In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-INSTRUCTIONS 7.8, 7.8(A), and 11.1-11.6(A) ( 2016 )


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  •           Supreme Court of Florida
    ____________
    No. SC15-470
    ____________
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
    INSTRUCTIONS 7.8, 7.8(a), AND 11.1 - 11.6(a).
    [April 14, 2016]
    PER CURIAM.
    The Supreme Court Committee on Standard Jury Instructions in Criminal
    Cases (Committee) has submitted a report proposing amendments to eight existing
    standard criminal jury instructions and the addition of one new instruction. We
    have jurisdiction. See art. V, § 2(a), Fla. Const.
    The Committee proposes amending existing instructions 7.8 – Driving
    Under the Influence Manslaughter; 7.8(a) – Boating Under the Influence
    Manslaughter; 11.1 – Sexual Battery—Victim Less than 12 Years of Age; 11.2 –
    Sexual Battery—Victim 12 Years of Age or Older – Great Force or Deadly
    Weapon; 11.3 – Sexual Battery—Under Specified Circumstances; 11.4 – Sexual
    Battery; 11.5 – Solicitation of a Child to Engage in an Act that Constitutes Sexual
    Battery by Person in Familial or Custodial Authority; and 11.6 – Engaging in an
    Act Which Constitutes Sexual Battery Upon or With a Child 12 Years of Age or
    Older but Younger than 18 Years of Age by Person in Familial or Custodial
    Authority.1 The Committee also proposes adding new instruction 11.6(a) –
    Engaging in an Act Which [Constituted Sexual Battery] [Injured the Sexual Organ
    of Another in an Attempt to Commit Sexual Battery] by a Person in Familial or
    Custodial Authority Upon a Person Less than 12 Years of Age.
    Before filing its report with the Court, the Committee published its proposals
    for comment. Upon consideration of the comments received, and upon further
    review, the Committee modified some of its proposals. The Committee did not
    republish its proposals.
    After the Committee filed its report, the Court published the Committee’s
    proposals for comment. Comments were received from the Florida Association of
    1. The Committee’s proposals in this case were initially filed in In re:
    Standard Jury Instructions in Criminal Cases—Report No. 2015-01, Case No.
    SC15-368, along with the Committee’s proposals to add new instruction 22.16 and
    amend existing instructions 20.3 through 20.12. By order dated March 17, 2015,
    we severed the proposals in this case from Case No. SC15-368 and directed that
    they be considered in a separate proceeding.
    Also, the Committee’s proposals in this case initially included a proposal to
    add new instruction 1.5 (Questioning in Capital Trials (Death Penalty)). We
    granted the Committee’s request to withdraw this proposal in light of the recent
    changes to Florida’s death penalty sentencing scheme that have occurred as a result
    of the U.S. Supreme Court’s decision in Hurst v. Florida, 
    136 S. Ct. 616
    (2016),
    and the enactment of chapter 2016-13, Laws of Florida.
    -2-
    Criminal Defense Lawyers and the Florida Public Defender Association. Having
    considered the Committee’s report, the comments filed, and the Committee’s
    response, we hereby authorize for publication and use new instruction 11.6(a) and
    amended instructions 7.8, 7.8(a), and 11.1-11.6 as proposed by the Committee.
    The instructions, as set forth in the appendix to this opinion, are authorized
    for publication and use.2 In authorizing the publication and use of these
    instructions, we express no opinion on their correctness and remind all interested
    parties that this authorization forecloses neither requesting additional or alternative
    instructions nor contesting the legal correctness of the instructions. We further
    caution all interested parties that any comments associated with the instructions
    reflect only the opinion of the Committee and are not necessarily indicative of the
    views of this Court as to their correctness or applicability. New language is
    indicated by underlining and deleted language is indicated by struck-through type.
    The instructions as set forth in the appendix shall be effective when this opinion
    becomes final.
    2. The amendments as reflected in the appendix are to the Criminal Jury
    Instructions as they appear on the Court’s website at www.floridasupremecourt.org
    /jury_instructions/instructions.shtml. We recognize that there may be minor
    discrepancies between the instructions as they appear on the website and the
    published versions of the instructions. Any discrepancies as to instructions
    authorized for publication and use after October 25, 2007, should be resolved by
    reference to the published opinion of this Court authorizing the instruction.
    -3-
    It is so ordered.
    LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
    and PERRY, JJ., concur.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
    IF FILED, DETERMINED.
    Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
    Criminal Cases
    Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
    Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
    Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
    Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
    State Courts Administrator, Tallahassee, Florida,
    for Petitioner
    Julianne M. Holt, Public Defender, Thirteenth Judicial Circuit, Tampa, Florida;
    Luke Newman of Luke Newman, PA, Tallahassee, Florida; and William Rudolf
    Ponall of Snure & Ponall P.A., Winter Park, Florida,
    Responding with Comments
    -4-
    Appendix
    7.8 DRIVING UNDER THE INFLUENCE
    MANSLAUGHTER
    §§316.193(3)(a)(b)(c)3, 316.193(3)(a), (3)(b), and (3)(c)3., Fla. Stat.
    To prove the crime of Driving under the Influence Manslaughter, the
    State must prove the following three elements beyond a reasonable doubt:
    1.    (Defendant) drove or was in actual physical control of a vehicle.
    2.    While driving or in actual physical control of the vehicle,
    (defendant)
    Give 2a or 2b or both as applicable.
    a.    was under the influence of [alcoholic beverages] [a chemical
    substance] [a controlled substance] to the extent that [his]
    [her] normal faculties were impaired.
    b.      had a [blood] [breath]-alcohol level of .08 or more grams of
    alcohol per [100 milliliters of blood] [210 liters of breath].
    3.    As a result of operating the vehicle, (defendant) caused or
    contributed to the cause of the death of [(victim)] [an unborn
    quick child].
    Give if §§316.193(3)(a)(b)(c)3b 316.193(3)(a), (3)(b), and (3)(c)3.b.,
    Fla. Stat., is charged.
    If you find the defendant guilty of Driving under the Influence
    Manslaughter, you must further determine whether the State proved
    beyond a reasonable doubt that:
    4.    (Defendant), at the time of the crash,
    a. knew or should have known that the crash occurred
    and
    b. failed to give information as required by law
    and
    -5-
    c. failed to render aid as required by law.
    Florida law requires that the driver of any vehicle involved in a crash
    resulting in injury to or death of any person, or damage to any vehicle or
    other property which is driven or attended by any person, must supply [his]
    [her] name, address, and the registration number of the vehicle [he] [she] is
    driving to any person injured in the crash or to the driver or occupant of or
    person attending any vehicle or other property damaged in the crash. Upon
    request and if available, the driver shall also exhibit [his] [her] license or
    permit to drive.
