Major FL Court: Older Cousin Was NOT In Position of Familial or Custodial Authority for Sexual Battery Purposes

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

Case Summary

Florida’s 5th District Court of Appeal ruled that the older cousin of the victim was not in a position of familial or custodial authority as a matter of law, requiring reversal of his conviction.

• CASE: Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996)
• Charge(s): Sexual battery by a person in familial or custodial authority
• Outcome: Conviction REVERSED, as Johnson was NOT in a position of familial or custodial authority to the victim at the time of the offense.

Sexual Battery Charges in Florida

In Florida, sexual battery by a person in a position of familial or custodial authority (Fla. Stat. 794.011(8)(b)) is a very serious felony 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 
• At the time, the defendant was in a position of familial or custodial authority to the victim

Note: 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. Seagrave v. State, 802 So. 2d 281 (Fla. 2001).

Sexual battery by a person in a familial or custodial authority is a first-degree PBL felony. It is punishable by up to life in prison. Moreover, someone who is convicted of sexual battery by a person in a position of familial or custodial authority is required to register as a sex offender – and is ineligible for any statutory exemption from this mandate (e.g. Romeo and Juliet law).

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 an alleged victim consented to (NOT legally, but was found to be a willing participant in the sexual activity), this is typically 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.

However, because of the “power imbalance” between those in a position of familial or custodial authority and the victim, the Florida Legislature makes any sexual penetration (or union) of a victim under the age of 18 by someone in such a position a first-degree PBL felony (regardless of whether the victim was a “willing participant”).

Note: Courts have been consistent that downward departure sentences (e.g. more lenient than the CPC scoresheet guidelines) may be handed down by a judge in sexual battery by a person in a position of familial or custodial authority on the basis that the victim was a willing participant. However, this is very RARE. State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999)

Given all of this, the logical next question becomes – when is a person in a position of familial or custodial authority for purposes of committing sexual battery? Though this term is not formally defined in the statute, Florida courts are clear that 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)): 

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

As you may be able to guess, it is often clear that someone is in a position of familial or custodial authority for sexual battery purposes under Florida law. Examples of cases where a dispute as to the familial/custodial authority status of the defendant include parents, adult siblings, and school employees (e.g. teachers) with direct supervisory authority over the victim at the time.

But in some cases, it is not entirely clear that the defendant was truly in a position of familial or custodial authority to the victim. As a result, the defendant may move before trial (especially if the victim is over age 12) to DISMISS a sexual battery by a person in a position of familial or custodial authority charge on the basis that they were/are not “covered” by the statute.

In the event that a motion to dismiss is filed (or a motion for a judgment of acquittal is made at trial on a sexual battery by a person in a position of familial or custodial authority charge), the judge has two options:

• Grant the motion to dismiss/motion for judgment of acquittal ENTIRELY, leading to the dismissal of the charge (this will occur only if the evidence is insufficient as a matter of law to establish any sexual battery occurred)
• Grant the motion to dismiss/MJOA in part by reducing the sexual battery by a person in a position of familial/custodial authority charge to a lesser offense (such as simple sexual battery or lewd or lascivious battery)
• Deny the motion to dismiss/MJOA, resulting in the case proceeding as charged

If a defendant is found guilty of sexual battery by a person in a position of familial or custodial authority at trial, they may appeal their conviction on the basis that they were wrongly classified as a person in a position of familial/custodial authority when they were charged (and the judge erroneously denied their motion to dismiss/MJOA on these grounds).

If and when this occurs, the Florida District Court of Appeal that has jurisdiction over the trial court will determine if, as a matter of law, the judge erred in continuing to classify the defendant as a person in a position of familial/custodial authority. In the event that the defendant was NOT actually in such a position, the DCA may do any of the following:

• Reverse the sexual battery by a person in a position of familial or custodial authority (PBL) conviction and enter a conviction for first- or second-degree felony sexual battery, requiring the defendant to be resentenced (likely to a less harsh prison term)
• Reverse the sexual battery by a person in a position of familial or custodial authority (PBL) conviction and enter a conviction for a lewd or lascivious offense, such as lewd or lascivious battery (also requiring resentencing)
• Reverse the sexual battery by a person in a position of familial or custodial authority (PBL) and remand for a new trial on the lesser charge(s) (e.g. due to evidentiary errors independent of the charging issue) 
• Reverse and discharge the defendant, finding insufficient evidence as a matter of law was presented to sustain the conviction (VERY rare in such cases)

In one major case heard by Florida’s 5th District Court of Appeal (Northeast FL’s highest court), a defendant who was an older cousin of the 14-year-old victim was charged with and convicted of – 3 counts of sexual battery by a person in a position of familial or custodial authority. 

On appeal, the defendant argued he was wrongly classified as a person in a position of familial authority to the victim. The 5th DCA agreed, reversing the convictions and ordering a retrial on the lesser offense of lewd or lascivious act (since reclassified as lewd or lascivious battery, a second-degree felony).

