Florida Bar News

Amendments to criminal jury instructions involving children

Amendments to criminal jury instructions involving children

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing amendments to jury instructions 11.1 (Sexual Battery—Victim Less Than 12 Years of Age); 11.2 (Sexual Battery—Victim 12 Years of Age or Older—Great Force); 11.3 (Sexual Battery—Victim 12 Years of Age or Older—Specified Circumstances); 11.4 (Sexual Battery—Person 12 Years of Age or Older); 11.5 (Solicitation of Child Under 18 Years of Age to Engage in an Act that Constitutes Sexual Battery by Person in Familial or Custodial Authority); and 11.6 (Sexual Battery Upon Child 12 Years of Age or Older but Under 18 Years of Age by Person in Familial or Custodial Authority).

The Court invites all interested persons to comment on the Committee’s proposals, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before May 15, 2014, with a certificate of service verifying that a copy has been served on the Criminal Instructions Committee Chair, The Honorable Joseph Anthony Bulone, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, [email protected]. A separate request for oral argument should accompany the comment if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until June 5, 2014, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2014-03, CASE NO. SC14-465

To prove the crime of Sexual Battery upon a Person Less Than 12 Years of Age, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was less than 12 years of age.

Give 2a, 2b, 2c, or 2d as applicable.

2. a. (Defendant) committed an act [upon] [with] (victim) in
which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].

b. (Defendant) committed an act [ upon ] [with] (victim) in which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

c. (Defendant) injured the sexual organ of (victim) in an attempt to commit an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] would have penetrated or would have had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].

d. (Defendant) injured the sexual organ of (victim) in an attempt to commit an act upon (victim) in which the [anus] [vagina] of (victim) would be penetrated by an object.

Give 3a or 3b as applicable .

3. a. (Defendant) was 18 years of age or older at the time of the sexual battery.

b. (Defendant) was less than 18 years of age at the time of the sexual battery.

Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.
Definition. G ive if applicable.
“Union” means contact.

Give if requested. Khianthalat v. State, 974 So. 2d 359 (Fla. 2008).
Consent of (victim) is not a defense to the crime charged.

Give if requested. § 794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021 Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give instruction on enhancement.
§ 794.023, Fla. Stat.

The option of the word “[with] (victim)” in 2a and 2c is provided to reflect the manner in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.

SEXUAL BATTERY — VICTIM UNDER 12 — 794.011(2)(a)–(b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Battery		784.03(1)(a)1	8.3
	Solicitation by person in familial authority	794.011(8)(c)	11.5
	Attempt	777.04(1)	5.1
	Assault Aggravated battery	784.011 784.045(1)(a)	8.18.4
	Felony Battery	784.041(1)	8.5
	Aggravated assault	784.021(1)(a)	8.2
	Aggravated battery Assault	784.045(1)(a) 784.011	8.4 8.1

This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1995 [657 So.2d 1152], and 2007 , by adding 3(a) and 3(b) pursuant to Glover v. State , [ 863 So.2d 236 ], (Fla. 2003) and 2014.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or Older with the Use of [ a Deadly Weapon ] [ or ] [ Physical Force Likely to Cause Serious Personal Injury] , the State must prove the following four elements beyond a reasonable doubt:

1. (Victim) was 12 years of age or older.

2. a. [ (Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].]

b. (Defendant) committed an act [ upon ] [with] (victim) in which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. (Defendant) in the process
a. [used or threatened to use a deadly weapon].

b. [used actual physical force likely to cause serious personal injury].

4. The act was done without the consent of (victim) .

Definitions.
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.

Give if applicable.
Evidence of the victim’s mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.

“Union” means contact.

Give if 3a alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Give if 3b alleged.
“Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.

Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.

Give if requested.§ 794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give instruction on enhancement. § 794.023, Fla. Stat.

The option of the word “ [with] (victim)” in 2a is provided to reflect the manner in which the crime was committed. See Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986), at pages 627, 628.

SEXUAL BATTERY — VICTIM OVER 12 — WEAPON OR FORCE — 794.011(3)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Sexual battery		794.011(5)	11.4
Battery		784.03(1)(a)1	8.3
	Sexual battery	794.011(4)	11.3
	Attempt	777.04(1)	5.1
	Lewd or lascivious battery	800.04(4)	11.10
	Aggravated battery	784.045(1)(a)	8.4
	Felony battery	784.041(1)	8.5
	Aggravated assault	784.021(1)(a)	8.2
	Assault	784.011	8.1

This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1995 [657 So.2d 1152], 2003 [850 So.2d 1272], and 2008 [995 So. 2d 476], and 2014.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or Older under Specified Circumstances, the State must prove the following four elements beyond a reasonable doubt:

1. (Victim) was 12 years of age or older.

2. a. [ (Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].]
b. (Defendant) committed an act [ upon ] [with] (victim) in which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. a. [ (Victim) was physically helpless to resist.]

b. [ (Defendant) coerced (victim) to submit by threatening to use force or violence likely to cause serious personal injury and (victim) reasonably believed the (defendant) had the present ability to execute the threat.]

c. [ (Defendant) coerced (victim) to submit by threat of retaliation against (victim) or any other person and (victim) reasonably believed that (defendant) had the ability to execute the threat in the future.]

d. [ (Defendant) , without prior knowledge or consent of (victim) , administered or had knowledge of someone else administering to (victim) a narcotic, anesthetic, or other intoxicating substance that mentally or physically incapacitated (victim) .]
e. [ (Victim) was mentally defective and (defendant) had reason to believe this or had actual knowledge of that fact.]

f. [ (Victim) was physically incapacitated.]

g. [ (Defendant) was at the time a[n] (insert official title or position) and was a[n] [certified [law enforcement officer] [correctional officer] [correctional probation officer]] [elected official exempt from certification] [person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting] and the [officer] [official] [person] was acting in such a manner as to lead (victim) to reasonably believe that (defendant) was in a position of control or authority as an agent or employee of government.]

