Florida Senate - 2022 SB 878
By Senator Harrell
25-00888-22 2022878__
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 s. 872.06, F.S.; revising
28 the definition of the term “sexual abuse”; amending
29 ss. 827.071 and 847.001, F.S.; revising the
30 definitions of the terms “sexual battery” and “sexual
31 bestiality”; 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 and
37 415.102, F.S.; conforming cross-references; providing
38 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 assault 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.
115 Section 6. Subsections (1), (3), and (8) of section
116 794.011, Florida Statutes, are amended to read:
117 794.011 Sexual battery.—
118 (1) As used in this chapter:
119 (a) “Consent” means intelligent, knowing, and voluntary
120 consent and does not include coerced submission. “Consent” shall
121 not be deemed or construed to mean the failure by the alleged
122 victim to offer physical resistance to the offender.
123 (b) “Female genitals” means the labia majora, labia minora,
124 clitoris, vulva, hymen, and vagina.
125 (c)(b) “Mentally defective” means a mental disease or
126 defect which renders a person temporarily or permanently
127 incapable of appraising the nature of his or her conduct.
128 (d)(c) “Mentally incapacitated” means temporarily incapable
129 of appraising or controlling a person’s own conduct due to the
130 influence of a narcotic, anesthetic, or intoxicating substance
131 administered without his or her consent or due to any other act
132 committed upon that person without his or her consent.
133 (e)(d) “Offender” means a person accused of a sexual
134 offense in violation of a provision of this chapter.
135 (f)(e) “Physically helpless” means unconscious, asleep, or
136 for any other reason physically unable to communicate
137 unwillingness to an act.
138 (h)(f) “Retaliation” includes, but is not limited to,
139 threats of future physical punishment, kidnapping, false
140 imprisonment or forcible confinement, or extortion.
141 (i)(g) “Serious personal injury” means great bodily harm or
142 pain, permanent disability, or permanent disfigurement.
143 (j)(h) “Sexual battery” means oral, anal, or female genital
144 vaginal penetration by, or union with, the sexual organ of
145 another or the anal or female genital vaginal penetration of
146 another by any other object; however, sexual battery does not
147 include an act done for a bona fide medical purpose.
148 (k)(i) “Victim” means a person who has been the object of a
149 sexual offense.
150 (g)(j) “Physically incapacitated” means bodily impaired or
151 handicapped and substantially limited in ability to resist or
152 flee.
153 (3) A person who commits sexual battery upon a person 12
154 years of age or older, without that person’s consent, and in the
155 process thereof uses or threatens to use a deadly weapon or uses
156 or threatens to use actual physical force likely to cause
157 serious personal injury or death commits a life felony,
158 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
159 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 as defined in this section under
167 paragraph (1)(h) commits a felony of the third degree,
168 punishable as provided in s. 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 as defined in this section under
172 paragraph (1)(h) commits a felony of the first degree,
173 punishable by a term of years not exceeding life or as provided
174 in s. 775.082, s. 775.083, or s. 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 as
177 defined in this section under paragraph (1)(h), or in an attempt
178 to commit sexual battery injures the sexual organs of such
179 person commits a capital or life felony, punishable pursuant to
180 subsection (2).
181 Section 7. Subsection (1) of section 794.05, Florida
182 Statutes, is amended to read:
183 794.05 Unlawful sexual activity with certain minors.—
184 (1) A person 24 years of age or older who engages in sexual
185 activity with a person 16 or 17 years of age commits a felony of
186 the second degree, punishable as provided in s. 775.082, s.
187 775.083, or s. 775.084. As used in this section, “sexual
188 activity” means oral, anal, or female genital vaginal
189 penetration by, or union with, the sexual organ of another or
190 the anal or female genital vaginal penetration of another by any
191 other object; however, sexual activity does not include an act
192 done for a bona fide medical purpose.
193 Section 8. Paragraph (d) of subsection (1) of section
194 796.07, Florida Statutes, is amended to read:
195 796.07 Prohibiting prostitution and related acts.—
196 (1) As used in this section:
197 (d) “Sexual activity” means oral, anal, or female genital
198 vaginal penetration by, or union with, the sexual organ of
199 another; anal or female genital vaginal penetration of another
200 by any other object; or the handling or fondling of the sexual
201 organ of another for the purpose of masturbation; however, the
202 term does not include acts done for bona fide medical purposes.