    The driver shall give the same information and, upon request, exhibit
    his or her license or permit, to any police officer who is at the scene of the
    crash or who is investigating the crash.
    The driver shall also render reasonable assistance to any person
    injured in the crash, including carrying, or the making of arrangements for
    the carrying, of such person to a physician, surgeon, or hospital for medical or
    surgical treatment if it is apparent that treatment is necessary, or if such
    carrying is requested by the injured person.
    In the event none of the persons specified above are in condition to
    receive the information to which they otherwise would be entitled, and no
    police officer is present, the driver of a vehicle involved in the crash, after
    trying to fulfill the requirements listed above as much as possible, shall
    immediately report the crash to the nearest office of a duly authorized police
    authority and supply the information specified above.
    Give if applicable. (Offenses committed prior to October 1, 2008, alcohol
    level of .20 or higher.)
    If you find the defendant guilty of Driving under the Influence
    Manslaughter, you must also determine whether the State has proven beyond
    a reasonable doubt whether:
    a.      the defendant had a [blood] [breath]-alcohol level of .15 or
    higher while driving or in actual physical control of the
    vehicle.
    -6-
    b.    the defendant was accompanied in the vehicle by a person
    under the age of 18 years at the time of the driving under
    the influence.
    Definitions. Give as applicable.
    “Vehicle” is every device in, upon, or by which any person or property
    is or may be transported or drawn upon a highway, except devices used
    exclusively upon stationary rails or tracks.
    “Normal faculties” include but are not limited to the ability to see, hear,
    walk, talk, judge distances, drive an automobile, make judgments, act in
    emergencies and, in general, to normally perform the many mental and
    physical acts of our daily lives.
    “Actual physical control of a vehicle” means the defendant must be
    physically in or on the vehicle and have the capability to operate the vehicle,
    regardless of whether [he] [she] is actually operating the vehicle at the time.
    “Alcoholic beverages” are considered to be substances of any kind and
    description which contain alcohol.
    § 877.111(1), Fla. Stat.
    (____________) is a chemical substance under Florida law.
    Chapter 893, Fla. Stat.
    (_____________) is a controlled substance under Florida law.
    § 775.021(5), Fla. Stat.
    An “unborn quick child” is a viable fetus means a member of the
    species Homo sapiens, at any stage of development, and who is carried in the
    womb. A fetus is viable when it becomes capable of meaningful life outside
    the womb through standard medical measures.
    Give if applicable. § 775.021(5)(b), Fla. Stat.
    Driving Under the Influence Manslaughter does not require the State to
    prove that the defendant knew or should have known that (victim) was
    pregnant or that the defendant intended to cause the death of the unborn
    child.
    -7-
    When appropriate, give one or more of the following instructions on the
    presumptions of impairment established by §§ 316.1934(2)(a), (2)(b), and (2)(c),
    Fla. Stat.
    1.   If you find from the evidence that while driving or in actual
    physical control of a motor vehicle, the defendant had a blood or
    breath-alcohol level of .05 or less, you shall presume that the
    defendant was not under the influence of alcoholic beverages to
    the extent that [his] [her] normal faculties were impaired; but this
    presumption may be overcome by other evidence demonstrating
    that the defendant was under the influence of alcoholic beverages
    to the extent that [his] [her] normal faculties were impaired.
    2.    If you find from the evidence that while driving or in actual
    physical control of a motor vehicle, the defendant had a blood or
    breath-alcohol level in excess of .05 but less than .08, that fact
    does not give rise to any presumption that the defendant was or
    was not under the influence of alcoholic beverages to the extent
    that [his] [her] normal faculties were impaired. In such cases, you
    may consider that evidence along with other evidence in
    determining whether the defendant was under the influence of
    alcoholic beverages to the extent that [his] [her] normal faculties
    were impaired.
    3.    If you find from the evidence that while driving or in actual
    physical control of a motor vehicle, the defendant had a blood or
    breath-alcohol level of .08 or more, that evidence would be
    sufficient by itself to establish that the defendant was under the
    influence of alcoholic beverages to the extent that [his] [her]
    normal faculties were impaired. But this evidence may be
    contradicted or rebutted by other evidence demonstrating that the
    defendant was not under the influence of alcoholic beverages to
    the extent that [his] [her] normal faculties were impaired.
    Defense of inoperability; give if applicable.
    It is a defense to the charge of Driving under the Influence
    Manslaughter if at the time of the alleged offense, the vehicle was inoperable.
    However, it is not a defense if the defendant was driving under the influence
    before the vehicle became inoperable. Therefore, if you are not convinced
    beyond a reasonable doubt that the vehicle was operable at the time of the
    alleged offense, you should find the defendant not guilty. However, if you are
    -8-
    convinced that the vehicle was operable at the time of the alleged offense, then
    you should find the defendant guilty, if all the other elements of the charge
    have been proved beyond a reasonable doubt.
    Lesser Included Offenses
    DRIVING UNDER THE INFLUENCE MANSLAUGHTER —
    316.193(3)(a)(b)(c)(3) 316.193(3)(a), (3)(b), and (3)(c)3.
    CATEGORY ONE            CATEGORY TWO FLA. STAT.                    INS. NO.
    Driving under the                               316.193(1)         28.1
    Influence
    Driving under the       316.193(3)(a)      28.3
    influence causing       (b)(c)2
    serious bodily injury 316.193(3)(a),
    (3)(b), and
    (3)(c)2.
    Driving under the       316.193(3)(a)      28.1(a)
    influence causing       (b)(c)1
    damage to person or     316.193(3)(a),
    property                (3)(b), and
    (3)(c)1.
    Comment
    This instruction was adopted in 1981 and amended in 1985 [
    477 So. 2d 985
    ],
    1987 [
    508 So. 2d 1221
    ], 1992 [
    603 So. 2d 1175
    ], 1995 [
    665 So. 2d 212
    ], 1998
    [
    723 So. 2d 123
    ], 2006 [
    946 So. 2d 1061
    ], and 2009 [
    6 So. 3d 574
    ], and 2016.
    -9-
    7.8(a) BOATING UNDER THE INFLUENCE MANSLAUGHTER
    §§327.35(3)(a)(b)(c)3 327.35(3)(a), (3)(b), and (3)(c)3., Fla. Stat.
    To prove the crime of Boating under the Influence Manslaughter, the
    State must prove the following three elements beyond a reasonable doubt:
    1.    (Defendant) operated a vessel.
    2.    While operating the vessel, (defendant)
    Give 2a or 2b or both as applicable.
    a.    was under the influence of [alcoholic beverages] [a chemical
    substance] [a controlled substance] to the extent that [his]
    [her] normal faculties were impaired.
    b.    had a [blood] [breath]-alcohol level of .08 or more grams of
    alcohol per [100 milliliters of blood] [210 liters of breath].
