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 90.404Character 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 defendants 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: 57 365.161Prohibition 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: 69 491.0112Sexual 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: 78 775.0847Possession 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: 98 775.15Time 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: 115 794.011Sexual 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 persons 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 persons 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: 182 794.05Unlawful 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: 194 796.07Prohibiting 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: 204 800.04Lewd 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: 214 825.1025Lewd 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: 224 827.071Sexual 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: 237 847.001Definitions.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: 249 872.06Abuse 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 persons 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: 261 944.35Authorized 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 employees 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: 290 951.27Blood 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 victims 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 victims 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 victims 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: 315 395.0197Internal 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 adults 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 adults or minors 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: 336 415.102Definitions 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 persons 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 adults 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: 350 847.0141Sexting; 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 minors 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.