CS for CS for SB 692                             First Engrossed
       
       
       
       
       
       
       
       
       2022692e1
       
    1                        A bill to be entitled                      
    2         An act relating to sexual offenses definitions;
    3         amending s. 365.161, F.S.; defining the term “female
    4         genitals” and revising the definitions of the terms
    5         “sexual battery” and “sexual bestiality”; amending s.
    6         491.0112, F.S.; defining the term “female genitals”
    7         and revising the definition of the term “sexual
    8         misconduct”; amending s. 775.0847, F.S.; defining the
    9         term “female genitals” and revising the definitions of
   10         the terms “sexual battery” and “sexual bestiality”;
   11         amending s. 794.011, F.S.; defining the term “female
   12         genitals”; revising the definition of the term “sexual
   13         battery”; amending ss. 794.05, 796.07, 800.04, and
   14         825.1025, F.S.; defining the term “female genitals”
   15         and revising the definition of the term “sexual
   16         activity”; amending ss. 827.071 and 847.001, F.S.;
   17         defining the term “female genitals” and revising the
   18         definitions of the terms “sexual battery” and “sexual
   19         bestiality”; amending s. 872.06, F.S.; defining the
   20         term “female genitals” and revising the definition of
   21         the term “sexual abuse”; amending s. 944.35, F.S.;
   22         defining the term “female genitals” and revising the
   23         definition of the term “sexual misconduct”; amending
   24         s. 951.27, F.S.; requiring that HIV test results
   25         performed on inmates arrested for sexual offenses
   26         involving female genital penetration be disclosed
   27         under certain circumstances; defining the term “female
   28         genitals”; amending ss. 288.1254, 395.0197, 415.102,
   29         and 847.0141, F.S.; conforming cross-references;
   30         providing an effective date.
   31          
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Subsection (1) of section 365.161, Florida
   35  Statutes, is amended to read:
   36         365.161 Prohibition of certain obscene telephone
   37  communications; penalty.—
   38         (1) For purposes of this section, the term:
   39         (a)(b) “Deviate sexual intercourse” means sexual conduct
   40  between persons consisting of contact between the penis and the
   41  anus, the mouth and the penis, or the mouth and the vulva.
   42         (b) “Female genitals” includes the labia minora, labia
   43  majora, clitoris, vulva, hymen, and vagina.
   44         (c)(a) “Obscene” means that status of a communication
   45  which:
   46         1. The average person applying contemporary community
   47  standards would find, taken as a whole, appeals to the prurient
   48  interests;
   49         2. Describes, in a patently offensive way, deviate sexual
   50  intercourse, sadomasochistic abuse, sexual battery, bestiality,
   51  sexual conduct, or sexual excitement; and
   52         3. Taken as a whole, lacks serious literary, artistic,
   53  political, or scientific value.
   54         (d)(c) “Sadomasochistic abuse” means flagellation or
   55  torture by or upon a person, or the condition of being fettered,
   56  bound, or otherwise physically restrained, for the purpose of
   57  deriving sexual satisfaction from inflicting harm on another or
   58  receiving such harm oneself.
   59         (e)(d) “Sexual battery” means oral, anal, or female genital
   60  vaginal penetration by, or union with, the sexual organ of
   61  another or the anal or female genital vaginal penetration of
   62  another by any other object.
   63         (f)(e) “Sexual bestiality” means any sexual act between a
   64  person and an animal involving the sex organ of the one and the
   65  mouth, anus, or female genitals vagina of the other.
   66         (g)(f) “Sexual conduct” means actual or simulated sexual
   67  intercourse, deviate sexual intercourse, sexual bestiality,
   68  masturbation, or sadomasochistic abuse; or any act or conduct
   69  which constitutes sexual battery.
   70         (h)(g) “Sexual excitement” means the condition of the human
   71  male or female genitals when in a state of sexual stimulation or
   72  arousal.
   73         Section 2. Subsection (4) of section 491.0112, Florida
   74  Statutes, is amended to read:
   75         491.0112 Sexual misconduct by a psychotherapist;
   76  penalties.—
   77         (4) For the purposes of this section, the term:
   78         (a)(d) “Client” means a person to whom the services of a
   79  psychotherapist are provided.
