Bill Text: FL S0692 | 2022 | Regular Session | Enrolled
Bill Title: Sexual Offenses Definitions
Spectrum: Bipartisan Bill
Status: (Passed) 2022-06-06 - Chapter No. 2022-165 [S0692 Detail]
Download: Florida-2022-S0692-Enrolled.html
ENROLLED
2022 Legislature CS for CS for SB 692, 1st Engrossed
2022692er
1
2 An act relating to sexual offenses definitions;
3 amending s. 365.161, F.S.; defining the term “female
4 genitals” and revising the definitions of the terms
5 “sexual battery” and “sexual bestiality”; amending s.
6 491.0112, F.S.; defining the term “female genitals”
7 and revising the definition of the term “sexual
8 misconduct”; amending s. 775.0847, F.S.; defining the
9 term “female genitals” and revising the definitions of
10 the terms “sexual battery” and “sexual bestiality”;
11 amending s. 794.011, F.S.; defining the term “female
12 genitals”; revising the definition of the term “sexual
13 battery”; amending ss. 794.05, 796.07, 800.04, and
14 825.1025, F.S.; defining the term “female genitals”
15 and revising the definition of the term “sexual
16 activity”; amending ss. 827.071 and 847.001, F.S.;
17 defining the term “female genitals” and revising the
18 definitions of the terms “sexual battery” and “sexual
19 bestiality”; amending s. 872.06, F.S.; defining the
20 term “female genitals” and revising the definition of
21 the term “sexual abuse”; amending s. 944.35, F.S.;
22 defining the term “female genitals” and revising the
23 definition of the term “sexual misconduct”; amending
24 s. 951.27, F.S.; requiring that HIV test results
25 performed on inmates arrested for sexual offenses
26 involving female genital penetration be disclosed
27 under certain circumstances; defining the term “female
28 genitals”; amending ss. 288.1254, 395.0197, 415.102,
29 and 847.0141, F.S.; conforming cross-references;
30 providing an effective date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Subsection (1) of section 365.161, Florida
35 Statutes, is amended to read:
36 365.161 Prohibition of certain obscene telephone
37 communications; penalty.—
38 (1) For purposes of this section, the term:
39 (a)(b) “Deviate sexual intercourse” means sexual conduct
40 between persons consisting of contact between the penis and the
41 anus, the mouth and the penis, or the mouth and the vulva.
42 (b) “Female genitals” includes the labia minora, labia
43 majora, clitoris, vulva, hymen, and vagina.
44 (c)(a) “Obscene” means that status of a communication
45 which:
46 1. The average person applying contemporary community
47 standards would find, taken as a whole, appeals to the prurient
48 interests;
49 2. Describes, in a patently offensive way, deviate sexual
50 intercourse, sadomasochistic abuse, sexual battery, bestiality,
51 sexual conduct, or sexual excitement; and
52 3. Taken as a whole, lacks serious literary, artistic,
53 political, or scientific value.
54 (d)(c) “Sadomasochistic abuse” means flagellation or
55 torture by or upon a person, or the condition of being fettered,
56 bound, or otherwise physically restrained, for the purpose of
57 deriving sexual satisfaction from inflicting harm on another or
58 receiving such harm oneself.
59 (e)(d) “Sexual battery” means oral, anal, or female genital
60 vaginal penetration by, or union with, the sexual organ of
61 another or the anal or female genital vaginal penetration of
62 another by any other object.
63 (f)(e) “Sexual bestiality” means any sexual act between a
64 person and an animal involving the sex organ of the one and the
65 mouth, anus, or female genitals vagina of the other.
66 (g)(f) “Sexual conduct” means actual or simulated sexual
67 intercourse, deviate sexual intercourse, sexual bestiality,
68 masturbation, or sadomasochistic abuse; or any act or conduct
69 which constitutes sexual battery.
70 (h)(g) “Sexual excitement” means the condition of the human
71 male or female genitals when in a state of sexual stimulation or
72 arousal.
