Sexual Battery by a Family Member or Custodian, and Incest, in Miami

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Everything you tell us is confidential. Our office answers 24 hours a day.

Familial or Custodial Authority (§ 794.011(8))

These offenses apply to a person "in a position of familial or custodial authority" to someone under 18. The instruction's Comment notes that familial authority is not the same as a family relationship. Consent or willingness of the young person is not a defense, and neither is ignorance of the person's age.

• Soliciting the child to engage in sexual battery. Instruction 11.5: you solicited the person to engage in sexual battery; the person was under 18; and you were in a position of familial or custodial authority. No act has to take place. Third-degree felony (up to 5 years and $5,000).
• Sexual battery on a child 12 to 17. Instruction 11.6: you engaged in an act that constituted sexual battery; the person was 12 or older but under 18; and you held that authority. First-degree felony, punishable by up to life.
• Sexual battery on a child under 12, or injury to the sexual organs in an attempt. Instruction 11.6(a) lists four versions: penetration or union, penetration by an object, or injuring the child's sexual organ in an attempt at either. The State must also prove the authority and that the child was under 12. Capital felony for an adult, and the statute sets the procedure if the State seeks the death penalty; life felony for someone under 18.

Acts done for a bona fide medical purpose are not sexual battery.

Incest (§ 826.04)

Instruction 11.12: the person was your relative as alleged (by lineal blood relationship, or a brother, sister, uncle, aunt, nephew, or niece); you married or had sexual intercourse with that person; and you knew of the relationship at the time. Third-degree felony. Knowledge of the relationship is an element, not an afterthought.

Registration and Mandatory Prison

The sexual battery statute (except the false-accusation subsection) is on Florida's sexual offender registration list. A capital, life, or first-degree conviction under it generally requires designation as a sexual predator, with registration and public notification. For an adult with aggravating factors or priors, the Dangerous Sexual Felony Offender law requires at least 50 years in prison for § 794.011(8) offenses committed on or after October 1, 2014. Incest under § 826.04 is not itself on the registration list, though it is often charged alongside offenses that are.

How We Defend These Cases

• The authority element. Being related does not by itself prove familial authority, and the scope of custodial authority can be contested.
• The accusation itself. Timing, motive, prior statements, and how the child was interviewed.
• Forensic and medical evidence, and what is missing.

What to Do First

1. Do not contact the accuser or the family about the allegation. Calls may be recorded.
2. Do not talk to detectives or DCF without a lawyer.
3. Call us before any interview. See Bond & Nebbia Hearings.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

See our Results page and, for other charges, Sex Crimes Defense.

Frequently Asked Questions

Does "familial or custodial authority" just mean a parent?

Not necessarily. The statute is not limited to parents, and the instruction's Comment says familial authority is not the same as a family relationship.

The young person says it was consensual. Does that matter?

Not legally. The statute says willingness or consent is not a defense under this subsection.

Is incest a registrable offense?

§ 826.04 is not on the registration list in § 943.0435. Other charges in the same case may be.