   80         (b) “Female genitals” includes the labia minora, labia
   81  majora, clitoris, vulva, hymen, and vagina.
   82         (c)(a)The term “Psychotherapist” means any person licensed
   83  pursuant to chapter 458, chapter 459, part I of chapter 464,
   84  chapter 490, or chapter 491, or any other person who provides or
   85  purports to provide treatment, diagnosis, assessment,
   86  evaluation, or counseling of mental or emotional illness,
   87  symptom, or condition.
   88         (d)(c) “Sexual misconduct” means the oral, anal, or female
   89  genital vaginal penetration of another by, or contact with, the
   90  sexual organ of another or the anal or female genital vaginal
   91  penetration of another by any object.
   92         (e)(b) “Therapeutic deception” means a representation to
   93  the client that sexual contact by the psychotherapist is
   94  consistent with or part of the treatment of the client.
   95         Section 3. Paragraphs (c) through (f) of subsection (1) of
   96  section 775.0847, Florida Statutes, are redesignated as
   97  paragraphs (d) through (g), respectively, a new paragraph (c) is
   98  added to that subsection, and present paragraphs (d) and (e) of
   99  that subsection are amended, to read:
  100         775.0847 Possession or promotion of certain images of child
  101  pornography; reclassification.—
  102         (1) For purposes of this section:
  103         (c) “Female genitals” includes the labia minora, labia
  104  majora, clitoris, vulva, hymen, and vagina.
  105         (e)(d) “Sexual battery” means oral, anal, or female genital
  106  vaginal penetration by, or union with, the sexual organ of
  107  another or the anal or female genital vaginal penetration of
  108  another by any other object; however, sexual battery does not
  109  include an act done for a bona fide medical purpose.
  110         (f)(e) “Sexual bestiality” means any sexual act, actual or
  111  simulated, between a person and an animal involving the sex
  112  organ of the one and the mouth, anus, or female genitals vagina
  113  of the other.
  114  
  115  For purposes of sentencing under chapter 921 and determining
  116  incentive gain-time eligibility under chapter 944, a felony
  117  offense that is reclassified under this section is ranked one
  118  level above the ranking under s. 921.0022 or s. 921.0023 of the
  119  offense committed.
  120         Section 4. Subsections (1), (3), and (8) of section
  121  794.011, Florida Statutes, are amended to read:
  122         794.011 Sexual battery.—
  123         (1) As used in this chapter:
  124         (a) “Consent” means intelligent, knowing, and voluntary
  125  consent and does not include coerced submission. “Consent” shall
  126  not be deemed or construed to mean the failure by the alleged
  127  victim to offer physical resistance to the offender.
  128         (b) “Female genitals” includes the labia minora, labia
  129  majora, clitoris, vulva, hymen, and vagina.
  130         (c)(b) “Mentally defective” means a mental disease or
  131  defect which renders a person temporarily or permanently
  132  incapable of appraising the nature of his or her conduct.
  133         (d)(c) “Mentally incapacitated” means temporarily incapable
  134  of appraising or controlling a person’s own conduct due to the
  135  influence of a narcotic, anesthetic, or intoxicating substance
  136  administered without his or her consent or due to any other act
  137  committed upon that person without his or her consent.
  138         (e)(d) “Offender” means a person accused of a sexual
  139  offense in violation of a provision of this chapter.
  140         (f)(e) “Physically helpless” means unconscious, asleep, or
  141  for any other reason physically unable to communicate
  142  unwillingness to an act.
  143         (g)(j) “Physically incapacitated” means bodily impaired or
  144  handicapped and substantially limited in ability to resist or
  145  flee.
  146         (h)(f) “Retaliation” includes, but is not limited to,
  147  threats of future physical punishment, kidnapping, false
  148  imprisonment or forcible confinement, or extortion.
  149         (i)(g) “Serious personal injury” means great bodily harm or
  150  pain, permanent disability, or permanent disfigurement.