    3.    As a result of operating the vessel, (defendant) caused or
    contributed to the cause of the death of [(victim)] [an unborn
    child].
    Give if §§327.35(3)(a)(b)(c)3.b 327.35(3)(a), (3)(b), and (3)(c)3.b., Fla.
    Stat., is charged.
    If you find the defendant guilty of Boating under the Influence
    Manslaughter, you must further determine whether the State proved beyond
    a reasonable doubt that:
    4.    (Defendant), at the time of the accident,
    a.    knew or should have known that the accident occurred
    and
    b.    failed to give information as required by law
    and
    c.    failed to render aid as required by law.
    - 10 -
    Florida law requires that the operator of a vessel involved in a collision,
    accident, or other casualty, to render to other persons affected by the collision,
    accident, or other casualty such assistance as is practicable and necessary in
    order to save them from or minimize any danger caused by the collision,
    accident, or other casualty, so far as [he] [she] can do so without serious
    danger to the operators own vessel, crew, and passengers.
    Florida law also requires the operator to give [his] [her] name, address,
    and identification of [his] [her] vessel in writing to any person injured and to
    the owner of any property damaged in the collision, accident, or other
    casualty.
    In cases of collision, accident, or other casualty resulting in death or
    medical treatment beyond immediate first aid, Florida law requires that the
    operator, without delay and by the quickest means available, give notice of the
    accident to one of the following agencies: the Division of Law Enforcement of
    the Fish and Wildlife Conservation Commission; the sheriff of the county
    within which the accident occurred; or the police chief of the municipality
    within which the accident occurred.
    Give if applicable.
    If you find the defendant guilty of Boating under the Influence
    Manslaughter, you must also determine whether the State has proven beyond
    a reasonable doubt whether:
    a.    the defendant had a [blood] [breath]-alcohol level of .20 or
    higher while operating the vessel.
    b.    the defendant was accompanied in the vessel by a person
    under the age of 18 years at the time of the boating under
    the influence.
    Definitions. Give as applicable.
    State v. Davis, 
    110 So. 3d 27
    (Fla. 2d DCA 2013).
    “Vessel” means a boat that is subject to a license tax for operationand
    includes every description of watercraft, barge, and airboat, other than a
    seaplane, on the water used or capable of being used as a means of
    transportation on water.
    - 11 -
    “Normal faculties” include but are not limited to the ability to see, hear,
    walk, talk, judge distances, operate a vessel, make judgments, act in
    emergencies and, in general, to normally perform the many mental and
    physical acts of our daily lives.
    “Operate” means to be in charge of or in command of or in actual
    physical control of a vessel upon the waters of this state, or to exercise control
    over or to have responsibility for a vessels navigation or safety while the vessel
    is underway upon the waters of this state, or to control or steer a vessel being
    towed by another vessel upon the waters of the state.
    “Alcoholic beverages” are considered to be substances of any kind and
    description which contain alcohol.
    (            ) is a controlled substance under Florida law. Ch. 893, Fla.
    Stat.
    (            ) is a chemical substance under Florida law. § 877.111(1),
    Fla. Stat.
    § 775.021(5), Fla. Stat.
    An “unborn child” means a member of the species Homo sapiens, at any
    stage of development, and who is carried in the womb.
    Give if applicable. § 775.021(5)(b), Fla. Stat.
    Boating Under the Influence Manslaughter does not require the State to
    prove that the defendant knew or should have known that (victim) was
    pregnant or that the defendant intended to cause the death of the unborn
    child.
    When appropriate, give one or more of the following instructions on the
    presumptions of impairment established by §§ 327.354(2)(a), (2)(b), and (2)(c),
    Fla. Stat.
    1.    If you find from the evidence that while operating or in actual
    physical control of the vessel, the defendant had a [blood] [breath]-
    alcohol level of .05 or less, you shall presume that the defendant
    was not under the influence of alcoholic beverages to the extent that
    [his] [her] normal faculties were impaired; but this presumption
    may be overcome by other evidence demonstrating that the
    - 12 -
    defendant was under the influence of alcoholic beverages to the
    extent that [his] [her] normal faculties were impaired.
    2.    If you find from the evidence that while operating or in actual
    physical control of the vessel, the defendant had a [blood] [breath]-
    alcohol level in excess of .05 but less than .08, that fact does not give
    rise to any presumption that the defendant was or was not under
    the influence of alcoholic beverages to the extent that [his] [her]
    normal faculties were impaired. In such cases, you may consider
    that evidence along with other evidence in determining whether the
    defendant was under the influence of alcoholic beverages to the
    extent that [his] [her] normal faculties were impaired.
    3.    If you find from the evidence that while operating or in actual
    physical control of the vessel, the defendant had a [blood] [breath] -
    alcohol level of .08 or more, that evidence would be sufficient by
    itself to establish that the defendant was under the influence of
    alcoholic beverages to the extent that [his] [her] normal faculties
    were impaired. But this evidence may be contradicted or rebutted
    by other evidence demonstrating that the defendant was not under
    the influence of alcoholic beverages to the extent that [his] [her]
    normal faculties were impaired.
    Defense of inoperability; give if applicable.
    It is a defense to the charge of Boating under the Influence
    Manslaughter if the vessel was inoperable at the time of the alleged offense,
    unless the defendant was controlling or steering the vessel while it was being
    towed by another vessel upon the waters of the state. However, it is not a
    defense if the defendant was boating under the influence before the vessel
    became inoperable.
    - 13 -
    Lesser Included Offenses
    BOATING UNDER THE INFLUENCE MANSLAUGHTER —
    327.35(3)(a)(b)(c)3 327.35(3)(a), (3)(b), and (3)(c)3.
    CATEGORY ONE            CATEGORY TWO FLA. STAT.                    INS. NO.
    Boating under the                                327.35            28.14
    influence
    Boating under the        327.35(3)(a)(b) 28.17
    influence causing        (c)2
    serious bodily injury 327.35(3)(a),
    (3)(b), and
    (3)(c)2.
    Boating under the        327.35(3)(a)(b) 28.15
    influence causing        (c)1
    damage to person or      327.35(3)(a),
    property                 (3)(b), and
    (3)(c)1.
    Comment
    This instruction was adopted in 2009 [
    6 So. 3d 574
    ] and amended in 2016.
    - 14 -
    11.1 SEXUAL BATTERY —
    VICTIM LESS THAN 12 YEARS OF AGE
    §§ 794.011(2)(a) and (2)(b), Fla. Stat.
    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 2d1a, 1b, 1c, and/or 1d as applicable.
