There are a number of potential defenses available to a person charged with a Florida sex crime. That includes arguing that he or she should at most be convicted of a lesser crime that isn’t considered a sex offense. Florida’s First District Court of Appeal recently explained how judges weigh requests to instruct a jury about lesser offenses.A defendant was charged with lewd or lascivious molestation of a child under the age of 12, stemming from an incident with his stepdaughter at a local movie theatre. Moments into the movie that he had taken the girl to see, he allegedly asked the girl if he could touch her breasts. The girl consented, according to the court, and he proceeded to touch her breasts. The girl told her mother about the incident roughly one year later, after the mother asked the girl specifically if he had ever touched her inappropriately.
The defendant admitted to the incident and reported himself to the Department of Children and Families. He later testified at trial that he touched the girl’s breasts for approximately two to three minutes and told her that she was “growing up” and “becoming quite the woman.” The trial judge declined the defendant’s request to instruct the jury that he could be convicted of battery – a lesser offense – instead of lewd or lascivious molestation. The court did, however, instruct the jury that the defendant could be convicted of attempted lewd and lascivious molestation instead. He was eventually convicted on the actual molestation charge.
Affirming the decision on appeal, the First District said the trial judge didn’t err by declining to instruct the jury that the defendant could have instead been convicted of battery. Florida law defines battery as the actual and intentional touching or striking of another person, without the person’s consent. In this case, however, prosecutors didn’t allege that the touching was against the girl’s will. The court also said there was no evidence in the record that the girl didn’t consent.
The court additionally noted that a parent can’t commit battery by touching his or her child, under Florida law, unless the touching is in a lewd manner. “Thus, either the act of fondling the nine-year old’s breasts was a lewd molestation or it was no crime at all, because a non-lewd touching of a child by a parent cannot constitute a battery, absent evidence of physical injury or other factors not alleged or proven here,” the court said.
If you or a loved one has been charged with molestation or another sex crime in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. Clearwater sex crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.