  151         (j)(h) “Sexual battery” means oral, anal, or female genital
  152  vaginal penetration by, or union with, the sexual organ of
  153  another or the anal or female genital vaginal penetration of
  154  another by any other object; however, sexual battery does not
  155  include an act done for a bona fide medical purpose.
  156         (k)(i) “Victim” means a person who has been the object of a
  157  sexual offense.
  158         (3) A person who commits sexual battery upon a person 12
  159  years of age or older, without that person’s consent, and in the
  160  process thereof:
  161         (a) Uses or threatens to use a deadly weapon; or
  162         (b) Uses actual physical force likely to cause serious
  163  personal injury
  164  
  165  commits a life felony, punishable as provided in s. 775.082, s.
  166  775.083, s. 775.084, or s. 794.0115.
  167         (8) Without regard to the willingness or consent of the
  168  victim, which is not a defense to prosecution under this
  169  subsection, a person who is in a position of familial or
  170  custodial authority to a person less than 18 years of age and
  171  who:
  172         (a) Solicits that person to engage in any act which would
  173  constitute sexual battery under paragraph (1)(h) commits a
  174  felony of the third degree, punishable as provided in s.
  175  775.082, s. 775.083, or s. 775.084.
  176         (b) Engages in any act with that person while the person is
  177  12 years of age or older but younger than 18 years of age which
  178  constitutes sexual battery under paragraph (1)(h) commits a
  179  felony of the first degree, punishable by a term of years not
  180  exceeding life or as provided in s. 775.082, s. 775.083, or s.
  181  775.084.
  182         (c) Engages in any act with that person while the person is
  183  less than 12 years of age which constitutes sexual battery under
  184  paragraph (1)(h), or in an attempt to commit sexual battery
  185  injures the sexual organs of such person commits a capital or
  186  life felony, punishable pursuant to subsection (2).
  187         Section 5. Subsections (2) through (4) of section 794.05,
  188  Florida Statutes, are renumbered as subsections (3) through (5),
  189  respectively, and subsection (1) of that section is amended to
  190  read:
  191         794.05 Unlawful sexual activity with certain minors.—
  192         (1) A person 24 years of age or older who engages in sexual
  193  activity with a person 16 or 17 years of age commits a felony of
  194  the second degree, punishable as provided in s. 775.082, s.
  195  775.083, or s. 775.084.
  196         (2) As used in this section, the term:
  197         (a) “Female genitals” includes the labia minora, labia
  198  majora, clitoris, vulva, hymen, and vagina.
  199         (b) “Sexual activity” means oral, anal, or female genital
  200  vaginal penetration by, or union with, the sexual organ of
  201  another or the anal or female genital vaginal penetration of
  202  another by any other object; however, sexual activity does not
  203  include an act done for a bona fide medical purpose.
  204         Section 6. Paragraphs (a) through (d) of subsection (1) of
  205  section 796.07, Florida Statutes, are redesignated as paragraphs
  206  (b) through (e), respectively, a new paragraph (a) is added to
  207  that subsection, and present paragraph (d) of that subsection is
  208  amended, to read:
  209         796.07 Prohibiting prostitution and related acts.—
  210         (1) As used in this section:
  211         (a) “Female genitals” includes the labia minora, labia
  212  majora, clitoris, vulva, hymen, and vagina.
  213         (e)(d) “Sexual activity” means oral, anal, or female
  214  genital vaginal penetration by, or union with, the sexual organ
  215  of another; anal or female genital vaginal penetration of
  216  another by any other object; or the handling or fondling of the
  217  sexual organ of another for the purpose of masturbation;
  218  however, the term does not include acts done for bona fide
  219  medical purposes.
  220         Section 7. Subsection (1) of section 800.04, Florida
  221  Statutes, is amended to read:
  222         800.04 Lewd or lascivious offenses committed upon or in the
  223  presence of persons less than 16 years of age.—
  224         (1) DEFINITIONS.—As used in this section:
  225         (a)(c) “Coercion” means the use of exploitation, bribes,
  226  threats of force, or intimidation to gain cooperation or
  227  compliance.
