Major FL Court AFFIRMS Sexual Battery by Person in Custodial Authority Conviction, One Judge Disagrees

March 5, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Case Summary

A divided 5th District Court of Appeal found that the defendant was in a position of custodial authority to the child victim when he sexually battered her – but one judge did not agree.

• CASE: Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986)
• Charge(s): Sexual battery by a person in familial or custodial authority
• Outcome: Conviction AFFIRMED, as the defendant was in a position of custodial authority to the victim at the time of the offense.

Sexual Battery/Rape Charges in Florida

In Florida, sexual battery by a person in familial or custodial authority (Fla. Stat. 794.011(8)) is a very serious offense. For someone to be guilty, the State must prove all of the following 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 (under age 18)
• At the time, the defendant was in a position of familial or custodial authority to the victim

Sexual battery by a person in a position of familial or custodial authority is a first-degree, PBL felony in Florida. This means it is punishable by up to life in prison.

The impact of the “familial or custodial authority” enhancement is especially notable if a victim is between the ages of 12 and 17. 

If an adult (18+) engages in sexual activity that the alleged victim consented to (not legally, but was found to be a willing participant in the sexual activity), this is usually considered lewd or lascivious battery or lewd or lascivious molestation if the victim is 12 to 15. If the victim is 16 or 17, it is considered unlawful sexual activity with certain minors.

Note: Florida courts have ruled that downward departure sentences (e.g. more lenient than the CPC scoresheet guidelines) are permissible in sexual battery by a person in familial or custodial authority cases on the basis that the victim was a willing participant. However, these are RARE exceptions to the rule. State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999)

It is also critical to note that unlike lewd or lascivious offenses, Florida’s “Romeo and Juliet” law is automatically inapplicable to an alleged sexual battery by a person in familial or custodial authority. For more on Romeo and Juliet (which IS NOT a defense, and only serves as a way to potentially keep defendants off the sex offender registry), click here.

A key question is – when is someone considered to be in a position of familial or custodial authority at the time of the act? 

For a defendant to be considered in a position of familial or custodial authority, at least one of the following must have been true at the time of the offense (Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986)): 

• They maintained a “close relationship” (like that of a parent or guardian) with the alleged child victim or other children of the specified age
• They lived in the same household as the alleged child victim

his leads to another question – how broadly do Florida’s courts apply the sexual battery by a person in familial or custodial authority statute? The answer is that in some cases (such as a parent, close relative, or teacher on school grounds), a position of familial or custodial authority clearly exists. But in other cases, it is not as obvious.

One major case that fell into the latter category was heard by Florida’s 5th DCA (Northeast FL’s highest court). There, the defendant was a family friend who allegedly had sex with a victim (who was between 12 and 17 years of age) when he was supposed to be taking her to the bus stop before school.

Notably, the defendant did NOT live with the victim, was not in a typical “position of custodial authority” (e.g. teacher, religious leader), and was not related to the victim. Nevertheless, the 5th DCA concluded he was in a position of custodial authority at the time of the act – leading him to receive a much harsher prison sentence. 

But one 5th DCA judge disagreed. Let’s take a look at that case – Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986) – and discuss what it means for those in Florida who are charged (or know someone charged) with sexual battery by a person in familial or custodial authority in Florida.

KEY CASE: Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986)

In Collins, the defendant (Collins) was charged with and convicted of sexual battery by a person in a position of familial or custodial authority (Fla. Stat. 794.011(8)). According to the 5th DCA, the following facts emerged at trial:

• The alleged sexual battery occurred while Collins was supposed to be taking the victim to catch the school bus 
• Collins was not related to the victim by blood, and did not live with the victim
• Collins, however, had “many contacts” the victim prior to the incident
• Collins was in daily contact with the victim’s mother 
• The victim’s mother knew that her daughter (the victim) was “in the care” of Collins on the day the crime was committed

After he was convicted, Collins appealed to the 5th DCA – arguing that his conviction should be reversed because he was not in a position of custodial authority. However, the 5th DCA did NOT agree – and AFFIRMED Collins’s conviction. Citing Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986) and Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), the 5th DCA wrote:

“Basically, we agree with the definition supplied by the First District in Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), and Stricklen v. State, 11 FLW 2092 (Fla. 1st DCA Oct. 2, 1986). In Coleman, section 794.011(4)(e), Florida Statutes (1983) was construed by Judge Ervin and the words “familial or custodial” were interpreted “to include within the statute’s proscriptions any person maintaining a close relationship with children of the ages specified in the statute, and who lived in the same household with such children.” Coleman at 1345. The latter portion of the definition—“living in the same household with such children”— was applicable to the facts in Coleman, but was held in Stricklen not to be an essential factor in the definition of “custodial” under the statute; rather, such custody can occur on a temporary basis, as in Stricklen and the instant case.”

“We believe the evidence presented below was sufficient to meet the common understanding of the word “custody”, such as that offered by the trial judge from Webster’s Dictionary.3 The evidence presented showed that the victim had many contacts with the defendant, she had ridden in his truck many times, the defendant had daily contact with the victim’s mother, and, in fact, the mother of the child knew, and approved, that the child was in the care of the defendant on the day the crime was committed. AFFIRMED.”

In essence, the 5th DCA majority ruled that given the “totality of the circumstances,” Collins could fairly be said to have been in a position of custodial authority at the time of the crime. 

However, one 5th DCA judge – Judge Dauksch – disagreed. Finding the evidence didn’t support the majority’s claim that Collins was in a position of custodial authority when the sexual battery occurred, Judge Dauksch wrote in a brief dissent:

“I respectfully dissent. I do not agree with the majority opinion which gives such a broad definition of the word “custodial.” I do not consider one who gives a child a ride in a car to be in custody of that child for the purpose of the criminal sexual activity statute. I agree with the definition in Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), but I would not extend it. In my opinion he did not commit the “familial or custodial” rape.”

But Judge Dauksch’s opinion did not win the day. As a result, Collins’s conviction and sentence were affirmed.

In sum, Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986) marks a significant development in Florida’s corpus of case law regarding when a defendant is considered to have been in a position of familial or custodial authority for purposes of being punished more severely for alleged sexual battery. The 5th DCA found that:

• Collins knew the victim’s mother well, had many previous contacts with the victim, and was tasked with “taking care” of the victim the day the offense occurred
• Even though Collins was not a family member or frequent “custodian” of the victim, he fit the definition at the time of the sexual battery
• As a result, his conviction was AFFIRMED 

Judge Dauksch of the 5th DCA authored a short dissent, in which he argued:

• Collins was simply giving the victim a ride to the bus stop when the offense occurred
• This was insufficient, standing alone, to constitute a position of “custodial authority” (e.g. there was no clear bond of trust/preexisting relationship)
• A proper application of Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986) would’ve resulted in the reversal of Collins’s conviction 

Florida’s criminal defense community should take note of Collins v. State, 496 So.2d 997 (Fla. 5th DCA 1986), as it makes clear that it is not always “obvious” when someone is in a position of familial or custodial authority for sexual battery purposes. To learn more about sexual battery by a person in a position of familial or custodial authority, click here.

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 criminal 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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