Defenses to Sexual Battery By a Person in Familial or Custodial Authority in Florida

July 11, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, sexual battery by someone in familial or custodial authority on a minor is an extremely serious felony offense (Florida Statutes Section 794.011(8)(b)). If a family member or someone in custodial authority commits sexual battery on a minor under the age of 12, this is a capital felony punishable by the death penalty under Florida law. If the minor is between 12 and 17, this is a first-degree felony punishable by up to life in prison.

For someone to be proven guilty of sexual battery by someone in familial or custodial authority on a minor, the State must establish the following elements beyond a reasonable doubt:

• The defendant engaged in an act that constituted sexual battery on the victim
• At the time, the victim was a minor 
• At the time, the defendant was in a position of familial or custodial authority to the victim

Under Fla. Stat. Section 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 (such as a finger), except for a bona fide medical purpose.

Being charged with felony sexual battery on a minor by a person in familial or custodial authority is extremely serious. If the minor is under the age of 12, a conviction is punishable by the death penalty (or mandatory life in prison if the State does not seek death), or up to life in prison if the victim is between ages 12 and 17 (with a 25 year mandatory minimum).

Note: The U.S. and Florida Supreme Courts have ruled the death penalty is unconstitutional for sexual battery (including of a minor). The tension between Florida’s capital sexual battery statute and these decisions (Buford v. State, 403 So. 2d 943 (Fla. 1981) and Kennedy v. Louisiana, 554 U.S. 407 (2008)) is currently the subject of ongoing legal debate. 

If someone is accused of sexual battery by a person in familial or custodial authority, this may seem like a hopeless situation. However, various defenses exist to the charge. This blog will discuss the lawful defenses to a charge of sexual battery by a person in familial or custodial authority in Florida.

The first defense to this charge is that the defendant is not a family member or custodian of the alleged victim under Florida law. Though this will not allow someone accused to entirely escape punishment for the underlying conduct, this argument can be used to fight a key element of the charge.

For someone to be considered a family member or custodian of the child victim for purposes of enhancing the charge brought against them, they must be a person who meets at least one of the following criteria under Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986):

• They maintained a “close relationship” with the alleged child victim or other children of the specified age (such as a school employee)
•  They lived in the same household as the alleged child victim

The term “familial authority” in Florida is defined as a relationship that creates “a recognizable bond of trust” like that between a child and a father, grandfather, uncle, or guardian. Crocker v. State, 752 So.2d 615 (Fla. 2d. DCA 1999). 

If someone does not fit this definition and the alleged sexual battery involves a victim between the ages of 12 and 17, the sentence someone may face if found guilty may not be quite as harsh (up to 30 years with no statutory minimum without the enhancement, up to life in prison with a 25-year statutory minimum with the enhancement).

Turning to complete defenses to the charge, the first of these is actual innocence or mistaken identity. This is one of the most fundamental defenses in American law – that the accused did not commit the offense.

A defense of actual innocence (or mistaken identity) can be supported by any of the following facts:

• Alibi evidence showing the accused was elsewhere when the alleged battery occurred
• Witness testimony refuting the claim 
• Forensic evidence (DNA, lack of biological evidence, etc.) that fails to support or even contradicts the allegation

Another defense (which may go hand-in-hand with an actual innocence defense) is the defense of false allegation or fabrication.

In certain cases, a minor may make a false allegation of sexual battery for reasons such as:

• Divorce or custody disputes
• Coaching or influence by another adult
• Retaliation and/or emotional manipulation

A thorough investigation into potential motives, prior statements, and inconsistencies is critical if a false allegation is suspected.

A key component of defending against a charge of sexual battery by a family member or person in custodial authority is challenging the admissibility of child hearsay. Hearsay is an out of court statement offered in court to prove the truth of the matter asserted in the statement. 

