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

April 21, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

The crime of sexual battery by someone in familial or custodial authority is regulated under Florida Statutes Section 794.011(8)(b). If a family member or someone in custodial authority sexually batters a minor under the age of 12, this is a capital felony in Florida – punishable by the death penalty. If the minor is over the age of twelve, this is a first-degree felony punishable by up to life in prison.

In Florida, sexual battery is generally considered a serious felony. Sexual battery is defined as someone’s sexual organ or an object penetrating or unifying with the anus, genitals or mouth of a victim without their consent. However, certain allegations may enhance sexual battery charges – making them punishable by an even greater prison sentence. This article will explore one such charge – sexual battery by someone in familial or custodial authority on a minor.

For someone to be convicted of sexual battery by someone in familial or custodial authority on a minor, the State must prove 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

Note: An act done for bona fide (genuine) medical purpose is not a sexual battery. However, ignorance of the victim’s age, the victim’s misrepresentation of their age, or the defendant’s bona fide belief that the victim is not a minor, are not defenses to this charge.

When determining whether “union” occurred for the purposes of sexual battery, an object can include a finger. For there to be “union,” only contact is required, not penetration. Phillips v. State, 238 So. 3d 308 (Fla. 4th DCA 2018); Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

Proving the elements of sexual battery is only the first step in determining whether someone is guilty of the offense. Next, the State must establish the defendant was in a position of familial or custodial authority of the victim for the purposes of enhancing the possible sentence.

For someone to be considered in a position of familial or custodial authority, they must be:

• An adult family member of the minor: This may include parents, stepparents, older siblings or other guardian figures
• An authority figure at a school: A person 18 years of age or older employed by, volunteering at, or under contract with a school
• Otherwise determined to be in such a position by the jury based on the totality of the circumstances

Schools can include elementary, middle or high schools. A student is defined as someone who is attending one of these institutions and is under 18 years of age – thereby incapable of consent to sex under Florida law. 

Florida courts have held that determining that adults in custodial authority are “not limited to those exercising actual custody and control at the time of the sexual activity but includes anyone who stands in a position of authority over the child.” Hallberg v. State, 649 So.2d 1355 (Fla. 1994). 

Whether someone is in a position of familial or custodial authority is determined by the totality of the circumstances. Factors include the nature of the relationship, the level of trust, and the responsibilities assumed by the defendant. Oliver v. State, 977 So.2d 673 (Fla 5th DCA 2008). 

In Oliver, the fact that the victim looked up to the defendant as a father figure, trusted and confided in him, and the incidents occurred when the defendant was alone with the victims, was sufficient for a jury to conclude that the defendant was in a position of familial or custodial authority. Id. 

In cases where the defendant is providing for the victim’s needs, such as food, clothing, and transportation, and is living with the victim, this can establish custodial authority. Teet v. State, 343 So.3d 117 (Fla 5th DCA 2022). But merely being an occasional guest or having a casual relationship without significant responsibilities does not meet the threshold for familial or custodial authority. Johnson v. State, 682 So.2d 215 (Fla 5th DCA 1996).

The statute applies to anyone who stands in a position of authority, not only those with formal legal grants of parental or custodial rights. That position of authority can be established through the factual circumstances of the child’s family structure and the alleged perpetrator’s role within it. Crocker v. State, 752 So.2d 615 (Fla 2d. DCA 1999).

In sum, sexual battery against a minor by someone in a position of familial or custodial authority is punishable by life in prison – or even death if the minor is under twelve. Whether someone is in a familial or custodial position is sometimes easily determined, but such a relationship can be found to exist based on the totality of the circumstances even if it isn’t clear at first. 

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. 

Don Pumphrey Jr. and the experienced criminal defense attorneys at Pumphrey Law have decades of experience fighting to win for clients across the state of Florida. Call now at (850) 681-7777 for a free consultation.

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.

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Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting 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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