NCJ Number
50063
Journal
University of Florida Law Review Volume: 30 Issue: 2 Dated: (WINTER 1978) Pages: 419-445
Date Published
1978
Length
27 pages
Annotation
THIS NOTE EXAMINES THE SECTIONS OF THE SEXUAL BATTERY CODE ENACTED BY THE FLORIDA LEGISLATURE IN 1974. EMPHASIS IS PLACED ON THE SECTION PERTAINING TO RULES OF EVIDENCE, CONSIDERED THE LEAST ACCEPTABLE ASPECT OF THE STATUTE.
Abstract
THE 1974 STATUTE DEFINES SEXUAL BATTERY AS ORAL, ANAL, OR VAGINAL PENETRATION BY, OR UNION WITH, THE SEXUAL ORGAN OF ANOTHER OR THE ANAL OR VAGINAL PENETRATION OF ANOTHER BY ANY OBJECT, EXCLUDING ACTS DONE FOR BONA FIDE MEDICAL PURPOSES. THE REFORMED LAW IS, THEREFORE, SEX NEUTRAL AND IS NO LONGER LIMITED TO PENILE PENETRATION OF THE VAGINA. SEVERAL DEGREES OF OFFENSE ARE DELINEATED, DEPENDING ON THE AGE OF THE VICTIM AND THE AMOUNT OF FORCE USED. THE SEVERITY OF THE SENTENCE CORRESPONDS TO THE VARIATIONS IN THESE TWO FACTORS. THE LAW HAS RETAINED THE REQUIREMENT THAT THE VICTIM ATTEMPT TO RESIST THE BATTERY UNLESS PHYSICALLY UNABLE TO COMMUNICATE UNWILLINGNESS TO PARTICIPATE IN THE ACT; THIS RESISTANCE REQUIREMENT, HOWEVER, SHOULD BE ABROGATED SINCE RESISTANCE COULD PROVE HARMFUL TO THE VICTIM. THE LAW ALSO SPECIFIES THAT IGNORANCE OR BELIEF ABOUT THE VICTIM'S AGE IS NO DEFENSE IN STATUTORY RAPE; THE STATUTE SHOULD BE AMENDED SO THAT A REASONABLE MISTAKE CONCERNING AGE MAY BE ALLOWED AS AN AFFIRMATIVE DEFENSE. FLORIDA CASE LAW HAS CONSISTENTLY HELD THAT CORROBORATION IS NOT NECESSARY FOR A RAPE CONVICTION. HOWEVER, THE VICTIM'S TESTIMONY MUST BE RIGIDLY SCRUTINIZED IF UNCORROBORATED AND MUST BE CORROBORATED IF HE/SHE HAS BEEN IMPEACHED OR DISCREDITED, OR IF THE TESTIMONY IS NOT CLEAR AND CONVINCING. THE 1974 STATUTE CODIFIES THIS CASE LAW; THE JUDGE IS ALLOWED TO ADVISE THE JURY TO SCRUTINIZE THE VICTIM'S TESTIMONY CAREFULLY, THUS DILUTING THE SIGNIFICANCE OF THE 'NO CORROBORATION' REQUIREMENT AND ALLOWING FOR IMPOSITION OF THE JUDGE'S BIASES UPON THE JURORS. AN INSTRUCTION THAT EVERY WITNESS' TESTIMONY BE WEIGHED CAREFULLY IS SUFFICIENT, WITHOUT PLACING SPECIAL EMPHASIS ON THE VICTIM'S TESTIMONY. THE LAW IS SILENT WITH RESPECT TO THE PERMISSIBILITY OF EVIDENCE CONCERNING THE VICTIM'S PAST SEXUAL HISTORY, FORCING COURTS TO RESORT TO CASE LAW AND JUDICIAL CUSTOM WHICH PERMITS SUCH EVIDENCE. THE SEXUAL HISTORY OF A VICTIM IS CONSIDERED ADMISSIBLE BECAUSE OF ITS PROBATIVE VALUE IN JUDGING WHETHER HE/SHE CONSENTED TO THE PRESENT ACT, A VIEW HELD IN SPITE OF THE DRAMATIC CHANGE IN SEXUAL BEHAVIOR. THIS ALSO SUBJECTS THE WITNESS TO UNFAIR SURPRISE BECAUSE HE/SHE CANNOT REASONABLY ANTICIPATE ACCUSATIONS AND QUESTIONS CONCERNING SPECIFIC ACTS WITH SPECIFIC PEOPLE. SUCH EVIDENCE GENERALLY SHOULD BE RULED INADMISSIBLE BECAUSE OF ITS LACK OF RELIABILITY. THE VICTIM SHOULD BE AFFORED THE SAME PROTECTIONS ACCORDED VICTIMS OF OTHER VIOLENT CRIMES, WHILE ASSURING THE DEFENDANT A FAIR TRIAL. IF THESE RECOMMENDATIONS ARE INCORPORATED INTO THE 1974 LAW, THE RESULT SHOULD BE A LESS TRAUMATIC TRIAL EXPERIENCE FOR THE VICTIM AND A GREATER WILLINGNESS TO REPORT CRIMES. (KJM)