    21. 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. The definition of “an object”
    includes a finger.
    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. The
    definition of “an object” includes a finger.
    2.    At the time of the offense, (victim) was less than 12 years of age.
    Give 3a or 3b as applicable.
    3.    a.    At the time of the offense, (Ddefendant) was 18 years of age
    or olderat the time of the sexual battery.
    b.    At the time of the offense, (Ddefendant) was less than 18
    years of ageat the time of the sexual battery.
    - 15 -
    Give if applicable.
    § 794.011(1)(h), Fla. Stat.
    However, any act done for bona fide medical purposes is not a sexual
    battery.
    Definition. Give if applicable.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “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.
    Lesser-Included Offenses
    CAPITAL SEXUAL BATTERY — VICTIM UNDER 12, DEFENDANT 18
    OR OVER — 794.011(2)(a)–(b)
    CATEGORY ONE             CATEGORY TWO           FLA. STAT. INS. NO.
    Sexual battery                                 794.011(2)(b) 11.1
    (Defendant less than
    18, victim less than
    12)
    Sexual battery                                 794.011(5)(a) 11.4
    (Defendant 18 or
    older, victim 12 or
    older but less than 18)
    Sexual battery                                 794.011(5)(b) 11.4
    (Defendant 18 or
    older, victim 18 or
    older)
    - 16 -
    Sexual battery                                           794.011(5)(c)      11.4
    (Defendant younger
    than 18, victim 12 or
    older)
    Lewd or lascivious                                       800.04(4)(a)1.     11.10(a)
    battery (Victim 12 or
    older but less than 16)
    Lewd or lascivious                                       800.04(4)(a)2.* 11.10(b)*
    battery (Victim less
    than 16)*
    Battery                                                  784.03(1)(a)1.     8.3
    Solicitation by person in     794.011(8)(c)      11.5
    familial authority
    Attempt                       777.04(1)          5.1
    Aggravated Battery            784.045(1)(a)      8.4
    Felony Battery                784.041(1)         8.5
    Aggravated assault            784.021(1)(a)      8.2
    Battery                       784.03(1)(a)2.     8.3
    Assault                       784.011            8.1
    Comments
    If the ages of either the defendant or the alleged victim are not in dispute, the
    parties may agree to pare down the necessary lesser-included offenses.
    *It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(2)(a), Fla. Stat., or § 794.011(2)(b), Fla. Stat. If so,
    the judge should instruct only on “sexual activity” and not on “sadomasochistic
    abuse, sexual bestiality, or prostitution,” unless those acts are included in the
    charging document.
    In § 794.011(8)(c), Fla. Stat., the legislature created a crime that mirrors this
    crime except 1) the phrase “engages in any act … which constitutes sexual battery”
    is used and 2) there is an additional element that the defendant was in a position of
    familial or custodial authority to the victim. See Instruction 11.6(a).
    - 17 -
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    This instruction was adopted in 1981 and was amended in 1987 [
    508 So. 2d 1221
    ], 1995 [
    657 So. 2d 1152
    ], 2007 [863 So. 2d 236],and 2015 [
    156 So. 3d 1037
    ], and 2016.
    - 18 -
    11.2 SEXUAL BATTERY — VICTIM 12 YEARS OF
    AGE OR OLDER — GREAT FORCE OR DEADLY WEAPON
    § 794.011(3), Fla. Stat.
    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.
    Give 1a and/or 1b as applicable.
    2.1. 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. The definition of “an object”
    includes a finger.
    Give 2a and/or 2b as applicable.
    3.2. (Defendant), in the process,
    a.     [used or threatened to use a deadly weapon].
    b.     [used actual physical force likely to cause serious personal
    injury].
    4.3. The act was done without the consent of (victim).
    4.    At the time of the offense, (victim) was 12 years of age or older.
    Definitions.
    Give in all cases. § 794.011(1)(a), Fla. Stat.
    “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.
    - 19 -
    Give if applicable.
    § 794.022(4), Fla. Stat.
    Evidence of the victim’s (victim’s) mental incapacity or defect, if any,
    may be considered in determining whether there was an intelligent, knowing,
    and voluntary consent.
    § 794.011(1)(c), Fla. Stat.
    “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.
    § 794.011(1)(b), Fla. Stat.
    “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.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “Union” means contact.
    Give if 32a 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 32b alleged.
    § 794.011(1)(g), Fla. Stat.
    “Serious personal injury” means great bodily harm or pain, permanent
    disability, or permanent disfigurement.
    Give if applicable. § 794.011(1)(h), Fla. Stat.
    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.
    - 20 -
    Lesser-Included Offenses
    SEXUAL BATTERY — VICTIM OVER 12 — WEAPON OR FORCE
    — 794.011(3)
    CATEGORY ONE            CATEGORY TWO       FLA. STAT. INS. NO.
    Sexual battery                             794.011(5)(a) 11.4
    (Defendant 18 or
    older, victim 12 or
    older but less than 18)
    Sexual battery                             794.011(5)(b) 11.4
    (Defendant 18 or
    older, victim 18 or
    older)
    Sexual battery                             794.011(5)(c) 11.4
    (Defendant younger
    than 18, victim 12 or
    older)
    Lewd or lascivious                         800.04(4)(a)1. 11.10(a)
    battery (Victim 12 or
    older but less than 16)
    Lewd or lascivious                         800.04(4)(a)2. 11.10(b)*
    battery (Victim less                       *
    than 16)*
    Battery                                    784.03(1)(a)1. 8.3
    Sexual battery     794.011(4)     11.3
    Attempt            777.04(1)      5.1
    Lewd or lascivious 800.04(4)      11.10 or
    battery                           11.10(a)
    Aggravated battery 784.045(1)(a) 8.4
    Felony battery     784.041(1)     8.5
    Aggravated assault 784.021(1)(a) 8.2
    Battery            784.03(1)(a)2. 8.3
    Assault            784.011        8.1
    - 21 -
    Comments
    If the ages of either the defendant or the alleged victim are not in dispute, the
    parties may agree to pare down the necessary lesser-included offenses. The
    offenses in §§ 794.011(5)(a) – (5)(c), Fla. Stat., however, are included in any
    sexual battery offense charged under § 794.011(3), Fla. Stat., according to
    § 794.011(6)(a), Fla. Stat.
    *It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(3), Fla. Stat. If so, the judge should instruct only on
    “sexual activity” and not on “sadomasochistic abuse, sexual bestiality, or
    prostitution,” unless those acts are included in the charging document.
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    The 2014 legislature added a sentencing multiplier to § 921.0024(1)(b), Fla.
