the photograph
  366  or video to the minor’s legal guardian or to a school or law
  367  enforcement official.
  368         3. The minor did not transmit or distribute the photograph
  369  or video to a third party.
  370         Section 19. This act shall take effect October 1, 2022.