JOSEPH A. VICTOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Victor was charged under Florida Statutes § 794.05(1) with engaging in carnal intercourse with an unmarried person under 18 years of age based on fellatio he performed on the victim. The court affirmed the trial court's denial of his motion to dismiss, holding that 'carnal intercourse' does not require penetration of the victim and includes oral sex acts.
The court held that 'carnal intercourse' does not require penetration of the victim and does not require sexual intercourse. The statute is violated equally regardless of which party acts upon the other, and oral sex acts fall within the definition of carnal intercourse when imposed upon a minor by an adult.
[1] The term "carnal intercourse" does not require penetration of the victim.
[2] The statute prohibiting unlawful carnal intercourse with a minor is gender neutral.
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Join FLexlaw to unlock all legal intelligence“In our judgment the terminology, 'carnal intercourse' requires neither sexual intercourse nor penetration of the victim.”
The court's holding that carnal intercourse does not require penetration of the victim
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Join FLexlaw to unlock all legal intelligenceVictor was charged with carnal intercourse with an unmarried person under eighteen years of age. The only act charged involved fellatio performed upon…
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STONE, Judge.
The defendant is charged with engaging in “carnal intercourse” with an unmarried person under eighteen years of age. The facts are not disputed. The only act charged involved fellatio performed upon the victim by the defendant. The trial court denied appellant’s' motion to dismiss. We affirm.
Florida Statutes Section 794.05(1) provides:
Any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. (emphasis added)
This offense was previously known as “statutory rape.” Griffin v. State, 322 So. 2d 587 (Fla. 4th DCA 1975). By its wording, the statute is gender neutral.
The appellant asserts that there must be a “penetration” of the victim and that here the only “penetration” was of the defendant. We recognize that several cases discuss “penetration” as an element of a carnal intercourse statute. E.g., State v. Bowden, 154 Fla. 511, 18 So. 2d 478 (1944); Simmons v. State, 151 Fla. 778, 10 So. 2d 436 (1942). However, the reasoning in those cases is generally equally applicable to the then existing law on rape. See State v. Bowden, supra. But cases involving acts of fellatio and cunnilingus now may be filed as sexual batteries under our statute. Florida Statute Section 794.-011(l)(h) defines “sexual battery”:
The term “sexual battery” means 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; ...
A sexual battery under chapter 794 does not require penetration of a victim. Contact between the defendant’s mouth and the victim’s sexual organ is sufficient. Banks v. State, 342 So. 2d 469 (Fla.1976); Stone v. State, 547 So. 2d 657 (Fla. 2d DCA 1989); Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986); Dorch v. State, 458 So. 2d 357 (Fla. 1st DCA 1984).
We recognize that the appellant is not charged with a sexual battery. Nevertheless, whether a sex act offends the provisions of chapter 794 is not determined from the perspective of either the victim or the accused. Rather, the purpose of that chapter is to prevent one person imposing a sex act involving a sexual organ, whether oral, anal or vaginal, by force, threat, or position of authority or maturity, upon another. We have found no acceptable definition of “carnal intercourse.” However, it has been determined that the term “carnal knowledge” is broader than the act of sexual intercourse and does not require “penetration” of the victim.
The word “carnal” is derived from the Latin word meaning flesh. The Webster’s Collegiate Dictionary defines it variously as fleshly; sensual; related to the body as the manifestation of man’s lower nature; implies connection with the flesh; implies habitual indulgence in sensations and desires having a physical origin. The word pertains to the body, its passions and its appetites. Carnal pertains to the body and includes carnal knowledge of the body of another person by either natural or unnatural copulation. (cites omitted) Carnal knowledge includes more than sexual intercourse. It extends to the gratification of animal appetites or lusts upon the body of another. Brinson v. State, 278 So. 2d 317 (Fla. 1st DCA 1973). See also Washington v. State, 302 So. 2d 401 (Fla.1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1582, 43 L.Ed.2d 786 (1975).
In our judgment the terminology, “carnal intercourse” requires neither sexual intercourse nor penetration of the victim. The statute, protecting minors from sex acts imposed by adults in the manner described is equally violated, regardless of which party is acting upon the other. Therefore, the judgment is affirmed.
LETTS and WALDEN, JJ., concur.
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B.B. v. State, 659 So. 2d 256 (Fla. 1995)…e, 119 Fla. 839, 842, 161 So. 729, 730 (1935). It was on this basis that the Court explained why the statute protected only unmarried minors who were chaste. [*260] We agree with the opinion of the Fourth District Court of Appeal in Victor v. State, 566 So. 2d 354 (Fla. 4th DCA 1990), that the purpose of section 794.05(1), Florida Statutes, is “to protect minors from sex acts imposed by adults.” Victor, 566 at 356. Here, though, section 794.05 is not being applied in furtherance of the purpose delineated by t…
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J.A.S. v. State, 705 So. 2d 1381 (Fla. 1998)…lt, competing policy choices, in a situation involving minors as defendants and victims. In B.B., we concluded that the purpose of section 794.05(1) was “to protect minors from sex acts imposed by adults.” 659 So. 2d at 260 (quoting Victor v. State, 566 So. 2d 354, 356 (Fla. 4th DCA 1990)), and, accordingly, we found the statute unconstitutional as applied in singling out one of two consenting sixteen-year-olds because it was “not being utilized as a shield to protect a minor.” Id. We find B.B. clearly distin…1 / 2
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Jovan Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006)…, 257, 260 (Fla.1995) (declaring an earlier version * of section 794.05(1) unconstitutional under Article I, Section 23 of the Florida Constitution, as applied to a sixteen-year-old whose “victim was also sixteen years of age”). See Victor v. State, 566 So. 2d 354, 356 (Fla. 4th DCA 1990) (describing the purpose of section 794.05(1), Florida Statutes, as “protecting minors from sex acts imposed by adults”). Unemancipated minors are under a statutory disability that precludes consent to sexual activity with a…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 151 Fla. 778 (Fla. 1942)
- State v. Rubin Bowden, 154 Fla. 511 (Fla. 1944)
- Howard Banks v. State, 342 So. 2d 469 (Fla. 1976)
- Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986)
- Stone v. State, 547 So. 2d 657 (Fla. 2d DCA 1989)
- White v. Mich. State Univ. (W.D. Pa. 1975)
- Washington v. State, 302 So. 2d 401 (Fla. 1974)
- Norvel Lee Dorch v. State, 458 So. 2d 357 (Fla. 1st DCA 1984)
- Brinson v. State, 278 So. 2d 317 (Fla. 1st DCA 1973)
- Griffin v. State, 322 So. 2d 587 (Fla. 4th DCA 1975)