Let’s look at that case – Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996) – and discuss what it means for those in Florida who are (or know someone) charged with sexual battery by a person in a position of familial or custodial authority in Florida.

KEY CASE: Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996) 

In Johnson, the defendant (Johnson) was convicted of three counts of sexual battery by a person in a position of familial or custodial authority and one count of a lewd or lascivious act (e.g. lewd or lascivious battery). According to the 5th DCA, the following facts emerged at trial:

• Johnson was an occasional overnight guest at the home of the victim
• Johnson would normally sleep in the living room and sometimes answered the phone
• Although the victim “listened to” Johnson and usually “did what he said” while he was there, she testified that she did not “take orders” from him – only from her parents
• The victim also testified that she never saw Johnson as a father figure and Johnson was never responsible for her care
• The victim engaged in the sexual activity with Johnson willingly (but could not legally consent) and the activity was done while her parents were not home

Johnson moved before trial to dismiss the sexual battery by a person in a position of familial or custodial authority charges, arguing he was not covered by the statute. However, the trial judge disagreed and DENIED the motion. The case proceeded to trial, where Johnson was found guilty on all counts.

On appeal, Johnson made three arguments to the 5th DCA:

• There was insufficient evidence at trial that he was in a position of familial or custodial authority at the time of the offenses
• Johnson was entitled to a sexual battery jury instruction as a lesser-included offense (this was quickly rejected by the 5th DCA)
• Johnson was entitled to a mistrial because the State asked a defense witness about the credibility of the victim, to which the defense objected – however, the objection was overruled by the trial judge and the witness testified that she found the victim credible

The 5th DCA agreed with Johnson on the third issue, finding that the State engaged in improper bolstering of the victim’s credibility by asking the defense witness about this. Thus, Johnson was entitled to a mistrial – requiring that he be tried again. The 5th DCA wrote:

“In respect to the third issue we find that the trial court clearly erred in allowing the state, over defense objection, to elicit from a defense witness, Ms. Johnson, her opinion as to the credibility of the victim, the state’s principal witness, who had previously testified in the case. Capehart v. State, 583 So.2d 1009, 1013 (Fla. 1991), cert. denied., 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992). Given the crucial importance of the victim’s credibility in this case, we cannot consider this error harmless, as urged by the state. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Nor was the error invited by the defense line of questioning. Therefore, a new trial on all counts is required.”

But what charges would Johnson be “retried” on at his new trial – sexual battery by a person in a position of familial or custodial authority, or a lesser offense? The 5th DCA resolved this issue in Johnson’s favor, DISMISSING the sexual battery charges against him because he was NOT in a position of familial/custodial authority at the time of the crimes. The 5th DCA wrote:

“In the instant case, the evidence of “familial or custodial authority” is that Johnson, an older cousin of the 14 year old minor victim, was an occasional overnight guest at her home. During these occasions Johnson normally slept in the living room of the home, and sometimes answered the phone. Although the victim “listened to” her cousin, and “pretty much did what he said” during these visits, she testified she “did not take orders” from him, but only from her parents. She further testified she never looked upon Johnson as a father figure, and paid him no special respect or courtesy that she would not show to any older person. She also testified that Johnson had never been responsible for her care.”

“The sexual activity occurred at times when she and Johnson were alone in the home. Based upon the opinions in Rawls and Hallberg, we are constrained to find that the trial judge erred in denying the defendant’s motion for judgment of acquittal as to the three first degree felony charges of sexual activity with a minor by a person in familial or custodial authority. Accordingly, we reverse and remand for a new trial on the three lesser included offenses of lewd and lascivious acts with a minor pursuant to Counts I, II and III of the information, and for a new trial on the original charge in Count IV. REVERSED AND REMANDED.”

Put simply, the 5th DCA found that since the victim willingly engaged in the activity (according to the trial record) and her testimony indicated Johnson was not in a position of authority to her, the appropriate charges for him to be retried on were lewd or lascivious act (lewd battery), NOT sexual battery by a person in a position of familial or custodial authority.

In sum, Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996) marks a significant development in Florida’s corpus of case law surrounding when someone is in a position of familial or custodial authority for sexual battery purposes. The 5th DCA found that:

• Johnson was not an “authority figure” to the victim
• The victim did not “take orders” from Johnson, she never looked up to him as a father figure, and Johnson did not live full-time with the victim
• Moreover, the unlawful activity did not occur against the victim’s will
• Thus, at his new trial, Johnson could only be charged the less serious felony of lewd or lascivious act (lewd or lascivious battery in 2026) – NOT sexual battery by a person in a position of familial or custodial authority

Florida’s criminal defense community should take note of Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996), as it condemns witness bolstering in sexual battery cases – and makes clear that just because a State charges someone with sexual battery by a person in a position of familial or custodial authority, this does not mean they were actually in such a position.

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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