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

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.
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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.
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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
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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.
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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.
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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
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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.
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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.
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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.
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“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
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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.
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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.
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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.
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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)
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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).
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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.
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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.
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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
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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
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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.
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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
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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.
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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).
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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.
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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)
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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.
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