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Understanding Florida’s Prosecution of Teenagers Engaged in Consensual Sexual Behavior
In recent weeks there has been an internet explosion of articles about Florida’s prosecution of a teenager engaged in sexual activity with another teenager. Much of the focus of the recent articles has been the fact that the sexual activity was between two teenagers of the same sex. Some of the articles seem to imply that the prosecution has occurred only because the teenagers are of the same sex. See for example: Huffington Post report: Florida Teen, Faces Felony Charges Over Same-Sex Relationship
As a criminal defense attorney who has practiced law in Gainesville, Florida, for more than 25 years, I’ve represented dozens of teenagers charged with sex offenses for engaging in sexual activity with another teen. This most recent case has apparently gained internet traction in the public view only because it involves teenagers of the same sex. Florida prosecutors have for decades been charging mostly heterosexual teenage males with the sex offense “lewd and lascivious assault or battery” upon their teenage girlfriends. The bottom line is this, in Florida it is a sex offense to engage in sexual activity with a person fifteen years old or younger, even if the sexual contact is consensual. See Florida Statute 800.04. In Florida, minors who are fifteen years old or younger can’t legally consent to engaging in sexual contact.
Of course, this current prosecution is outrageous, but it is founded upon a Florida statute that clearly prohibits sexual activity with anyone fifteen years old or younger. This means, under Florida law, that it is a sex offense - “lewd and lascivious molestation” - punishable by up to fifteen years in prison, for a sixteen year old to engage in sexual activity with a fifteen year old. Technically speaking, under the terms of the statute, if two fifteen year olds engage in sexual activity together, they are both committing sex offenses upon each other under Florida law.
Don’t get me wrong, I oppose the prosecution of the Florida teenager referenced in the following articles:
Florida lesbian, 18, faces 15 years in prison for having sex with 14-year-old high school basketball teammate, Bradenton Herald, May 20, 2013
Kaitlyn Hunt's Charges Will Not Be Dropped, Florida State Attorney Says, Broward Palm Beach New Times, May 21, 2013
The reality is that this type of prosecution involving teenagers engaged in sexual activity is common in Florida - outrageous, but common. The same statute that criminalizes a 60 year old who engages in non-coercive sexual activity with a fifteen year old also criminalizes sexual activity between teenagers if one is less than sixteen years of age. No exception is made in the Florida statutes for teenage sexual activity. Any prosecutor in the state of Florida has the power to prosecute teenage sexual activity in adult court as a “legitimate” sex offense if the minor is fourteen years of age or older. Penalties for convicted teenagers would include a recommended prison sentence, designation as a sex offender (potentially for life) and the life long burden of being a convicted felon. It’s all up to the prosecutor. Welcome to Florida!