4. The act was committed without the consent of (victim) .

Definitions.
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.

Give if applicable.
Evidence of the victim’s mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.

“Union” means contact.

Give if 3a alleged.
“Physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act.

Give if 3b alleged.
“Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.

Give if 3f alleged.
“Physically incapacitated” means that a person is bodily impaired or handicapped and substantially limited in his or her ability to resist or flee an act.

Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.

Give if requested.§ 794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give instruction on enhancement. § 794.023, Fla. Stat.

The option of the word “ [with] (victim)” in 2a is provided to reflect the manner in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.

SEXUAL BATTERY — VICTIM OVER 12 — SPECIAL SPECIFIED CIRCUMSTANCES — 794.011(4)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Sexual battery		794.011(5)	11.4
Battery		784.03(1)(a)1	8.3
	Lewd or lascivious battery	800.04(4)	11.10
	Attempt	777.04(1)	5.1
	Aggravated battery	784.045(1)	8.4
	Felony battery	784.041(1)	8.5
	Aggravated assault	784.021(1)(a)	8.2
	Assault	784.011	8.1

Element 3g: See s. 943.10(1), (2), (3), (6), (7), (8), (9) for the definition of a law enforcement officer, correctional officer, or correctional probation officer who must be either certified pursuant to s. 943.1395 or an elected officer exempt from certification pursuant to s. 943.253.

This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], 2003 [850 So.2d 1272], and 2008 [995 So. 2d 476], and 2014.

To prove the crime of Sexual Battery upon a Person 12 Years of Age or Older, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was 12 years of age or older.

Give 2a or 2b as applicable.

2. a. [ (Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [( victim) ] [ (defendant) ].]
b. (Defendant) committed an act [ upon ] [with] (victim) in which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object.

3. The act was committed without the consent of (victim) .

Definitions
Give in all cases.
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.

Give if applicable.
Evidence of the victim’s mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.

Give if applicable.
“Union” means contact.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.

Give if requested.§ 794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

In the event that multiple perpetrators is charged and proven, give instruction on enhancement. § 794.023, Fla._Stat.

The option of the word “ [with] (victim)” in 2a is provided to reflect the manner in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.

SEXUAL BATTERY — VICTIM OVER 12 — WITHOUT FORCE — 794.011(5)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Battery		784.03(1)(a)1	8.3
	Attempt	777.04(1)	5.1
	Assault	784.011	8.1

This instruction was adopted in 1981 and was amended in 1987 [508 So. 2d 1221], 1995 [657 So. 2d 1152], and 2003 [850 So. 2d 1272], and 2014.

To prove the crime of Solicitation of a Child to Engage in an Act that Constitutes Sexual Battery by a Person in Familial or Custodial Authority, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was less than 18 years of age.

2. (Defendant) stood in the position of familial or custodial authority with regard to (victim) .

3. (Defendant ) [commanded] [encouraged] [hired] [requested] [tried to induce] (victim) to engage in an act which constitutes sexual battery in which:

a. [the sexual organ of the [ (defendant) ] [ (victim) ] would penetrate or have union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ]].

b. [the [anus] [vagina] of [ (victim) ] [ (defendant)] would be penetrated by an object].

It is not necessary that a sexual battery actually take place for the crime to be completed.

§ 794.011(8), Fla. Stat.
It is not a defense that (victim) was willing to engage in an act which constitutes sexual battery or consented to engage in such acts.

Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.

Definition. Give if applicable.
“Union” means contact.

Give if requested. § 794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021 Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged.

No lesser included offenses have been identified for this offense.

This instruction was adopted in 1987 [508 So. 2d 1221] and was amended in 1995 [657 So. 2d 1152], and 1997 [697 So. 2d 84], and 2014.

To prove the crime of Sexual Battery Upon a Child by a Person in a Familial or Custodial Authority, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was 12 years of age or older but less than 18 years of age.

2. (Defendant) stood in the position of familial or custodial authority with regard to (victim) .

3. (Defendant) committed an act [ upon ] [with] (victim ) in which:

a. [the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ]].

b. [the [anus] [vagina] of [ (victim ) ] [ (defendant) ] was penetrated by an object].

§ 794.011(8), Fla. Stat.

It is not a defense that (victim) was willing to engage in acts which would constitute a sexual battery or consented to engage in such acts.

Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.

Definition. Give if applicable.
“Union” means contact.

Give if requested.§794.022 Fla. Stat.
(Victim’s) lack of chastity is not a defense to the crime charged.

§ 794.021 Fla. Stat.
Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her age, or a defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged.

SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY — 794.011(8)(B)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1
	Lewd or lascivious battery	800.04(4)	11.10
	Battery	784.03	8.3

This instruction was adopted 1987 [508 So.2d 1221] and was amended in 1995 [657 So.2d 1152], 1997 [697 So.2d 84], and 2008 [995 So. 2d 476], and 2014.