Amendments to 800.04

1. U.S. v. Padilla-Reyes

   247 F.3d 1158 (11th Cir. 2001)   Cited 67 times

   Florida Statute § 800.04 criminalizes sexual offenses that do not rise to the level of rape or sexual battery and which are committed against children under the age of sixteen. See FLA. STAT. ANN. § 800.04 (1987). Because the statute is written in the disjunctive, it encompasses acts involving victim contact as well as acts involving no victim contact. Worling v. State, 484 So.2d 94, 94 (Fla.Dist.Ct.App. 1986). The elements of the offense vary accordingly. Thus, as Padilla contends, § 800.04 does not in every case require physical contact with the victim. See Ramsey v. INS, 55 F.3d 580, 583 (11th Cir. 1995).

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2. State v. Werner

   609 So. 2d 585 (Fla. 1993)   Cited 25 times

   In amicus briefs filed with this Court, the Guardian Ad Litem Program for the Eleventh Judicial Circuit and the Family Law Section of The Florida Bar argue that any construction of "presence" which requires sensory awareness by the child is contrary to the legislative intent in enacting section 800.04(3). The amici contend that the purpose of section 800.04(3) is to prohibit adults from using children, either actively or passively, as stimulants for the adult's sexual activity. The amici's analysis focuses upon the intent and the act of the perpetrator, without regard to the child's awareness of the act. However, we find that the preamble to the act amending section 800.04, clearly expresses a legislative focus upon preventing harm to the child. The preamble states that "the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children." Ch. 84-86, Laws of Fla. (emphasis added).

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3. Ray v. State

   403 So. 2d 956 (Fla. 1981)   Cited 292 times

   To dispose of this case, we must first determine whether committing a lewd and lascivious act on a minor under the age of fourteen is a lesser included offense of sexual battery of a person over the age of eleven. In Brown v. State, 206 So.2d 377 (Fla. 1968), this Court identified four categories of lesser included offenses. Committing a lewd and lascivious act is not a necessarily lesser included (type 3) offense of sexual battery. Walker v. State, 351 So.2d 382 (Fla. 4th DCA 1977). Nor is it a category 4 lesser included offense in the instant case because the information did not contain all the elements specified in section 800.04. See id.; Brown. It is also not "lesser" because both section 794.011(5) and section 800.04 are second-degree felonies. Thus, Ray was convicted of a crime for which he was not charged and which was not a permissible lesser included offense of the crime for which he was charged.

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4. State v. Meshell

   2 So. 3d 132 (Fla. 2009)   Cited 76 times

   Id. at 1175. Because the Fifth District only had section 800.04(4) at issue before it, and ruled only on that statute, we limit our review to the certified question as it pertains to section 800.04(4), and answer it affirmatively.

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5. U.S. v. Harris

   608 F.3d 1222 (11th Cir. 2010)   Cited 40 times   1 Legal Analyses

   Harris hypothesizes that under Florida law a person could be convicted of the crime of sexual battery of a child under the age of sixteen "even when the act was unintentional and the victim factually consented to the act." Supp. Br. of Appellant at 12. He points out the possibility of "factual consent" because legal consent is impossible under the statute. See Fla. Stat. § 800.04 (1996) ("Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section."). It makes no difference for conviction purposes if the perpetrator believes that the victim has in fact "consented." See Jones v. State, 640 So.2d 1084, 1086 (Fla. 1994) ("The legislature enacted section 800.04 based on a morally neutral judgment that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child." (quotation marks and citation omitted)); cf. United States v. Chavarriya-Mejia, 367 F.3d 1249, 1251 (11th Cir. 2004) ("Because Kentucky law presumes that underage children are incapable of consent, statutory rape necessarily involves a sexual act performed 'against' the child."). A person could…