73 Section 2. Subsection (4) of section 491.0112, Florida
74 Statutes, is amended to read:
75 491.0112 Sexual misconduct by a psychotherapist;
76 penalties.—
77 (4) For the purposes of this section, the term:
78 (a)(d) “Client” means a person to whom the services of a
79 psychotherapist are provided.
80 (b) “Female genitals” includes the labia minora, labia
81 majora, clitoris, vulva, hymen, and vagina.
82 (c)(a) The term “Psychotherapist” means any person licensed
83 pursuant to chapter 458, chapter 459, part I of chapter 464,
84 chapter 490, or chapter 491, or any other person who provides or
85 purports to provide treatment, diagnosis, assessment,
86 evaluation, or counseling of mental or emotional illness,
87 symptom, or condition.
88 (d)(c) “Sexual misconduct” means the oral, anal, or female
89 genital vaginal penetration of another by, or contact with, the
90 sexual organ of another or the anal or female genital vaginal
91 penetration of another by any object.
92 (e)(b) “Therapeutic deception” means a representation to
93 the client that sexual contact by the psychotherapist is
94 consistent with or part of the treatment of the client.
95 Section 3. Paragraphs (c) through (f) of subsection (1) of
96 section 775.0847, Florida Statutes, are redesignated as
97 paragraphs (d) through (g), respectively, a new paragraph (c) is
98 added to that subsection, and present paragraphs (d) and (e) of
99 that subsection are amended, to read:
100 775.0847 Possession or promotion of certain images of child
101 pornography; reclassification.—
102 (1) For purposes of this section:
103 (c) “Female genitals” includes the labia minora, labia
104 majora, clitoris, vulva, hymen, and vagina.
105 (e)(d) “Sexual battery” means oral, anal, or female genital
106 vaginal penetration by, or union with, the sexual organ of
107 another or the anal or female genital vaginal penetration of
108 another by any other object; however, sexual battery does not
109 include an act done for a bona fide medical purpose.
110 (f)(e) “Sexual bestiality” means any sexual act, actual or
111 simulated, between a person and an animal involving the sex
112 organ of the one and the mouth, anus, or female genitals vagina
113 of the other.
114
115 For purposes of sentencing under chapter 921 and determining
116 incentive gain-time eligibility under chapter 944, a felony
117 offense that is reclassified under this section is ranked one
118 level above the ranking under s. 921.0022 or s. 921.0023 of the
119 offense committed.
120 Section 4. Subsections (1), (3), and (8) of section
121 794.011, Florida Statutes, are amended to read:
122 794.011 Sexual battery.—
123 (1) As used in this chapter:
124 (a) “Consent” means intelligent, knowing, and voluntary
125 consent and does not include coerced submission. “Consent” shall
126 not be deemed or construed to mean the failure by the alleged
127 victim to offer physical resistance to the offender.
128 (b) “Female genitals” includes the labia minora, labia
129 majora, clitoris, vulva, hymen, and vagina.
130 (c)(b) “Mentally defective” means a mental disease or
131 defect which renders a person temporarily or permanently
132 incapable of appraising the nature of his or her conduct.
133 (d)(c) “Mentally incapacitated” means temporarily incapable
134 of appraising or controlling a person’s own conduct due to the
135 influence of a narcotic, anesthetic, or intoxicating substance
136 administered without his or her consent or due to any other act
137 committed upon that person without his or her consent.
138 (e)(d) “Offender” means a person accused of a sexual
139 offense in violation of a provision of this chapter.
140 (f)(e) “Physically helpless” means unconscious, asleep, or
141 for any other reason physically unable to communicate
142 unwillingness to an act.
143 (g)(j) “Physically incapacitated” means bodily impaired or
144 handicapped and substantially limited in ability to resist or
145 flee.
146 (h)(f) “Retaliation” includes, but is not limited to,
147 threats of future physical punishment, kidnapping, false
148 imprisonment or forcible confinement, or extortion.