    Stat., for sexual battery crimes involving a defendant 18 years of age or older and a
    victim younger than 18 years of age. If the State has charged and intends to use this
    sentencing multiplier, a special instruction will be necessary for the jury to make
    additional findings regarding ages.
    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
    ], 2008 [
    995 So. 2d 476
    ],
    and2015 [
    156 So. 3d 1037
    ], and 2016.
    - 22 -
    11.3 SEXUAL BATTERY — VICTIM 12 YEARS OF AGE OR OLDER —
    UNDER SPECIFIED CIRCUMSTANCES
    §§ 794.011(4)(a), (4)(b), (4)(c), and (4)(d), Fla. Stat.
    To prove the crime of Sexual Batteryupon a Person 12 Years of Age or
    Older under Under Specified Circumstances, the State must prove the
    followingfour five elements beyond a reasonable doubt:
    1.   (Victim) was 12 years of age or older.
    Give 1a and/or 1b as applicable.
    2.1. 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. The definition of “an object”
    includes a finger.
    Give 2a – 2g as applicable.
    3.2. 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 on
    (victim) 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).]
    - 23 -
    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.]
    4.3. The (Defendant’s) act was committed without the consent of
    (victim).
    Give 4a or 4b as applicable.
    4.   a.     At the time of the offense, (victim) was 12 years of age or
    older [but younger than 18 years of age].
    b.    At the time of the offense, (victim) was 18 years of age or
    older.
    Give 5a or 5b as applicable.
    5.    a.    At the time of the offense, (defendant) was 18 years of age or
    older.
    b.   At the time of the offense, (defendant) was younger than 18
    years of age.
    Definitions.
    Give in all cases.
    § 794.011(1)(a), Fla. Stat.
    “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.
    - 24 -
    Give if applicable.
    § 794.011(9), Fla. Stat.
    Acquiescence to a person reasonably believed by (victim) to be in a
    position of authority or control does not constitute consent and it is not a
    defense that (defendant) was not actually in a position of control or authority if
    the circumstances were such as to lead (victim) to reasonably believe that [he]
    [she] was in such a position.
    § 794.022(4), Fla. Stat.
    Evidence of the victim's (victim’s) mental incapacity or defect, if any,
    may be considered in determining whether there was an intelligent, knowing,
    and voluntary consent.
    § 794.011(1)(c), Fla. Stat.
    “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.
    § 794.011(1)(b), Fla. Stat.
    “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.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “Union” means contact.
    Give if 32a alleged. § 794.011(1)(e), Fla. Stat.
    “Physically helpless” means that a person is unconscious, asleep, or for
    any other reason physically unable to communicate unwillingness to act.
    Give if 32b alleged. § 794.011(1)(g), Fla. Stat.
    “Serious personal injury” means great bodily harm or pain, permanent
    disability, or permanent disfigurement.
    - 25 -
    Give if 32f alleged. § 794.011(1)(j), Fla. Stat.
    “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. § 794.011(1)(h), Fla. Stat.
    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.
    Give if applicable. § 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.
    § 775.0862, Fla. Stat.
    Enhancement for sexual battery against student by school authority figure.
    Applicable only to §§ 794.011(4)(b), (4)(c), and (4)(d), Fla. Stat.
    If you find that (defendant) committed the crime of Sexual Battery
    Under Specified Circumstances, you must also determine whether the State
    has proved beyond a reasonable doubt that (defendant) was an authority
    figure at a school and (victim) was a student at the same school.
    “Authority figure” means a person 18 years of age or older who is
    employed by, volunteering at, or under contract with a school.
    “School” means an organization of students for instructional purposes
    on an elementary, middle or junior high school, secondary or high school, [or
    other public school level authorized under the rules of the State Board of
    Education]. The term “school” does not include facilities dedicated exclusively
    to the education of adults. If needed, insert appropriate definitions from
    § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
    education program” or “early learning program” or “public school as described
    in § 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
    “Florida Virtual School” or the “K-8 Virtual School.”
    “Student” means a person younger than 18 years of age who is enrolled
    at a school.
    - 26 -
    In the event that multiple perpetrators is charged and proven, give
    instruction on enhancement. § 794.023, Fla. Stat.
    Lesser-Included Offenses
    SEXUAL BATTERY — DEFENDANT 18 OR OLDER; VICTIM
    OVER 12 – LESS THAN 18 — UNDER SPECIFIED
    CIRCUMSTANCES — 794.011(4)(a)
    CATEGORY ONE            CATEGORY TWO          FLA. STAT. INS. NO.
    Sexual battery under                          794.011(4)(b) 11.3
    specified
    circumstances
    (Defendant 18 or
    older, victim 18 or
    older)
    Sexual battery under                          794.011(4)(c) 11.3
    specified
    circumstances
    (Defendant younger
    than 18, victim 12 or
    older)
    Sexual battery*                               794.011(5)(a) 11.4*
    *
    Lewd or lascivious                            800.04(4)(a)1. 11.10(a)
    battery (Victim 12 or
    older but less than 16)
    Lewd or lascivious                            800.04(4)(a)2. 11.10(b)*
    battery (Victim less                          **             *
    than 16)**
    Battery                                       784.03(1)(a)1. 8.3
    Lewd or lascivious    800.04(4)      11.10 or
    battery                              11.10(a)
    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
    Battery               784.03(1)(a)2. 8.3
    Assault               784.011        8.1
    - 27 -
    Comments
    * If the ages of either the defendant or the alleged victim are not in dispute,
    the parties may agree to pare down the necessary lesser-included offenses. The
    offenses in §§ 794.011(5)(a) - (5)(d), Fla. Stat., are included in any sexual battery
    offense charged under §§ 794.011(4)(a) - (4)(d), Fla. Stat., respectively, pursuant
    to §§ 794.011(6)(b) - (6)(e), Fla. Stat.
    **It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(4), Fla. Stat. If so, the judge should instruct only on
    “sexual activity” and not on “sadomasochistic abuse, sexual bestiality, or
    prostitution,” unless those acts are included in the charging document.
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    Element 3g: See s. §§ 943.10(1), (2), (3), (6), (7), (8), (9), Fla. Stat., for the
    definition of a law enforcement officer, correctional officer, or correctional
    probation officer who must be either certified pursuant to s. § 943.1395, Fla. Stat.,
    or an elected officer exempt from certification pursuant to s. § 943.253, Fla. Stat.