  228         (b) “Consent” means intelligent, knowing, and voluntary
  229  consent, and does not include submission by coercion.
  230         (c) “Female genitals” includes the labia minora, labia
  231  majora, clitoris, vulva, hymen, and vagina.
  232         (d)(a) “Sexual activity” means the oral, anal, or female
  233  genital vaginal penetration by, or union with, the sexual organ
  234  of another or the anal or female genital vaginal penetration of
  235  another by any other object; however, sexual activity does not
  236  include an act done for a bona fide medical purpose.
  237         (e)(d) “Victim” means a person upon whom an offense
  238  described in this section was committed or attempted or a person
  239  who has reported a violation of this section to a law
  240  enforcement officer.
  241         Section 8. Subsection (1) of section 825.1025, Florida
  242  Statutes, is amended to read:
  243         825.1025 Lewd or lascivious offenses committed upon or in
  244  the presence of an elderly person or disabled person.—
  245         (1) As used in this section, the term:
  246         (a) “Female genitals” includes the labia minora, labia
  247  majora, clitoris, vulva, hymen, and vagina.
  248         (b) “Sexual activity” means the oral, anal, or female
  249  genital vaginal penetration by, or union with, the sexual organ
  250  of another or the anal or female genital vaginal penetration of
  251  another by any other object; however, sexual activity does not
  252  include an act done for a bona fide medical purpose.
  253         Section 9. Paragraphs (b) through (j) of subsection (1) of
  254  section 827.071, Florida Statutes, are redesignated as
  255  paragraphs (c) through (k), respectively, a new paragraph (b) is
  256  added to that subsection, and present paragraphs (f), (g), and
  257  (j) of that subsection are amended, to read:
  258         827.071 Sexual performance by a child; penalties.—
  259         (1) As used in this section, the following definitions
  260  shall apply:
  261         (b) “Female genitals” includes the labia minora, labia
  262  majora, clitoris, vulva, hymen, and vagina.
  263         (g)(f) “Sexual battery” means oral, anal, or female genital
  264  vaginal penetration by, or union with, the sexual organ of
  265  another or the anal or female genital vaginal penetration of
  266  another by any other object; however, “sexual battery” does not
  267  include an act done for a bona fide medical purpose.
  268         (h)(g) “Sexual bestiality” means any sexual act between a
  269  person and an animal involving the sex organ of the one and the
  270  mouth, anus, or female genitals vagina of the other.
  271         (k)(j) “Simulated” means the explicit depiction of conduct
  272  set forth in paragraph (i) (h) which creates the appearance of
  273  such conduct and which exhibits any uncovered portion of the
  274  breasts, genitals, or buttocks.
  275         Section 10. Subsections (6) through (20) of section
  276  847.001, Florida Statutes, are renumbered as subsections (7)
  277  through (21), respectively, a new subsection (6) is added to
  278  that section, and present subsections (14), (15), and (19) of
  279  that section are amended, to read:
  280         847.001 Definitions.—As used in this chapter, the term:
  281         (6) “Female genitals” includes the labia minora, labia
  282  majora, clitoris, vulva, hymen, and vagina.
  283         (15)(14) “Sexual battery” means oral, anal, or female
  284  genital vaginal penetration by, or union with, the sexual organ
  285  of another or the anal or female genital vaginal penetration of
  286  another by any other object; however, “sexual battery” does not
  287  include an act done for a bona fide medical purpose.
  288         (16)(15) “Sexual bestiality” means any sexual act, actual
  289  or simulated, between a person and an animal involving the sex
  290  organ of the one and the mouth, anus, or female genitals vagina
  291  of the other.
  292         (20)(19) “Simulated” means the explicit depiction of
  293  conduct described in subsection (17) (16) which creates the
  294  appearance of such conduct and which exhibits any uncovered
  295  portion of the breasts, genitals, or buttocks.
  296         Section 11. Section 872.06, Florida Statutes, is amended to
  297  read:
  298         872.06 Abuse of a dead human body; penalty.—
  299         (1) As used in this section, the term:
  300         (a) “Female genitals” includes the labia minora, labia
  301  majora, clitoris, vulva, hymen, and vagina.