149 (i)(g) “Serious personal injury” means great bodily harm or
150 pain, permanent disability, or permanent disfigurement.
151 (j)(h) “Sexual battery” means oral, anal, or female genital
152 vaginal penetration by, or union with, the sexual organ of
153 another or the anal or female genital vaginal penetration of
154 another by any other object; however, sexual battery does not
155 include an act done for a bona fide medical purpose.
156 (k)(i) “Victim” means a person who has been the object of a
157 sexual offense.
158 (3) A person who commits sexual battery upon a person 12
159 years of age or older, without that person’s consent, and in the
160 process thereof:
161 (a) Uses or threatens to use a deadly weapon; or
162 (b) Uses actual physical force likely to cause serious
163 personal injury
164
165 commits a life felony, punishable as provided in s. 775.082, s.
166 775.083, s. 775.084, or s. 794.0115.
167 (8) Without regard to the willingness or consent of the
168 victim, which is not a defense to prosecution under this
169 subsection, a person who is in a position of familial or
170 custodial authority to a person less than 18 years of age and
171 who:
172 (a) Solicits that person to engage in any act which would
173 constitute sexual battery under paragraph (1)(h) commits a
174 felony of the third degree, punishable as provided in s.
175 775.082, s. 775.083, or s. 775.084.
176 (b) Engages in any act with that person while the person is
177 12 years of age or older but younger than 18 years of age which
178 constitutes sexual battery under paragraph (1)(h) commits a
179 felony of the first degree, punishable by a term of years not
180 exceeding life or as provided in s. 775.082, s. 775.083, or s.
181 775.084.
182 (c) Engages in any act with that person while the person is
183 less than 12 years of age which constitutes sexual battery under
184 paragraph (1)(h), or in an attempt to commit sexual battery
185 injures the sexual organs of such person commits a capital or
186 life felony, punishable pursuant to subsection (2).
187 Section 5. Subsections (2) through (4) of section 794.05,
188 Florida Statutes, are renumbered as subsections (3) through (5),
189 respectively, and subsection (1) of that section is amended to
190 read:
191 794.05 Unlawful sexual activity with certain minors.—
192 (1) A person 24 years of age or older who engages in sexual
193 activity with a person 16 or 17 years of age commits a felony of
194 the second degree, punishable as provided in s. 775.082, s.
195 775.083, or s. 775.084.
196 (2) As used in this section, the term:
197 (a) “Female genitals” includes the labia minora, labia
198 majora, clitoris, vulva, hymen, and vagina.
199 (b) “Sexual activity” means oral, anal, or female genital
200 vaginal penetration by, or union with, the sexual organ of
201 another or the anal or female genital vaginal penetration of
202 another by any other object; however, sexual activity does not
203 include an act done for a bona fide medical purpose.
204 Section 6. Paragraphs (a) through (d) of subsection (1) of
205 section 796.07, Florida Statutes, are redesignated as paragraphs
206 (b) through (e), respectively, a new paragraph (a) is added to
207 that subsection, and present paragraph (d) of that subsection is
208 amended, to read:
209 796.07 Prohibiting prostitution and related acts.—
210 (1) As used in this section:
211 (a) “Female genitals” includes the labia minora, labia
212 majora, clitoris, vulva, hymen, and vagina.
213 (e)(d) “Sexual activity” means oral, anal, or female
214 genital vaginal penetration by, or union with, the sexual organ
215 of another; anal or female genital vaginal penetration of
216 another by any other object; or the handling or fondling of the
217 sexual organ of another for the purpose of masturbation;
218 however, the term does not include acts done for bona fide
219 medical purposes.
220 Section 7. Subsection (1) of section 800.04, Florida
221 Statutes, is amended to read:
222 800.04 Lewd or lascivious offenses committed upon or in the
223 presence of persons less than 16 years of age.—
224 (1) DEFINITIONS.—As used in this section:
225 (a)(c) “Coercion” means the use of exploitation, bribes,
226 threats of force, or intimidation to gain cooperation or
227 compliance.