    If § 794.011(4)(d), Fla. Stat., is charged, this instruction can be used as a
    template with some amendments. Under that statute, the victim must be 12 years of
    age or older, the age of the defendant is irrelevant, and most of the alternatives
    regarding the prior conviction can probably be proven to the judge at a sentencing
    hearing. However, for an enhancement involving a prior conviction for a
    Kidnapping or False Imprisonment involving a minor, wherein the defendant
    committed a sexual battery or some enumerated lewd act upon the minor during
    the course of the kidnapping or false imprisonment, then Apprendi v. New Jersey,
    
    530 U.S. 466
    (2000) is likely to require the jury to make certain findings regarding
    additional circumstances of the prior conviction.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    - 28 -
    In the event that multiple perpetrators is charged and proven, a special
    instruction is necessary. See § 794.023, Fla. Stat.
    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
    ],
    2008 [
    995 So. 2d 476
    ], and2015 [
    156 So. 3d 1037
    ], and 2016.
    - 29 -
    11.4 SEXUAL BATTERY — PERSON 12 YEARS OF AGE OR OLDER
    §§ 794.011(5)(a), (5)(b), (5)(c), and (5)(d), Fla. Stat.
    To prove the crime of Sexual Batteryupon a Person 12 Years of Age or
    Older, the State must prove the followingthree four elements beyond a
    reasonable doubt:
    1.   (Victim) was 12 years of age or older.
    Give 21a or 21b as applicable.
    2.1. 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. The definition of “an object” includes a finger.
    3. 2. The (Defendant’s) act was committed without the consent of
    (victim).
    Give 3a or 3b as applicable.
    3.    a.     At the time of the offense, (victim) was 12 years of age or
    older [but younger than 18 years of age].
    b.     At the time of the offense, (victim) was 18 years of age or
    older.
    Give 4a or 4b as applicable.
    4.    a.    At the time of the offense, (defendant) was 18 years of age or
    older.
    b.    At the time of the offense, (defendant) was younger than 18
    years of age.
    Definitions.
    Give in all cases. § 794.011(1)(a), Fla. Stat.
    - 30 -
    “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.
    § 794.022(4), Fla. Stat.
    Evidence of the victim's(victim’s) mental incapacity or defect, if any, may
    be considered in determining whether there was an intelligent, knowing, and
    voluntary consent.
    § 794.011(1)(c), Fla. Stat.
    “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.
    § 794.011(1)(b), Fla. Stat.
    “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.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “Union” means contact.
    Give if applicable.
    § 794.011(1)(h), Fla. Stat.
    However, any act done for bona fide medical purposes is not a sexual
    battery.
    § 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.
    Give if requested. § 794.022, Fla. Stat.
    (Victim’s) lack of chastity is not a defense to the crime charged.
    - 31 -
    § 775.0862, Fla. Stat.
    Enhancement for sexual battery against student by school authority figure.
    If you find that (defendant) committed the crime of Sexual Battery, you
    must also determine whether the State has proved beyond a reasonable doubt
    that (defendant) was an authority figure at a school and (victim) was a student
    at the same school.
    “Authority figure” means a person 18 years of age or older who is
    employed by, volunteering at, or under contract with a school.
    “School” means an organization of students for instructional purposes
    on an elementary, middle or junior high school, secondary or high school, [or
    other public school level authorized under the rules of the State Board of
    Education]. The term “school” does not include facilities dedicated exclusively
    to the education of adults. If needed, insert appropriate definitions from
    § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
    education program” or “early learning program” or “public school as described
    in § 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
    “Florida Virtual School” or the “K-8 Virtual School.”
    “Student” means a person younger than 18 years of age who is enrolled
    at a school.
    In the event that multiple perpetrators is charged and proven, give
    instruction on enhancement. § 794.023, Fla. Stat.
    - 32 -
    Lesser-Included Offenses
    SEXUAL BATTERY — DEFENDANT 18 OR OVER; VICTIM OVER
    12–LESS THAN 18 — WITHOUT FORCE — 794.011(5)(a)
    CATEGORY ONE            CATEGORY TWO       FLA. STAT. INS. NO.
    Sexual battery                             794.011(5)(b) 11.4
    (Defendant 18 or
    older, victim 18 or
    older)
    Sexual battery                             794.011(5)(c) 11.4
    (Defendant younger
    than 18, victim 12 or
    older)
    Lewd or lascivious                         800.04(4)(a)1. 11.10(a)
    battery (Victim 12 or
    older but less than 16)
    Lewd or lascivious                         800.04(4)(a)2. 11.10(b)*
    battery (Victim less                       *
    than 16)*
    Battery                                    784.03(1)(a)1. 8.3
    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
    Battery            784.03(1)(a)2. 8.3
    Assault            784.011        8.1
    Comments
    If the ages of either the defendant or the alleged victim are not in dispute, the
    parties may agree to pare down the necessary lesser-included offenses.
    *It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(5), Fla. Stat. If so, the judge should instruct only on
    “sexual activity” and not on “sadomasochistic abuse, sexual bestiality, or
    prostitution,” unless those acts are included in the charging document.
    - 33 -
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    If § 794.011(5)(d), Fla. Stat., is charged, this instruction can be used as a
    template with some amendments. Under that statute, the victim must be 12 years of
    age or older, the age of the defendant is irrelevant, and most of the alternatives
    regarding the prior conviction can probably be proven to the judge at a sentencing
    hearing. However, for an enhancement involving a prior conviction for a
    Kidnapping or False Imprisonment involving a minor, wherein the defendant
    committed a sexual battery or some enumerated lewd act upon the minor during
    the course of the kidnapping or false imprisonment, then Apprendi v. New Jersey,
    
    530 U.S. 466
    (2000) is likely to require the jury to make certain findings regarding
    additional circumstances of the prior conviction.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    In the event that multiple perpetrators is charged and proven, a special
    instruction is necessary. See § 794.023, Fla. Stat.
    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 2015 [
    156 So. 3d 1037
    ],
    and 2016.
    - 34 -
    11.5 SOLICITATION OF A CHILD UNDER 18 YEARS OF AGE TO
    ENGAGE IN AN ACT THAT CONSTITUTES SEXUAL BATTERY BY A
    PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY
    § 794.011(8)(a), Fla. Stat.
    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).
    3.1. (Defendant)[commanded] [encouraged] [hired] [requested] [tried
    to induce] solicited (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].
    2.     At the time of the offense, (victim) was less than 18 years of age.
    3.     At the time of the offense, (defendant) was in a position of familial
    or custodial authority to (victim).
    “Sexual Battery” means:
    a.    the sexual organ of the [(defendant)] [(victim)] penetrated or
    had union with the [anus] [vagina] [mouth] of the [(victim)]
    [(defendant)];
    or
    b.    the [anus] [vagina] of [(victim)] [(defendant)] was penetrated
    by an object. The definition of “an object” includes a finger.
    - 35 -
    It is not necessary that a sexual battery actually take place for the crime
    of Solicitation 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. § 794.011(1)(h), Fla. Stat.
