Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors At Law
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Capital Sexual Battery and the Statute of Limitations

If Woody Allen lived in Florida, could he be prosecuted for an alleged sexual offense which occurred over 21 years ago? If his actions constitute capital sexual battery, the answer is yes. Under the express language of ยง775.15(1), Fla. Stat. (2013), a prosecution for capital felony or life felony "...may be commenced at any time." What is capital sexual battery? Since the alleged victim in the Allen matter was below the age of 12 at the time she claims she was assaulted, she is a qualifying victim for purposes of Florida law. The question then becomes whether the acts alleged to have occurred would be considered sexual battery in this state. Section 794.011(1) (h), Florida Statutes (2013) 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 other object." Actual sexual intercourse is not required under this statute. 

Vaginal or oral penetration of the victim by any object is a qualifying offense, as is oral penetration of the victim by the accused's sexual organ. In order for a prosecution to proceed in the Allen matter, these elements of the offense would have to be present. In addition to the statutory requirements set forth in the statute, the State must also decide whether it can prove beyond a reasonable doubt that the acts alleged occurred. The passage of time obviously works to the prosecution's disadvantage. This disadvantage is often overcome by what are commonly referred to as "controlled calls." Once a victim has come forward, it is not at all uncommon for the alleged victim, acting under the direction of law enforcement, to call the accused in an attempt to engage that person in incriminatory conversations about the past. In Florida, the victim acting alone cannot record such conversations. However, such calls can be recorded by law enforcement personnel without the consent of the party being recorded. Even innocuous questions like "Are you sorry about what you did to me?" or "Do you think about what you did?" if answered incorrectly, can have a significant impact upon a jury's deliberations. If a voice from the past reaches out in an accusatory manner, it is imperative to terminate the conversation immediately in a non-incriminatory manner and seek the advice of an attorney experienced in handling such matters. Do not allow a person from the past to use your own words against you. Trying to explain or justify your conduct, especially where the conduct occurred many years ago, may result in you supplying the prosecution with its most damaging evidence against you. The only person you should be discussing such matters with is your attorney. Otherwise, you may very well become the prosecutor's best evidence. Since there is no time limit on prosecution in these cases, any discussion about what did or did not happen many years ago can serve only one purpose - to provide the prosecution with evidence to bolster its case. Just as Mr. Allen has allowed his attorneys to speak on his behalf, allow an experienced attorney to strategize your best defense. 

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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