228 (b) “Consent” means intelligent, knowing, and voluntary
229 consent, and does not include submission by coercion.
230 (c) “Female genitals” includes the labia minora, labia
231 majora, clitoris, vulva, hymen, and vagina.
232 (d)(a) “Sexual activity” means the oral, anal, or female
233 genital vaginal penetration by, or union with, the sexual organ
234 of another or the anal or female genital vaginal penetration of
235 another by any other object; however, sexual activity does not
236 include an act done for a bona fide medical purpose.
237 (e)(d) “Victim” means a person upon whom an offense
238 described in this section was committed or attempted or a person
239 who has reported a violation of this section to a law
240 enforcement officer.
241 Section 8. Subsection (1) of section 825.1025, Florida
242 Statutes, is amended to read:
243 825.1025 Lewd or lascivious offenses committed upon or in
244 the presence of an elderly person or disabled person.—
245 (1) As used in this section, the term:
246 (a) “Female genitals” includes the labia minora, labia
247 majora, clitoris, vulva, hymen, and vagina.
248 (b) “Sexual activity” means the oral, anal, or female
249 genital vaginal penetration by, or union with, the sexual organ
250 of another or the anal or female genital vaginal penetration of
251 another by any other object; however, sexual activity does not
252 include an act done for a bona fide medical purpose.
253 Section 9. Paragraphs (b) through (j) of subsection (1) of
254 section 827.071, Florida Statutes, are redesignated as
255 paragraphs (c) through (k), respectively, a new paragraph (b) is
256 added to that subsection, and present paragraphs (f), (g), and
257 (j) of that subsection are amended, to read:
258 827.071 Sexual performance by a child; penalties.—
259 (1) As used in this section, the following definitions
260 shall apply:
261 (b) “Female genitals” includes the labia minora, labia
262 majora, clitoris, vulva, hymen, and vagina.
263 (g)(f) “Sexual battery” means oral, anal, or female genital
264 vaginal penetration by, or union with, the sexual organ of
265 another or the anal or female genital vaginal penetration of
266 another by any other object; however, “sexual battery” does not
267 include an act done for a bona fide medical purpose.
268 (h)(g) “Sexual bestiality” means any sexual act between a
269 person and an animal involving the sex organ of the one and the
270 mouth, anus, or female genitals vagina of the other.
271 (k)(j) “Simulated” means the explicit depiction of conduct
272 set forth in paragraph (i) (h) which creates the appearance of
273 such conduct and which exhibits any uncovered portion of the
274 breasts, genitals, or buttocks.
275 Section 10. Subsections (6) through (20) of section
276 847.001, Florida Statutes, are renumbered as subsections (7)
277 through (21), respectively, a new subsection (6) is added to
278 that section, and present subsections (14), (15), and (19) of
279 that section are amended, to read:
280 847.001 Definitions.—As used in this chapter, the term:
281 (6) “Female genitals” includes the labia minora, labia
282 majora, clitoris, vulva, hymen, and vagina.
283 (15)(14) “Sexual battery” means oral, anal, or female
284 genital vaginal penetration by, or union with, the sexual organ
285 of another or the anal or female genital vaginal penetration of
286 another by any other object; however, “sexual battery” does not
287 include an act done for a bona fide medical purpose.
288 (16)(15) “Sexual bestiality” means any sexual act, actual
289 or simulated, between a person and an animal involving the sex
290 organ of the one and the mouth, anus, or female genitals vagina
291 of the other.
292 (20)(19) “Simulated” means the explicit depiction of
293 conduct described in subsection (17) (16) which creates the
294 appearance of such conduct and which exhibits any uncovered
295 portion of the breasts, genitals, or buttocks.
296 Section 11. Section 872.06, Florida Statutes, is amended to
297 read:
298 872.06 Abuse of a dead human body; penalty.—
299 (1) As used in this section, the term:
300 (a) “Female genitals” includes the labia minora, labia
301 majora, clitoris, vulva, hymen, and vagina.