    However, any act done for bona fide medical purposes is not a sexual
    battery.
    Definitions. Give if applicable.
    § 777.04(2), Fla. Stat.
    To “solicit” means to command, encourage, hire, or request another
    person to engage in specific conduct.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “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.
    § 775.0862, Fla. Stat.
    Enhancement for sexual offense against student by school authority figure.
    If you find that (defendant) committed the crime of Solicitation of a
    Child to Engage in an Act that Constitutes Sexual Battery by a Person in
    Familial or Custodial Authority, you must also determine whether the State
    has proved beyond a reasonable doubt that (defendant) was an authority
    figure at a school and (victim) was a student at the same school.
    “Authority figure” means a person 18 years of age or older who is
    employed by, volunteering at, or under contract with a school.
    - 36 -
    “School” means an organization of students for instructional purposes
    on an elementary, middle or junior high school, secondary or high school, [or
    other public school level authorized under the rules of the State Board of
    Education]. The term “school” does not include facilities dedicated exclusively
    to the education of adults. If needed, insert appropriate definitions from
    § 775.0862(1)(b), Fla. Stat., for “private school” or “voluntary prekindergarten
    education program” or “early learning program” or “public school as described
    in § 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
    “Florida Virtual School” or the “K-8 Virtual School.”
    “Student” means a person younger than 18 years of age who is enrolled
    at a school.
    Lesser Included Offenses
    No lesser included offenses have been identified for this offense.
    SOLICITATION OF A CHILD TO ENGAGE IN AN ACT THAT
    CONSTITUTES SEXUAL BATTERY BY PERSON IN FAMILIAL
    OR CUSTODIAL AUTHORITY — 794.011(8)(a)
    CATEGORY ONE       CATEGORY TWO    FLA. STAT. INS. NO.
    Lewd or lascivious                 800.04(4)(a)2. 11.10(b)*
    battery*                           *
    Comments
    *When instructing on the lesser-included offense of Lewd or Lascivious
    Battery, the judge should not instruct on the option of forcing a person to engage in
    any sexual act nor should the judge instruct about the acts of sadomasochistic
    abuse, sexual bestiality, or prostitution unless charged. More specifically, if the
    state’s charging document tracks § 794.011(8)(a), Fla. Stat., the only part of Lewd
    or Lascivious Battery that is a necessary lesser-included offense is “encouraging or
    enticing a person less than 16 years old to engage in sexual activity.”
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    The 2014 legislature added a sentencing multiplier to § 921.0024(1)(b), Fla.
    Stat., for sexual battery crimes involving a defendant 18 years of age or older and a
    - 37 -
    victim younger than 18 years of age. If the State charges and intends to use this
    sentencing multiplier, a special instruction will be necessary for the jury to make
    an additional finding regarding the defendant’s age.
    This instruction was adopted in 1987 [
    508 So. 2d 1221
    ] and was amended in
    1995 [
    657 So. 2d 1152
    ], 1997 [
    697 So. 2d 84
    ], and 2015 [
    156 So. 3d 1037
    ], and
    2016.
    - 38 -
    11.6 ENGAGING IN AN ACT WHICH CONSTITUTES SEXUAL
    BATTERY UPON OR WITH A CHILD 12 YEARS OF AGE OR OLDER
    BUT UNDER YOUNGER THAN 18 YEARS OF AGE BY PERSON IN
    FAMILIAL OR CUSTODIAL AUTHORITY
    § 794.011(8)(b), Fla. Stat.
    To prove the crime of Engaging in an Act Which Constitutes Sexual
    Battery Upon or With a Child 12 Years of Age or Older but Younger than 18
    Years of Age 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. 1.    (Defendant) committed an engaged in any act [upon] [with]
    (victim) which constituted sexual battery. 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].
    3. 2. At the time of the offense, (victim) was 12 years of age or older
    but younger than 18 years of age.
    4.3. At the time of the offense, (defendant) was in a position of familial
    or custodial authority to (victim).
    “Sexual Battery” means:
    a.    the sexual organ of the [(defendant)] [(victim)] penetrated or
    had union with the [anus] [vagina] [mouth] of the [(victim)]
    [(defendant)];
    or
    - 39 -
    b.     the [anus] [vagina] of [(victim)] [(defendant)] was penetrated
    by an object. The definition of “an object” includes a finger.
    § 794.011(8), Fla. Stat.
    It is not a defense that (victim) was willing to engage in an acts which
    would constitutes asexual battery or consented to engage in such acts.
    Give if applicable. § 794.011(1)(h), Fla. Stat.
    However, any act done for bona fide medical purposes is not a sexual
    battery.
    Definitions. Give if applicable.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “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.
    § 775.0862, Fla. Stat.
    Enhancement for sexual offense against student by school authority figure.
    If you find that (defendant) committed the crime of Engaging in an Act
    Which Constitutes Sexual Battery Upon or With a Child 12 Years of Age or
    Older but Younger than 18 Years of Age by a Person in a Familial or
    Custodial Authority, you must also determine whether the State has proved
    beyond a reasonable doubt that (defendant) was an authority figure at a school
    and (victim) was a student at the same school.
    “Authority figure” means a person 18 years of age or older who is
    employed by, volunteering at, or under contract with a school.
    “School” means an organization of students for instructional purposes
    on an elementary, middle or junior high school, secondary or high school, [or
    other public school level authorized under the rules of the State Board of
    - 40 -
    Education]. The term “school” does not include facilities dedicated
    exclusively to the education of adults. If needed, insert appropriate definitions
    from § 775.0862(1)(b), Fla. Stat., for “private school” or “voluntary
    prekindergarten education program” or “early learning program” or “public
    school as described in § 402.3025(1)” or “the Florida School for the Deaf and the
    Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
    “Student” means a person younger than 18 years of age who is enrolled
    at a school.
    - 41 -
    Lesser-Included Offenses
    ENGAGING IN AN ACT WHICH CONSTITUTES SEXUAL
    BATTERY UPON OR WITH A CHILD 12 YEARS OF AGE OR
    OLDER BUT UNDER YOUNGER THAN 18 YEARS OF AGE BY
    PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY —
    794.011(8)(b)
    CATEGORY ONE           CATEGORY TWO        FLA. STAT. INS. NO.