Under Fla. Stat. Section 90.803(23), out of court allegations of child abuse can be used as substantive evidence in court if the following are true:

• The out of court (hearsay) statement is nontestimonial in nature (such as a disclosure to a parent or teacher, or an initial 911 call reporting the abuse right after it happens)
• The child has a physical, emotional, mental or developmental age of 17 or younger
• There is a substantial likelihood that the child would experience serious mental or emotional harm from testifying 
• The statement is not considered untrustworthy (courts use various factors such as age, nature and duration of the abuse, spontaneity of the statement, terminology used by the child, etc. to evaluate trustworthiness)

But in certain cases – if the child hearsay is considered testimonial in nature – a child’s out of court disclosures of abuse are inadmissible unless the child testifies and the defendant has the opportunity to cross-examine the alleged victim. Crawford v. Washington, 541 U.S. 36 (2004). 

If the court finds a child’s out of court disclosure is testimonial hearsay (made for the primary purpose of facilitating an investigation or prosecution), the child is likely to have to testify and be subject to cross-examination. This may change the direction of a case (if facts emerge during cross-examination that undercut the credibility or veracity of the allegation).

Another component of a defense against an allegation of sexual battery by a family member or person in custodial authority is observing an absence of corroborating evidence. If the State fails to show certain evidence (such as DNA, potential injuries, or other forensic findings) of the event that may be expected to be found if it occurred, this can establish reasonable doubt.

An additional aspect of defending against a sexual battery by a family member or person in custodial authority charge (Fla. Stat. Section 794.011(8)(b)) is improper police procedures or violations of a suspect’s constitutional rights. This may include:

• Unlawful search and seizure: If law enforcement violates someone’s Fourth Amendment rights by searching an area or seizing evidence without receiving the necessary legal permissions, the recovered evidence may be ruled “fruit of the poisonous tree” subject to suppression. Wong Sun v. United States, 371 U.S. 471 (1963)
• Miranda violations: If law enforcement officers fail to read a suspect their Miranda rights, do so after already initiating interrogation, or use trickery or coercion to obtain a Miranda waiver, statements (including confessions) made by the suspect during that interrogation are inadmissible in court. Miranda v. Arizona, 384 U.S. 436 (1966)

Another critical aspect of defending against a charge of sexual battery under Fla. Stat. Section 794.011(8)(b) is challenging the methods used during the forensic interview of the child (CPT interview). These may include:

• Leading questions that suggest answers 
• Failure to properly record the full interview
• Coaching or contamination of memory

As it is considered testimonial hearsay, Florida’s courts have been consistent that tape of a CPT interview is inadmissible in court unless both the child and the forensic interviewer testify and face cross-examination by the defendant. Even then, it is limited to rebutting defense allegations of recently developed motive to lie or fabricate (must have arisen between the time of the CPT interview and the child’s current testimony). Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011)

In many cases, expert witnesses may also be a critical part of a defense. In cases involving an allegation of sexual battery by a family member or person in custodial authority, experts can be used to inform the jury about topics such as:

• Medical findings (alternative explanations)
• Child memory and suggestibility (source misattribution, etc.)
• Reliability (or lack thereof) of forensic methods utilized in the case

Though there are various legally valid defenses to a sexual battery by a family member or person in custodial authority charge, defenses that are not legally valid include:

• Mistake of age
• Consent (if the victim was a minor)
• Sexual history of the victim (generally inadmissible unless someone other than the accused was the source of relevant physical evidence, such as semen, in the case)
• Victim initiated the contact

In sum, sexual battery by a family member or person in custodial authority (Fla. Stat. Section 794.011(8)(b)) is one of the most serious criminal charges in Florida. If the child victim is under 12, the law authorizes the death penalty – and if the child victim is between 12 and 17, a conviction carries a sentence of 25 years (minimum) to life in prison.

However, various defenses exist to this charge. These include actual innocence, mistaken identity or alibi, false allegations, challenges to child hearsay, challenges to CPT interviewing techniques, challenges to or observation or a lack of forensic evidence, relevant expert testimony, and more.

If someone is charged in a case involving alleged sexual battery by a family member or person in custodial authority, it is critical to seek out experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to hefty fines and prison time. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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