OLD LAW
Any
crime must be charged pursuant to law as it existed at the time the crime was
committed. The crime of Capital Sexual
Battery has changed significantly over the years. Most of these changes occurred prior to October 1, 1984. Cases filed prior to this date must be taken
before the grand jury and the indictment must contain the language of the
applicable statute. The following will
be a history of the changes of the Capital Sexual Battery law and the effective
date of each change.
Effective Date: Language
of Statute:
1947 794.01: Rape and forcible carnal
knowledge: Whoever ravishes and carnally knows a female of the age of
ten years or more, by force and against her will, or unlawfully or carnally
knows and abuses a female child under the age of ten years, shall be punished
by death, unless a majority of the jury in their verdict recommend mercy, in
which event punishment shall be by imprisonment in the state prison for life,
or for any term of years within the discretion of the judge. It shall not be necessary to prove the
actual emission of seed, but the crime shall be deemed complete upon proof of
penetration only.
Note: Absent the use of force, the age limit is
less than 10, and penetration is required.
Definitions are determined by case law.
1/1/72 794.01: Rape and forcible carnal knowledge:
Whoever ravishes and carnally knows a female of the age of ten years or more,
by force and against her will, or unlawfully or carnally knows and abuses a
female child under the age of ten years, shall be guilty of a capital felony,
punishable as provided in 775.082. It
shall not be necessary to prove the actual emission of seed, but the crime
shall be deemed complete upon proof of penetration only.
Note: This law requires the child
to be under the age of ten. The crime
requires penetration. It should also be
noted that this statute does not list the death penalty as an option.
12/8/72 794.01: Rape and forcible carnal knowledge: (1) Whoever of the age of seventeen years or older unlawfully
ravishes or carnally knows a child under the age of eleven is guilty of a
capital felony, punishable as provided in 775.082.
(2) Whoever ravishes or carnally knows a person of the age of eleven
years or more, by force and against his or her will, or unlawfully and carnally
knows and abuses a child under the age of eleven years, shall be guilty of a
life felony, punishable as provided in 775.082.
(3) It shall not be necessary to prove the actual emission of seed, but
the crime shall be deemed complete upon proof of penetration only.
Note: This statute requires the
child to be under the age of 11.
Penetration is required. The Laws of Florida do not give an effective
date, but say that it was approved by the governor on 12/8/72. This age specification only applies for one
year.
10/1/74 794.011(2): Sexual Battery: A person
18 years of age or older who commits sexual battery upon, or injures the sexual
organs of, a person 11 years of age or younger in an attempt to commit sexual
battery upon said person commits a capital felony punishable as provided in
775.082 and 921.141. If the offender is
under the age of 18, that person shall be guilty of a life felony, punishable
as provided in chapter 775.
10/1/84 794.011(2): Sexual Battery: A
person 18 years of age or older who
commits sexual battery upon, or injures the sexual organs of, a person less than
12 years of age in an attempt to commit sexual battery upon such person commits
a capital felony punishable as provided in 775.082 and 921.141. If the offender is under the age of 18, that
person is guilty of a life felony, punishable as provided in 775.082, 775.083
or 775.084.
Note: This statute simply changes
the wording "over the age of 11 years" to 12 years of age or
older." They both mean the same
thing, but the revision is intended to be a clearer expression of legislative
intent.
Prior to July 1, 1975, the statute of limitations was contained in F.S.
932.465. Under that statute, "a
prosecution for an offense punishable by death may be commenced at any
time." All others had a two year
statue of limitations. On July 1, 1975,
the statute of limitations was reclassified as F.S. 775.15. Under this statute "A prosecution for a
capital felony may be commenced at any time." The current law states that a prosecution for a capital or
life felony may be commenced at any time.
The death penalty was eliminated as a possible penalty as a result of
the case of Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied,
454 U.S. 1164 (1982). From July 24,
1972 until October 1, 1972, there was a two year statute of limitations. See
Mercer v. State, 654 So.2d 1221 (Fla. 5th DCA 1995) in my Issues of Time chapter.
When a defendant pleads guilty or requests lessers at trial, he must
personally, and not through his attorney show the court that he appreciates the
nature of the right he is renouncing and is aware of the potential consequences
of his decision. This decision must be
knowingly, intelligently and voluntarily made.
It must also be on the record.
See Tucker v. State, 459 So. 2d 306 (Fla. 1984). The State should never ask for lessers at
trial on one of these old cases. All
lessers are barred by statute unless requested by defendant with appropriate
colloquy.
Please see the chapter “Issues of Time” for more cases on this issue.
Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000):
Where plaintiff
in tort action based on childhood sexual abuse alleges that she suffered from
traumatic amnesia caused by the abuse, the delayed discovery doctrine postpones
accrual of the cause of action.
Delayed
discovery doctrine may only be applied to the accrual of a cause of action, and
may not be applied to toll the running of statute of limitations.
Error to dismiss
complaint alleging childhood sexual abuse on ground that action was barred by
statute of limitations where alleged abuse occurred from 1968 to 1975, abuse
was not recalled until approximately 1988, and complaint was filed in 1991,
prior to 1992 enactment of statutory delayed discovery doctrine.
Discussion: This case does not apply to criminal
prosecutions, but we occasionally get victim’s who ask us if they can still
pursue a case civilly. Although we cannot
advise them on civil matters, we can suggest they discuss this case with a
civil attorney.
Rains v. State, 671 So.2d
815 (Fla. 5th DCA 1996):
Conviction for
capital sexual battery stemming from alleged rape occurring in 1971 must be
reversed because state failed to adduce evidence as to lack of consent and use
of force as those terms were legally defined in 1971.