    None Sexual battery                        794.011(5)(a) 11.4
    (Defendant 18 or
    older, victim 12 or
    older but younger than
    18)
    Sexual battery                             794.011(5)(b) 11.4
    (Defendant 18 or
    older, victim 18 or
    older)
    Sexual battery                             794.011(5)(c) 11.4
    (Defendant younger
    than 18, victim 12 or
    older)
    Lewd or lascivious                         800.04(4)(a)1. 11.10(a)
    battery (Victim 12 or
    older but younger than
    16)
    Lewd or lascivious                         800.04(4)(a)2. 11.10(b)*
    battery (Victim                            *
    younger than 16)*
    Battery                                    784.03(1)(a)1. 8.3
    Attempt             777.04(1)      5.1
    Lewd or lascivious  800.04(4)      11.10 or
    battery                            11.10(a)
    Aggravated battery  784.045(1)(a) 8.4
    Felony battery      784.041(1)     8.5
    Aggravated assault  784.021(1)(a) 8.2
    Battery             784.03(1)(a)2. 8.3
    Assault             784.011        8.1
    - 42 -
    Comments
    If the ages of either the defendant or the alleged victim are not in dispute, the
    parties may agree to pare down the necessary lesser-included offenses.
    *It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(8)(b), Fla. Stat. If so, the judge should instruct only
    on “sexual activity” and not on “sadomasochistic abuse, sexual bestiality, or
    prostitution,” unless those acts are included in the charging document.
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    In the event that multiple perpetrators is charged and proven, a special
    instruction is necessary. See § 794.023, Fla. Stat.
    The 2014 legislature added a sentencing multiplier to § 921.0024(1)(b), Fla.
    Stat., for sexual battery crimes involving a defendant 18 years of age or older and a
    victim younger than 18 years of age. If the State charges and intends to use this
    sentencing multiplier, a special instruction will be necessary for the jury to make
    an additional finding regarding the defendant’s age.
    This instruction was adopted 1987 [
    508 So. 2d 1221
    ] and was amended in
    1995 [
    657 So. 2d 1152
    ], 1997 [
    697 So. 2d 84
    ], 2008 [
    995 So. 2d 476
    ], and 2015
    [
    156 So. 3d 1037
    ], and 2016.
    - 43 -
    11.6(a) ENGAGING IN AN ACT WHICH [CONSTITUTED SEXUAL
    BATTERY] [INJURED THE SEXUAL ORGAN OF ANOTHER IN AN
    ATTEMPT TO COMMIT SEXUAL BATTERY] BY A PERSON IN
    FAMILIAL OR CUSTODIAL AUTHORITY UPON A PERSON LESS
    THAN 12 YEARS OF AGE
    § 794.011(8)(c), Fla. Stat.
    To prove the crime of Engaging in an Act Which [Constituted Sexual
    Battery] [Injured the Sexual Organ of Another in an Attempt to Commit
    Sexual Battery] by a Person in Familial or Custodial Authority upon a Person
    Less Than 12 Years of Age, the State must prove the following four elements
    beyond a reasonable doubt:
    Give 1a, 1b, 1c, and/or 1d as applicable.
    1.    a.     (Defendant) engaged in 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) engaged in an act [upon] [with] (victim) in
    which the [anus] [vagina] of [(victim)] [(defendant)] was
    penetrated by an object. The definition of “an object”
    includes a finger.
    c.    (Defendant) engaged in an act which 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) engaged in an act which 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. The definition of “an object”
    includes a finger.
    2.    At the time of the offense, (defendant) was in a position of familial
    or custodial authority to (victim).
    - 44 -
    3.    At the time of the offense, (victim) was less than 12 years of age.
    Give 4a or 4b as applicable.
    4.    a.    At the time of the offense, (defendant) was 18 years of age or
    older.
    b.     At the time of the offense, (defendant) was less than 18 years
    of age.
    Give if applicable.
    § 794.011(1)(h), Fla. Stat.
    However, any act done for bona fide medical purposes is not a sexual
    battery.
    Lakey v. State, 
    113 So. 3d 90
    (Fla. 5th DCA 2013).
    “An object” includes a finger.
    “Union” means contact.
    § 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.
    § 794.011(8), Fla. Stat.
    Consent of (victim) is not a defense to the crime charged.
    § 794.022, Fla. Stat.
    (Victim’s) lack of chastity is not a defense to the crime charged.
    - 45 -
    Lesser-Included Offenses
    ENGAGING IN AN ACT WHICH [CONSTITUTED SEXUAL BATTERY]
    [INJURED THE SEXUAL ORGAN OF ANOTHER] BY A PERSON IN
    FAMILIAL OR CUSTODIAL AUTHORITY UPON A PERSON LESS
    THAN 12 YEARS OF AGE; DEFENDANT 18 OR OLDER – 794.011(8)(c)
    CATEGORY ONE           CATEGORY TWO  FLA. STAT. INS. NO.
    Sexual battery                       794.011(2)(a) 11.1
    (Defendant 18 or
    older, victim younger
    than 12)
    Sexual battery                       794.011(2)(b) 11.1
    (Defendant younger
    than 18, victim
    younger than 12)
    Engaging in an act                   794.011(8)(c) 11.6(a)
    which constituted
    sexual battery
    (Victim younger than
    12, defendant younger
    than 18)
    Sexual battery                       794.011(5)(a) 11.4
    (Defendant 18 or
    older, victim 12 or
    older but younger than
    18)
    Sexual battery                       794.011(5)(b) 11.4
    (Defendant 18 or
    older, victim 18 or
    older)
    Sexual battery                       794.011(5)(c) 11.4
    (Defendant younger
    than 18, victim 12 or
    older)
    Lewd or lascivious                   800.04(4)(a)1. 11.10(a)
    battery (Victim 12 or
    older but less than 16)
    - 46 -
    Lewd or lascivious                                       800.04(4)(a)2.* 11.10(b)*
    battery (Victim less
    than 16)*
    Battery                                                  784.03(1)(a)1.     8.3
    Attempt                       777.04(1)          5.1
    Aggravated battery            784.045(1)(a)      8.4
    Felony battery                784.041(1)         8.5
    Aggravated assault            784.021(1)(a)      8.2
    Battery                       784.03(1)(a)2.     8.3
    Assault                       784.011            8.1
    Comments
    If the ages of either the defendant or the alleged victim are not in dispute, the
    parties may agree to pare down the necessary lesser-included offenses.
    *It is unclear whether the “encouraging, forcing, or enticing any person less
    than 16 years of age to engage in … any other act involving sexual activity” part of
    Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla. Stat., is a necessary lesser-
    included offense of § 794.011(8)(c), Fla. Stat. If so, the judge should instruct only
    on “sexual activity” and not on “sadomasochistic abuse, sexual bestiality, or
    prostitution,” unless those acts are included in the charging document.
    There are also sex-related crimes that could be Category 2 offenses
    depending on the charging document and the evidence.
    See Instruction 11.16 or 11.16(a) if the State charged that the defendant
    qualified as a Dangerous Sexual Felony Offender, pursuant to § 794.0115, Fla.
    Stat.
    This instruction was adopted in 2016.
    - 47 -