Don Waggoner Law

Orlando and Kissimmee Criminal Defense Lawyer and DUI Attorney

DO NOT TALK TO LAW ENFORCEMENT WITHOUT FIRST CONSULTING A LAWYER!!!

SEX OFFENSES | Capital Sexual Battery


Sex with a child under the age of 12 is a capital sexual battery.  This crime is punishable by a mandatory sentence of life in prison.  The only way to avoid this penalty is to win an acquittal at trial or negotiate a better sentence with the prosecutor.  It is called capital sexual battery because it used to be punishable by the death penalty.

Attorney Don Waggoner is an experienced litigator of capital sexual battery. 


He has learned that is extremely important that a person who has been accused of this crime, or who is being questioned about events that could lead to charges, should not and must not make any statements to anyone, especially law enforcement, without first consulting an attorney!  Your defense will be severely hampered by any statements you make to anyone, whether it is law enforcement, your spouse, your boss, or your best friend.  Kissimmee and Orlando Criminal Attorney Don Waggoner will advise you about what to do and help you to preserve your rights


Sexual Battery or Rape

Sexual Battery and Rape are the same thing in Florida.  794.011 Sexual battery.  - means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object without the consent of that person; however, sexual battery does not include an act done for a bona fide medical purpose. 


And, although the above section of the statute doesn’t say it, Sexual Battery or Rape also requires a lack of consent on the part of the alleged victim, unless the alleged victim is less than 16 years old.  This is implied or can be found elsewhere in the statute.

If you have been accused of sexual battery or rape, or feel you may be, do not talk to anyone other than an attorney about it.  Anything you say, even to DCF, your wife, your priest/pastor, or your parents can and will be used against you.  You will not be forgiven and let go just because you told the truth.  You must speak with an attorney first.

Orlando and Kissimmee Sex Crimes Defense Attorney Don Waggoner is an experienced litigator of capital sexual battery. He has learned that is extremely important that a person who has been accused of this crime, or who is being questioned about events that could lead to charges, should not and must not make any statements to anyone, especially law enforcement, without first consulting an attorney! Your defense will be severely hampered by any statements you make to anyone, whether it is law enforcement, your spouse, your boss, or your best friend.  Orlando and Kissimmee Sex Crimes Defense Attorney Don Waggoner will advise you about what to do and help you to preserve your rights.


Capital Sexual Battery  - 794.011 (2)(a)
(2)(a) Sex with a child under the age of 12 is a capital sexual battery. This crime is punishable by a mandatory sentence of life in prison. The only way to avoid this penalty is to win an acquittal at trial or negotiate a better sentence with the prosecutor. It is called capital sexual battery because it used to be punishable by the death penalty.


Non-Capital Sexual Battery - 794.011
All other sexual batteries are considered to be non-capital.   However, if the perpetrator is under 18 and the victim is under 12, it is a 1st degree felony, punishable by up to life in prison.

If the alleged victim of a sexual battery is over 12 years of age, and there is no consent for the sex, the perpetrator commits a 2nd degree felony, punishable by up to 15 years in prison.

If the alleged victim of a sexual battery is over 12 years of age, there is no consent for the sex, and certain circumstances exist, such as coerced submission, (see  794.011), the perpetrator commits a 1st degree felony, punishable by up to 30 years in prison.


Prohibited Defenses
There are two (2) defenses that may not be used in defense of the charge of Sexual Battery.  They are:

  1. Consent, if the victim is less than 12 years old;
  2. Ignorance or belief as to the victim’s age.


Allowed Defenses

Fortunately there are two defenses to Sexual Battery of a person older than 12 that may be used.  They are:

  1.  Consent of the victim;
  2.  False allegation.


Consent

Consent must be found to have been intelligently, knowingly, and voluntarily given in order to be a defense to an accusation of sexual battery and rape.
The failure of the accuser to offer physical resistance will not be deemed consent. Rather it will be something a jury can consider when determining whether the sexual interaction was consensual or coerced submission.

Coerced Submission 
(1st degree felony)
Sexual battery and rape will be deemed coerced submission if force, threats, or intimidation were used to compel the victim to engage in sex with the perpatrator.
It is also not deemed a consensual act, and coerced, if

  1. The victim was physically helpless to resist or physically incapacitated;
  2. When the perpetrator secretly used drugs or alcohol to physically or mentally incapacitate the victim;
  3. When the victim is mentally defective and the perpetrator has reason to believe this or has actual knowledge of this fact;
  4. The perpetrator is a law enforcement officer of any sort;


Not Coerced, but Not Consensual
(2nd degree felony)
A Sexual Battery is not coerced if no physical force or violence likely to cause serious personal injury was used.

False Allegation

False allegations of sexual battery and rape occur frequently in Florida.  People find themselves accused of sexual battery for this reason more than any other.  False allegations lead to false convictions and false imprisonment more often than one would like to believe.
If you can show that the victim

  1. was having an affair;
  2. is jealous;
  3. is trying to get the children on her side in divorce proceedings;
  4. has a mental illness;
  5. or a child victim is being influenced or manipulated by a parent, other family member, other adult, teacher, DCF worker, or law enforcement officer,

you may be able to show evidence of a false allegation.
Investigation of potential reasons for false allegations by the accuser is extremely important in the defense of sexual battery or rape. of sexual battery or rape.
If you are being investigated for Sexual Battery or Rape, call Orlando and Kissimmee Sex Crimes Defense lawyer Don Waggoner before you speak to anyone, or, if you have already spoken with authorities, before you speak to anyone else.  He will offer you a free consultation and advise you of your rights and what action you should take.

Sex crimes in Florida can be grouped into three primary offense categories:

Sexual Battery or Rape

Rape and Sexual Battery in Florida are the same thing and involve any non-consensual sexual activity that occurs as a result of force, coercion, or incapacitation.
For more information, please visit: 794.011 Sexual battery.

Unlawful Sexual Activity with Certain Minors

The crime of Unlawful Sexual Activity with Certain Minors or Statutory Rape occurs when a person 24 years of age or older engages in consensual sex with a 16 or 17 year old child.
For more information, please visit: 794.05 Unlawful Sexual Activity With Certain Minors.

DO NOT CONSENT TO A LIE DETECTOR OR VOICE STRESS TEST

-It will only help to convict you -