North FL’s Highest Court REVERSES Sexual Battery by a Person in Familial or Custodial Authority Conviction – Here’s Why

April 16, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 1st District Court of Appeal ruled that the testimony of the alleged victim did not show the defendant committed sexual battery – as sexual penetration did not occur.

CASE: Watkins v. State, 48 So.3d 883 (Fla. 1st DCA 2010)

Charge(s): Sexual battery by a person in familial or custodial authority

Outcome: Conviction REVERSED, as the victim did not testify that sexual penetration occurred, which was required for the defendant to be guilty of sexual battery.

Sexual Battery by a Person in Familial or Custodial Authority in Florida

In Florida, sexual battery by a person in familial or custodial authority (Fla. Stat. 794.011(8)) is a very serious felony. 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 – punishable by up to life in prison. To learn more about PBL felonies, click here.

If someone is convicted of sexual battery by a person in familial or custodial authority, they are ineligible as a matter of law to avoid the sex offender/predator registry pursuant to the Romeo and Juliet law (Fla. Stat. 943.04354). For more on the Romeo and Juliet law, click here.

The legal impact of the familial or custodial authority enhancement in a sexual battery case is especially significant if the alleged victim was between 12 and 17 years of age, and willingly participated in (but COULD NOT LEGALLY CONSENT to), sexual activity with a defendant.  State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999)

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.

But the potential for the conduct to be considered a “less serious felony” goes out the window when a person is in a position of familial or custodial authority. Due to the power imbalance that exists between the defendant and the victim, the act is automatically considered sexual battery. Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986)

But what does it mean for someone to be in a position of familial or custodial authority? For the defendant to be considered in a position of familial or custodial authority at the time of a sexual battery, 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 (e.g. teachers during the school year)
• They developed a “parent- or grandparent-like bond of trust” with the victim 
• They lived in the same household as the alleged child victim

If someone is accused of sexual battery by a person in familial or custodial authority (Fla. Stat. 794.011(8)), they may believe any “sexual activity” that occurred with the victim automatically qualifies as a violation of the statute. However, this is not the case – because a sexual battery must be proven to have occurred. 

For someone to be guilty of sexual battery in Florida, the State must prove the following beyond a reasonable doubt:

• The defendant orally, anally, or vaginally penetrated the victim using an object or their sexual organ, or had the victim do any of this to them
• The victim did not consent to this (either due to being unable to legally consent or the act being done against the victim’s will)

Consent occurs when someone is 18 or older (e.g. an adult) and engages in a sexual act of their own free will, WITHOUT the use of force or coercion to get them to participate. A few things are critical to know about consent:

• Someone does not have to physically resist for a lack of consent to be established
• Someone who is unconscious, asleep, or otherwise unable to physically communicate an unwillingness to engage in a sexual act cannot consent (Coley v. State, 616 So.2d 1017 (Fla. 3d. DCA 1993))
• Minors (under the age of 18) cannot consent to sex under ANY circumstances – however, “willing participation” of a minor between the ages of 12 and 17 may result in a lewd or lascivious charge rather than a charge of sexual battery (State v. Stalvey, 795 So.2d 968 (Fla. 1st DCA 2000))

Note: The law is clear that minors cannot consent to sex. However, in sexual battery by a person in a position of familial or custodial authority cases, “willing participation” of an alleged victim can occasionally (but NOT frequently) be used as a basis for a downward departure sentence. For more, click here.

Sometimes, a defendant will be charged with sexual battery by a person in familial or custodial authority after an alleged sexual act between themselves and a minor victim. In such cases, the defendant may move to dismiss the charge on one of the two following grounds:

• The defendant was NOT in a position of familial/custodial authority (quite common)
• The defendant is NOT alleged to have committed a sexual battery 

Though the latter is rare, in certain cases, an alleged victim may testify to a set of events that DO NOT establish sexual penetration. If this occurs (e.g. if only sexual contact is said to have taken place, rather than oral, anal, or vaginal penetration), a defendant is entitled to the DISMISSAL of a sexual battery charge unless other evidence corroborates penetration having occurred.

In one major sexual battery by a person in familial or custodial authority case, a defendant was convicted after the victim testified that the defendant forced her to “lick” his butt and anus. The victim indicated, however, that her tongue never actually entered his anus.

Though this seemed like an insignificant detail at the trial level, Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) reversed the defendant’s sexual battery by a person in familial or custodial authority conviction on this basis.

The 1st DCA found no sexual battery had occurred as a matter of law because the victim testified that NO SEXUAL PENETRATION occurred. One 1st DCA judge dissented.