Discussion: When you try
one of those ancient capital sexual battery cases, be very careful to establish
the elements of the offense as they existed at the time. This opinion cites a few old cases which
interpreted the law as it existed in 1971.
For instance, the case of Huffman
v. State, 400 So.2d 133, 134 (Fla. 5th DCA 1971) was cited for
the following language: “If the exhibited or threatened force was not
sufficient to put the woman ‘in fear of loss of life or other great danger,’
evidence of resistance was required to demonstrate the act was by force and
against her will.” Please consider this
case and the decisions cited therein when you make a decision to take one of
these cases to the grand jury.
Mercer v.
State, 654 So.2d 1221 (Fla. 5th DCA 1995):
In prosecution for capital sexual battery based on acts alleged to have
occurred during eight and a half month period during which two different
limitations periods were applicable, conviction must be reversed because state
failed to prove that offenses occurred during the period when the unlimited
limitations period was in effect rather than when the two year period was in
effect.
Discussion: The sexual
battery on a child was alleged to have occurred between January 1972 and
September 16, 1972. Two different
limitations periods were applicable during that time frame. From January 1, 1972 to July 24, 1972, there
was no time limitation for prosecuting the offense of forcible intercourse on a
child less than ten as the crime was punishable by death. From July 24, 1972 to October 1, 1972, the
two year statute of limitations provided in F.S. 932.465(2) controlled.
Washington
v. State, 302 So.2d 401 (Fla. 1974):
This case interprets "carnal knowledge" under the law as it
existed in 1973. It basically says that
both the mouth and the anus will qualify for carnal knowledge. "Any forcible penetration by a man's
sexual organ into any bodily orifice of another against the latter's will
constitutes forcible carnal knowledge of the victim."
Discussion: The court
adopts the definition in Brinson.
The Court notes “In our view, the body and mind of a victim of a
forcible sexual assault is no less outraged because the penetration by the
assailant occurred in the anal orifice--as in the instant case-- or in the oral
orifice--as in the Parisi case--rather than in the vaginal orifice. In either case, it is a gross invasion of
the privacy of one’s body which cannot be tolerated by a civilized society.
Brinson v.
State, 278 So.2d 1973 (Fla. 1st DCA 1973):
Any forcible penetration by a man’s sexual organ into any bodily orifice
of another against the latter’s will constitutes forcible carnal knowledge of
the victim.
Discussion: This very
interesting case recognizes that “carnal knowledge statutes have generally been
held to connote forcible penetration of the sexual organ of the victim,” but
notes that there is nothing in the language of the statute to require such a
restricted interpretation. The court
reasoned that the restricted interpretation was based upon the fact that there
was a crime against nature statute which covered other such sexual acts. Once the crimes against nature statute was
ruled unconstitutional, the court felt that acts such as sodomy and oral sex
should be covered by carnal knowledge.
Please note that this case was overruled in Brinson v. State, 288
So.2d 480 (Fla. 1974) on other grounds.
In addition to modifying the interpretation of “carnal knowledge” the
District Court also ruled that the statue would apply to male victims even
though the statute specified it only applied to female victims. This was usurping a legislative
function. The District Court’s
definition of “carnal knowledge” was specifically approved by the Florida
Supreme Court in Washington v. State, 302 So.2d 401 (Fla. 1974).
Hansen v.
State, 421 So.2d 504 (Fla. 1982):
Sexual battery statute governing offenses committed against persons
"11 years of age or younger" was not ambiguous and was applicable to
victim who was 11 years and 3 months of age.
Askew v.
State, 118 So.2d 219 (Fla. 1960):
Court defines ravishment and carnal knowledge of a female of age of 10
years or more by force and against her will by enumerating three elements: 1)
penetration of female private parts by private male organ; and 2) force of such
a nature as to put victim in such fear that she is thereby compelled to submit
to the act.
Perez v.
State, 545 So.2d 1357 (Fla. 1989):
Limitations period in effect at time of incident giving rise to criminal
charges controls time within which prosecution must begin; therefore,
defendant's prosecution for sexual battery was not time barred inasmuch as, at
time of alleged offenses, death was possible penalty and no limitations period
was applicable. A very good case for
general knowledge in this area.
Sellers v.
State, 212 So.2d 659 (Fla. 3d DCA 1968):
Testimony of victim of rape that defendant placed his penis against her
vaginal opening and testimony by expert witness that seminal fluid was found at
least three and one half inches within the vagina was sufficient to establish
penetration.
McGahee v.
State, 561 So.2d 333 (Fla. 1st DCA 1990):
Defendant was improperly convicted of rape for forcing child to commit
oral sodomy upon him; rape statute in effect at the time of offense (1/1/71 to
10/1/72) was not interpreted to prohibit unlawful sexual acts other than
penetration of female victim's sex organ by male's sex organ and , thus, trial
court's definition of rape in its jury instruction, which included act
perpetrated by defendant, violated ex post facto clause. This is an excellent case to follow the
history of the sex laws.
Discussion: This case
points out a very subtle distinction in this legal area. Prior to December 17, 1971, sexual acts
which did not involve the penis penetrating the vagina were punishable as
crimes against nature, F.S. 800.01.
When that statute was ruled unconstitutional on December 17, 1971, the
only viable charge for such crimes as forcible sodomy and oral sex was a second
degree misdemeanor under F.S. 800.02.
The Brinson court expressed outrage at the pending status of the
law and decided that they would redefine the term “carnal knowledge” to include
those acts previously covered by the unconstitutional statute. The McGahee decision points out that
the courts new definition only applies to offenses which occurred after the May
17, 1973 release date of the Brinson decision. Consequently, oral and anal sex only apply to the carnal
knowledge statute for seventeen months.
This covers the time period between the Brinson decision and the
October 1, 1974 Sexual Battery statute.