302 (b) “Sexual abuse” means:
303 1.(a) Anal or female genital vaginal penetration of a dead
304 human body by the sexual organ of a person or by any other
305 object;
306 2.(b) Contact or union of the penis, female genitals
307 vagina, or anus of a person with the mouth, penis, female
308 genitals vagina, or anus of a dead human body; or
309 3.(c) Contact or union of a person’s mouth with the penis,
310 female genitals vagina, or anus of a dead human body.
311 (2) A person who mutilates, commits sexual abuse upon, or
312 otherwise grossly abuses a dead human body commits a felony of
313 the second degree, punishable as provided in s. 775.082, s.
314 775.083, or s. 775.084. Any act done for a bona fide medical
315 purpose or for any other lawful purpose does not under any
316 circumstance constitute a violation of this section.
317 Section 12. Paragraph (b) of subsection (3) of section
318 944.35, Florida Statutes, is amended to read:
319 944.35 Authorized use of force; malicious battery and
320 sexual misconduct prohibited; reporting required; penalties.—
321 (3)
322 (b)1. As used in this paragraph, the term:
323 a. “Female genitals” includes the labia minora, labia
324 majora, clitoris, vulva, hymen, and vagina.
325 b. “Sexual misconduct” means the oral, anal, or female
326 genital vaginal penetration by, or union with, the sexual organ
327 of another or the anal or female genital vaginal penetration of
328 another by any other object, but does not include an act done
329 for a bona fide medical purpose or an internal search conducted
330 in the lawful performance of the employee’s duty.
331 2. Any employee of the department or a private correctional
332 facility as defined in s. 944.710 who engages in sexual
333 misconduct with an inmate or an offender supervised by the
334 department in the community, without committing the crime of
335 sexual battery, commits a felony of the third degree, punishable
336 as provided in s. 775.082, s. 775.083, or s. 775.084.
337 3. The consent of the inmate or offender supervised by the
338 department in the community to any act of sexual misconduct may
339 not be raised as a defense to a prosecution under this
340 paragraph.
341 4. This paragraph does not apply to any employee of the
342 department or any employee of a private correctional facility
343 who is legally married to an inmate or an offender supervised by
344 the department in the community, nor does it apply to any
345 employee who has no knowledge, and would have no reason to
346 believe, that the person with whom the employee has engaged in
347 sexual misconduct is an inmate or an offender under community
348 supervision of the department.
349 Section 13. Subsection (2) of section 951.27, Florida
350 Statutes, is amended to read:
351 951.27 Blood tests of inmates.—
352 (2) Except as otherwise provided in this subsection,
353 serologic blood test results obtained pursuant to subsection (1)
354 are confidential and exempt from the provisions of s. 119.07(1)
355 and s. 24(a), Art. I of the State Constitution. However, such
356 results may be provided to employees or officers of the sheriff
357 or chief correctional officer who are responsible for the
358 custody and care of the affected inmate and have a need to know
359 such information, and as provided in ss. 775.0877 and 960.003.
360 In addition, upon request of the victim or the victim’s legal
361 guardian, or the parent or legal guardian of the victim if the
362 victim is a minor, the results of any HIV test performed on an
363 inmate who has been arrested for any sexual offense involving
364 oral, anal, or female genital vaginal penetration by, or union
365 with, the sexual organ of another, must shall be disclosed to
366 the victim or the victim’s legal guardian, or to the parent or
367 legal guardian of the victim if the victim is a minor. In such
368 cases, the county or municipal detention facility shall furnish
369 the test results to the Department of Health, which is
370 responsible for disclosing the results to public health agencies
371 as provided in s. 775.0877 and to the victim or the victim’s
372 legal guardian, or the parent or legal guardian of the victim if
373 the victim is a minor, as provided in s. 960.003(3). As used in
374 this subsection, the term “female genitals” includes the labia
375 minora, labia majora, clitoris, vulva, hymen, and vagina.