  302         (b) “Sexual abuse” means:
  303         1.(a) Anal or female genital vaginal penetration of a dead
  304  human body by the sexual organ of a person or by any other
  305  object;
  306         2.(b) Contact or union of the penis, female genitals
  307  vagina, or anus of a person with the mouth, penis, female
  308  genitals vagina, or anus of a dead human body; or
  309         3.(c) Contact or union of a person’s mouth with the penis,
  310  female genitals vagina, or anus of a dead human body.
  311         (2) A person who mutilates, commits sexual abuse upon, or
  312  otherwise grossly abuses a dead human body commits a felony of
  313  the second degree, punishable as provided in s. 775.082, s.
  314  775.083, or s. 775.084. Any act done for a bona fide medical
  315  purpose or for any other lawful purpose does not under any
  316  circumstance constitute a violation of this section.
  317         Section 12. Paragraph (b) of subsection (3) of section
  318  944.35, Florida Statutes, is amended to read:
  319         944.35 Authorized use of force; malicious battery and
  320  sexual misconduct prohibited; reporting required; penalties.—
  321         (3)
  322         (b)1. As used in this paragraph, the term:
  323         a. “Female genitals” includes the labia minora, labia
  324  majora, clitoris, vulva, hymen, and vagina.
  325         b. “Sexual misconduct” means the oral, anal, or female
  326  genital vaginal penetration by, or union with, the sexual organ
  327  of another or the anal or female genital vaginal penetration of
  328  another by any other object, but does not include an act done
  329  for a bona fide medical purpose or an internal search conducted
  330  in the lawful performance of the employee’s duty.
  331         2. Any employee of the department or a private correctional
  332  facility as defined in s. 944.710 who engages in sexual
  333  misconduct with an inmate or an offender supervised by the
  334  department in the community, without committing the crime of
  335  sexual battery, commits a felony of the third degree, punishable
  336  as provided in s. 775.082, s. 775.083, or s. 775.084.
  337         3. The consent of the inmate or offender supervised by the
  338  department in the community to any act of sexual misconduct may
  339  not be raised as a defense to a prosecution under this
  340  paragraph.
  341         4. This paragraph does not apply to any employee of the
  342  department or any employee of a private correctional facility
  343  who is legally married to an inmate or an offender supervised by
  344  the department in the community, nor does it apply to any
  345  employee who has no knowledge, and would have no reason to
  346  believe, that the person with whom the employee has engaged in
  347  sexual misconduct is an inmate or an offender under community
  348  supervision of the department.
  349         Section 13. Subsection (2) of section 951.27, Florida
  350  Statutes, is amended to read:
  351         951.27 Blood tests of inmates.—
  352         (2) Except as otherwise provided in this subsection,
  353  serologic blood test results obtained pursuant to subsection (1)
  354  are confidential and exempt from the provisions of s. 119.07(1)
  355  and s. 24(a), Art. I of the State Constitution. However, such
  356  results may be provided to employees or officers of the sheriff
  357  or chief correctional officer who are responsible for the
  358  custody and care of the affected inmate and have a need to know
  359  such information, and as provided in ss. 775.0877 and 960.003.
  360  In addition, upon request of the victim or the victim’s legal
  361  guardian, or the parent or legal guardian of the victim if the
  362  victim is a minor, the results of any HIV test performed on an
  363  inmate who has been arrested for any sexual offense involving
  364  oral, anal, or female genital vaginal penetration by, or union
  365  with, the sexual organ of another, must shall be disclosed to
  366  the victim or the victim’s legal guardian, or to the parent or
  367  legal guardian of the victim if the victim is a minor. In such
  368  cases, the county or municipal detention facility shall furnish
  369  the test results to the Department of Health, which is
  370  responsible for disclosing the results to public health agencies
  371  as provided in s. 775.0877 and to the victim or the victim’s
  372  legal guardian, or the parent or legal guardian of the victim if
  373  the victim is a minor, as provided in s. 960.003(3). As used in
  374  this subsection, the term “female genitals” includes the labia
  375  minora, labia majora, clitoris, vulva, hymen, and vagina.
