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 90.404Character 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 defendants 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: 61 365.161Prohibition 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: 73 491.0112Sexual 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: 82 775.0847Possession 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: 102 775.15Time 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: 119 794.011Sexual 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 persons 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 persons 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: 186 794.05Unlawful 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: 198 796.07Prohibiting 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: 208 800.04Lewd 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: 218 800.06Lewd 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: 231 825.1025Lewd 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: 241 827.071Sexual 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: 254 847.001Definitions.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: 266 872.06Abuse 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 persons 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: 278 944.35Authorized 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 employees 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: 307 951.27Blood 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 victims 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 victims 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 victims 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: 332 395.0197Internal 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 adults 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 adults or minors 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: 353 415.102Definitions 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 persons 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 adults 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: 367 847.0141Sexting; 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 minors 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.