376 Section 14. Paragraph (j) of subsection (1) of section
377 288.1254, Florida Statutes, is amended to read:
378 288.1254 Entertainment industry financial incentive
379 program.—
380 (1) DEFINITIONS.—As used in this section, the term:
381 (j) “Qualified production” means a production in this state
382 meeting the requirements of this section. The term does not
383 include a production:
384 1. In which, for the first 2 years of the incentive
385 program, less than 50 percent, and thereafter, less than 60
386 percent, of the positions that make up its production cast and
387 below-the-line production crew, or, in the case of digital media
388 projects, less than 75 percent of such positions, are filled by
389 legal residents of this state, whose residency is demonstrated
390 by a valid Florida driver license or other state-issued
391 identification confirming residency, or students enrolled full
392 time in a film-and-entertainment-related course of study at an
393 institution of higher education in this state; or
394 2. That contains obscene content as defined in s. 847.001
395 s. 847.001(10).
396 Section 15. Subsection (10) of section 395.0197, Florida
397 Statutes, is amended to read:
398 395.0197 Internal risk management program.—
399 (10) Any witness who witnessed or who possesses actual
400 knowledge of the act that is the basis of an allegation of
401 sexual abuse shall:
402 (a) Notify the local police; and
403 (b) Notify the hospital risk manager and the administrator.
404
405 For purposes of this subsection, “sexual abuse” means acts of a
406 sexual nature committed for the sexual gratification of anyone
407 upon, or in the presence of, a vulnerable adult, without the
408 vulnerable adult’s informed consent, or a minor. “Sexual abuse”
409 includes, but is not limited to, the acts defined in s.
410 794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
411 vulnerable adult’s or minor’s sexual organs, or the use of the
412 vulnerable adult or minor to solicit for or engage in
413 prostitution or sexual performance. “Sexual abuse” does not
414 include any act intended for a valid medical purpose or any act
415 which may reasonably be construed to be a normal caregiving
416 action.
417 Section 16. Subsection (26) of section 415.102, Florida
418 Statutes, is amended to read:
419 415.102 Definitions of terms used in ss. 415.101-415.113.
420 As used in ss. 415.101-415.113, the term:
421 (26) “Sexual abuse” means acts of a sexual nature committed
422 in the presence of a vulnerable adult without that person’s
423 informed consent. “Sexual abuse” includes, but is not limited
424 to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
425 fondling, exposure of a vulnerable adult’s sexual organs, or the
426 use of a vulnerable adult to solicit for or engage in
427 prostitution or sexual performance. “Sexual abuse” does not
428 include any act intended for a valid medical purpose or any act
429 that may reasonably be construed to be normal caregiving action
430 or appropriate display of affection.
431 Section 17. Subsection (1) of section 847.0141, Florida
432 Statutes, is amended to read:
433 847.0141 Sexting; prohibited acts; penalties.—
434 (1) A minor commits the offense of sexting if he or she
435 knowingly:
436 (a) Uses a computer, or any other device capable of
437 electronic data transmission or distribution, to transmit or
438 distribute to another minor any photograph or video of any
439 person which depicts nudity, as defined in s. 847.001 s.
440 847.001(9), and is harmful to minors, as defined in s. 847.001
441 s. 847.001(6).
442 (b) Possesses a photograph or video of any person that was
443 transmitted or distributed by another minor which depicts
444 nudity, as defined in s. 847.001 s. 847.001(9), and is harmful
445 to minors, as defined in s. 847.001 s. 847.001(6). A minor does
446 not violate this paragraph if all of the following apply:
447 1. The minor did not solicit the photograph or video.
448 2. The minor took reasonable steps to report the photograph
449 or video to the minor’s legal guardian or to a school or law
450 enforcement official.
451 3. The minor did not transmit or distribute the photograph
452 or video to a third party.
453 Section 18. This act shall take effect October 1, 2022.