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6. Williams v. State

   957 So. 2d 595 (Fla. 2007)   Cited 44 times

   Although this Court held in State v. Hightower, 509 So.2d 1078 (Fla. 1987), that lewd and lascivious conduct is not a lesser included offense of sexual battery, our decision preceded a major revision to section 800.04 in 1999. In Hightower, we held that "[t]he crime of lewd and lascivious conduct was not and is not a necessarily included offense of the crime of sexual battery." Id. at 1079. In Welsh v. State, 850 So.2d 467 (Fla. 2003), we extended this holding to also preclude instruction on lewd or lascivious conduct as a permissive lesser included offense of capital sexual battery. Id. at 468. However, the version of section 800.04 addressed in both High-tower and Welsh provided that lewd or lascivious conduct could only be perpetrated "without committing the crime of sexual battery." § 800.04, Fla. Stat. (1997). This language was eliminated in the 1999 revision, which also created separate subsections for acts defined as lewd or lascivious "battery," "molestation," "conduct," and "exhibition." Ch. 99-201, § 6, Laws of Fla. In Welsh, the Court explicitly refrained from stating an opinion as to whether, under the 1999 revision, "lewd and lascivious…

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7. Khianthalat v. State

   974 So. 2d 359 (Fla. 2008)   Cited 43 times

   Khianthalat's argument that he was entitled to a jury instruction on battery as a permissive lesser-included offense fails because section 800.04( 4), the statute under which he was charged, does not apply to children under the age of twelve; accordingly, the presumption of incapacity to consent is not applicable to offenses under that statute. Section 800.04( 4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual. See Welsh v. State, 850 So.2d 467 (Fla. 2003). "The legislature enacted section 800.04 based on a `morally neutral judgment' that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child." Jones v. State, 640 So.2d 1084, 1086 (Fla. 1994) (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)). The fact that section 800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in…

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8. U.S. v. Rutherford

   175 F.3d 899 (11th Cir. 1999)   Cited 58 times

   55 F.3d at 583. The Court then held that a violation of section 800.04(1), Florida Statutes, is a crime of violence as defined in 18 U.S.C. § 16. Ramsey, 55 F.3d at 583. Based on the Court's analysis, there is no substantial difference between section 800.04(1) and the other subsections of section 800.04, so the Ramsey decision would apply to any conviction under that statute.

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9. United States v. Caceres-Olla

   738 F.3d 1051 (9th Cir. 2013)   Cited 26 times

   Under the amended Guidelines, a “forcible sex offense” thus requires a sexual act where “consent to the conduct”: (1) “is not given”; or (2) “is not legally valid, such as where consent to the conduct is involuntary,incompetent, or coerced.” U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii). A plain reading of Florida's “[l]ewd and lascivious battery” offense, Fla. Stat. § 800.04(4)(a), makes clear that lack of consent is not an “element” of the crime. As with statutory rape “[i]n most jurisdictions,” section 800.04(4)(a) “is a strict liability crime.” United States v. Gomez–Mendez, 486 F.3d 599, 604 (9th Cir.2007). It criminalizes “[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age,” regardless of whether the victim, in fact, consents. Fla. Stat. §§ 800.04(2), (4)(a).

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10. State v. Hightower

    509 So. 2d 1078 (Fla. 1987)   Cited 55 times

    I do not agree, however, with the majority's treatment of section 800.04, Florida Statutes (1985), as amended by section 5, chapter 84-86, Laws of Florida. The majority concludes that the amended phrase "without committing the crime of sexual battery" differentiates between the crimes of sexual battery and lewd and lascivious conduct and that, except for the phrase, a person could be convicted of both offenses for the same conduct. In other words, inclusion of the phrase prohibits conviction of both offenses for the same conduct. It follows that, as amended, section 800.04 is now a necessarily lesser included offense of section 794.011, Florida Statutes (1985). The reason this necessarily follows is that we know from section 775.021(4) that all separate offenses are subject to separate convictions and sentences, and, if two offenses are not separate, then one must be necessarily included in the other and separate convictions and sentences are prohibited. Thus, if the legislative phrase prohibits separate convictions and sentences, then it can only be that the legislature intended section 800.04 to become a necessarily lesser included offense of section…

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