203 Section 9. Paragraph (a) of subsection (1) of section
204 800.04, Florida Statutes, is amended to read:
205 800.04 Lewd or lascivious offenses committed upon or in the
206 presence of persons less than 16 years of age.—
207 (1) DEFINITIONS.—As used in this section:
208 (a) “Sexual activity” means the oral, anal, or female
209 genital vaginal penetration by, or union with, the sexual organ
210 of another or the anal or female genital vaginal penetration of
211 another by any other object; however, sexual activity does not
212 include an act done for a bona fide medical purpose.
213 Section 10. Section 800.06, Florida Statutes, is created to
214 read:
215 800.06 Lewd or lascivious offenses committed upon persons
216 16 years of age or older.—
217 (1) A person who intentionally touches in a lewd or
218 lascivious manner, and without consent, the breasts, genitals,
219 genital area, or buttocks, or the clothing covering them, of a
220 person 16 years of age or older, or forces a person 16 years of
221 age or older to so touch the perpetrator, commits lewd or
222 lascivious molestation of a person 16 years of age or older.
223 (2) A person who violates subsection (1) commits a felony
224 of the third degree, punishable as provided in s. 775.082, s.
225 775.083, or s. 775.084.
226 Section 11. Subsection (1) of section 825.1025, Florida
227 Statutes, is amended to read:
228 825.1025 Lewd or lascivious offenses committed upon or in
229 the presence of an elderly person or disabled person.—
230 (1) As used in this section, the term “sexual activity”
231 means the oral, anal, or female genital vaginal penetration by,
232 or union with, the sexual organ of another or the anal or female
233 genital vaginal penetration of another by any other object;
234 however, sexual activity does not include an act done for a bona
235 fide medical purpose.
236 Section 12. Subsection (1) of section 872.06, Florida
237 Statutes, is amended to read:
238 872.06 Abuse of a dead human body; penalty.—
239 (1) As used in this section, the term “sexual abuse” means:
240 (a) Anal or female genital vaginal penetration of a dead
241 human body by the sexual organ of a person or by any other
242 object;
243 (b) Contact or union of the penis, female genitals vagina,
244 or anus of a person with the mouth, penis, female genitals
245 vagina, or anus of a dead human body; or
246 (c) Contact or union of a person’s mouth with the penis,
247 female genitals vagina, or anus of a dead human body.
248 Section 13. Paragraphs (f) and (g) of subsection (1) of
249 section 827.071, Florida Statutes, are amended to read:
250 827.071 Sexual performance by a child; penalties.—
251 (1) As used in this section, the following definitions
252 shall apply:
253 (f) “Sexual battery” means oral, anal, or female genital
254 vaginal penetration by, or union with, the sexual organ of
255 another or the anal or female genital vaginal penetration of
256 another by any other object; however, “sexual battery” does not
257 include an act done for a bona fide medical purpose.
258 (g) “Sexual bestiality” means any sexual act between a
259 person and an animal involving the sex organ of the one and the
260 mouth, anus, or female genitals vagina of the other.
261 Section 14. Subsections (14) and (15) of section 847.001,
262 Florida Statutes, are amended to read:
263 847.001 Definitions.—As used in this chapter, the term:
264 (14) “Sexual battery” means oral, anal, or female genital
265 vaginal penetration by, or union with, the sexual organ of
266 another or the anal or female genital vaginal penetration of
267 another by any other object; however, “sexual battery” does not
268 include an act done for a bona fide medical purpose.
269 (15) “Sexual bestiality” means any sexual act, actual or
270 simulated, between a person and an animal involving the sex
271 organ of the one and the mouth, anus, or female genitals vagina
272 of the other.
273 Section 15. Paragraph (b) of subsection (3) of section
274 944.35, Florida Statutes, is amended to read:
275 944.35 Authorized use of force; malicious battery and
276 sexual misconduct prohibited; reporting required; penalties.—
277 (3)(b)1. As used in this paragraph, the term “sexual
278 misconduct” means the oral, anal, or female genital vaginal
279 penetration by, or union with, the sexual organ of another or
280 the anal or female genital vaginal penetration of another by any
281 other object, but does not include an act done for a bona fide
282 medical purpose or an internal search conducted in the lawful
283 performance of the employee’s duty.