  376         Section 14. Paragraph (j) of subsection (1) of section
  377  288.1254, Florida Statutes, is amended to read:
  378         288.1254 Entertainment industry financial incentive
  379  program.—
  380         (1) DEFINITIONS.—As used in this section, the term:
  381         (j) “Qualified production” means a production in this state
  382  meeting the requirements of this section. The term does not
  383  include a production:
  384         1. In which, for the first 2 years of the incentive
  385  program, less than 50 percent, and thereafter, less than 60
  386  percent, of the positions that make up its production cast and
  387  below-the-line production crew, or, in the case of digital media
  388  projects, less than 75 percent of such positions, are filled by
  389  legal residents of this state, whose residency is demonstrated
  390  by a valid Florida driver license or other state-issued
  391  identification confirming residency, or students enrolled full
  392  time in a film-and-entertainment-related course of study at an
  393  institution of higher education in this state; or
  394         2. That contains obscene content as defined in s. 847.001
  395  s. 847.001(10).
  396         Section 15. Subsection (10) of section 395.0197, Florida
  397  Statutes, is amended to read:
  398         395.0197 Internal risk management program.—
  399         (10) Any witness who witnessed or who possesses actual
  400  knowledge of the act that is the basis of an allegation of
  401  sexual abuse shall:
  402         (a) Notify the local police; and
  403         (b) Notify the hospital risk manager and the administrator.
  404  
  405  For purposes of this subsection, “sexual abuse” means acts of a
  406  sexual nature committed for the sexual gratification of anyone
  407  upon, or in the presence of, a vulnerable adult, without the
  408  vulnerable adult’s informed consent, or a minor. “Sexual abuse”
  409  includes, but is not limited to, the acts defined in s.
  410  794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
  411  vulnerable adult’s or minor’s sexual organs, or the use of the
  412  vulnerable adult or minor to solicit for or engage in
  413  prostitution or sexual performance. “Sexual abuse” does not
  414  include any act intended for a valid medical purpose or any act
  415  which may reasonably be construed to be a normal caregiving
  416  action.
  417         Section 16. Subsection (26) of section 415.102, Florida
  418  Statutes, is amended to read:
  419         415.102 Definitions of terms used in ss. 415.101-415.113.
  420  As used in ss. 415.101-415.113, the term:
  421         (26) “Sexual abuse” means acts of a sexual nature committed
  422  in the presence of a vulnerable adult without that person’s
  423  informed consent. “Sexual abuse” includes, but is not limited
  424  to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
  425  fondling, exposure of a vulnerable adult’s sexual organs, or the
  426  use of a vulnerable adult to solicit for or engage in
  427  prostitution or sexual performance. “Sexual abuse” does not
  428  include any act intended for a valid medical purpose or any act
  429  that may reasonably be construed to be normal caregiving action
  430  or appropriate display of affection.
  431         Section 17. Subsection (1) of section 847.0141, Florida
  432  Statutes, is amended to read:
  433         847.0141 Sexting; prohibited acts; penalties.—
  434         (1) A minor commits the offense of sexting if he or she
  435  knowingly:
  436         (a) Uses a computer, or any other device capable of
  437  electronic data transmission or distribution, to transmit or
  438  distribute to another minor any photograph or video of any
  439  person which depicts nudity, as defined in s. 847.001 s.
  440  847.001(9), and is harmful to minors, as defined in s. 847.001
  441  s. 847.001(6).
  442         (b) Possesses a photograph or video of any person that was
  443  transmitted or distributed by another minor which depicts
  444  nudity, as defined in s. 847.001 s. 847.001(9), and is harmful
  445  to minors, as defined in s. 847.001 s. 847.001(6). A minor does
  446  not violate this paragraph if all of the following apply:
  447         1. The minor did not solicit the photograph or video.
  448         2. The minor took reasonable steps to report the photograph
  449  or video to the minor’s legal guardian or to a school or law
  450  enforcement official.
  451         3. The minor did not transmit or distribute the photograph
  452  or video to a third party.
  453         Section 18. This act shall take effect October 1, 2022.