Let’s take a look at that case – Watkins v. State, 48 So.3d 883 (Fla. 1st DCA 2010) – and discuss what it means for defendants in Florida charged with sexual battery by a person in a position of familial or custodial authority (or sexual battery more generally).

KEY CASE: Watkins v. State, 48 So.3d 883 (Fla. 1st DCA 2010)

In Watkins, the defendant (Watkins) was charged with sexual battery by a person in a position of familial or custodial authority on a victim between ages 12 and 17. Watkins was CONVICTED and appealed to the 1st DCA. At trial, the following colloquy occurred when the victim testified:

• The victim said that she had to pull the defendant’s pants down and “lick his butt cheeks, crack, and anus.” 
• The prosecutor asked: “When you licked his anus was your tongue actually on his anus, in his anus?”
• The victim replied: ““On it, yes.”

This testimony was the sole evidence against Watkins at trial. The jury believed the victim and found him guilty of sexual battery.

On appeal, Watkins argued he was entitled to the REVERSAL of his sexual battery by a person in a position of familial or custodial authority conviction on the basis that the evidence did not prove a sexual battery occurred. Watkins claimed:

• The victim was given the opportunity to testify that penetration occurred (e.g. that her tongue entered his anus)
• She specifically told the prosecutor her tongue was “on” it, not in it
• Because actual penetration (e.g. going inside) was required to violate the sexual battery statute, he could not be found guilty as a matter of law

The 1st DCA AGREED with Watkins and reversed his sexual battery by a person in a position of familial or custodial authority conviction, REMANDING the matter to the lower court for further proceedings (e.g. so Watkins could be charged with a lesser offense). The 1st DCA wrote:

“It is well-established that evidence of “even the slightest penetration” will sustain a conviction for sexual battery. See, e.g., Marles v. State, 937 So.2d 720 (Fla. 5th DCA 2006) (determining that the five-year-old victim’s testimony that the defendant “ ‘put his finger in my private’ ” was sufficient to prove sexual battery). No one could argue that defendant’s conduct was anything less than reprehensible. Nevertheless, although the victim was given the opportunity to testify that she had to put her tongue in defendant’s anus, she said instead that she had put her tongue on it, which does not constitute even slight penetration. Case law has made it clear that evidence of union (“on”) cannot suffice to prove penetration (“in”). We must leave it to the legislature to address whether to amend the statute to encompass the kind of act described herein.”

However, one 1st DCA judge – Judge Bradford Thomas – disagreed with the majority’s logic. Arguing there was sufficient evidence when viewing the testimony “in a light most favorable to the State” to conclude a sexual battery occurred, Judge Thomas wrote:

“Here, it is plain the jury could reasonably infer that Victim was reluctant to graphically describe in any more detail the criminal conduct committed against her, and that her tongue did in fact penetrate his anus. Properly viewed in a light most favorable to the State, this court should affirm the jury’s verdict. It was within the jury’s province, which saw Victim’s demeanor and heard the entire context of the testimony, to conclude that the evidence established Appellant’s guilt. In Lynch, the supreme court stated that a trial court should submit a criminal case to a jury where “there is room for a difference of opinion between reasonable [persons] as to the proof of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts.” 293 So.2d at 45 (emphasis added); Marles v. State, 937 So.2d 720, 721 (Fla. 5th DCA 2006) (holding that although evidence of penetration was “far from crystal clear,” it was sufficient to satisfy State’s burden of proof).”

However, Judge Thomas’s dissenting opinion did not win the day. As a result, Watkins’s sexual battery conviction was reversed.

In sum, Watkins v. State, 48 So.3d 883 (Fla. 1st DCA 2010) marks a significant development in Florida’s corpus of case law surrounding sexual battery by a person in a position of familial or custodial authority. The 1st DCA (Tallahassee and North FL’s highest court) found that:

• The victim did not sexually penetrate Watkins 
• Actual penetration was required for sexual battery to occur under Florida law
• As the victim specifically testified that her tongue was “on,” not “in” Watkins’s anus, he was entitled to the REVERSAL of his sexual battery by a person in a position of familial or custodial authority conviction

Judge Thomas disagreed, arguing that the jury could have reasonably inferred that the victim did indeed penetrate Watkins.

Florida’s criminal defense community should take note of Watkins v. State, 48 So.3d 883 (Fla. 1st DCA 2010), as it shows that a motion for judgment of acquittal (MJOA) in a sexual battery case should be granted if the victim does not testify to sexual penetration (and no other evidence of it exists). 

If someone is arrested and formally charged in Florida in a case involving alleged sexual battery, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

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.

  Social Share