284 2. Any employee of the department or a private correctional
285 facility as defined in s. 944.710 who engages in sexual
286 misconduct with an inmate or an offender supervised by the
287 department in the community, without committing the crime of
288 sexual battery, commits a felony of the third degree, punishable
289 as provided in s. 775.082, s. 775.083, or s. 775.084.
290 3. The consent of the inmate or offender supervised by the
291 department in the community to any act of sexual misconduct may
292 not be raised as a defense to a prosecution under this
293 paragraph.
294 4. This paragraph does not apply to any employee of the
295 department or any employee of a private correctional facility
296 who is legally married to an inmate or an offender supervised by
297 the department in the community, nor does it apply to any
298 employee who has no knowledge, and would have no reason to
299 believe, that the person with whom the employee has engaged in
300 sexual misconduct is an inmate or an offender under community
301 supervision of the department.
302 Section 16. Subsection (2) of section 951.27, Florida
303 Statutes, is amended to read:
304 951.27 Blood tests of inmates.—
305 (2) Except as otherwise provided in this subsection,
306 serologic blood test results obtained pursuant to subsection (1)
307 are confidential and exempt from the provisions of s. 119.07(1)
308 and s. 24(a), Art. I of the State Constitution. However, such
309 results may be provided to employees or officers of the sheriff
310 or chief correctional officer who are responsible for the
311 custody and care of the affected inmate and have a need to know
312 such information, and as provided in ss. 775.0877 and 960.003.
313 In addition, upon request of the victim or the victim’s legal
314 guardian, or the parent or legal guardian of the victim if the
315 victim is a minor, the results of any HIV test performed on an
316 inmate who has been arrested for any sexual offense involving
317 oral, anal, or female genital vaginal penetration by, or union
318 with, the sexual organ of another, must shall be disclosed to
319 the victim or the victim’s legal guardian, or to the parent or
320 legal guardian of the victim if the victim is a minor. In such
321 cases, the county or municipal detention facility shall furnish
322 the test results to the Department of Health, which is
323 responsible for disclosing the results to public health agencies
324 as provided in s. 775.0877 and to the victim or the victim’s
325 legal guardian, or the parent or legal guardian of the victim if
326 the victim is a minor, as provided in s. 960.003(3).
327 Section 17. Subsection (10) of section 395.0197, Florida
328 Statutes, is amended to read:
329 395.0197 Internal risk management program.—
330 (10) Any witness who witnessed or who possesses actual
331 knowledge of the act that is the basis of an allegation of
332 sexual abuse shall:
333 (a) Notify the local police; and
334 (b) Notify the hospital risk manager and the administrator.
335
336 For purposes of this subsection, “sexual abuse” means acts of a
337 sexual nature committed for the sexual gratification of anyone
338 upon, or in the presence of, a vulnerable adult, without the
339 vulnerable adult’s informed consent, or a minor. “Sexual abuse”
340 includes, but is not limited to, the acts defined in s.
341 794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
342 vulnerable adult’s or minor’s sexual organs, or the use of the
343 vulnerable adult or minor 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 which may reasonably be construed to be a normal caregiving
347 action.
348 Section 18. Subsection (26) of section 415.102, Florida
349 Statutes, is amended to read:
350 415.102 Definitions of terms used in ss. 415.101-415.113.
351 As used in ss. 415.101-415.113, the term:
352 (26) “Sexual abuse” means acts of a sexual nature committed
353 in the presence of a vulnerable adult without that person’s
354 informed consent. “Sexual abuse” includes, but is not limited
355 to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
356 fondling, exposure of a vulnerable adult’s sexual organs, or the
357 use of a vulnerable adult to solicit for or engage in
358 prostitution or sexual performance. “Sexual abuse” does not
359 include any act intended for a valid medical purpose or any act
360 that may reasonably be construed to be normal caregiving action
361 or appropriate display of affection.
362 Section 19. This act shall take effect October 1, 2022.