In the case of Cooper v. Florida, the Defendant was convicted of lewd and lascivious battery and molestation. At trial, the court did not allow the Defendant’s attorney to question the accuser regarding her denial of any previous sexual experiences to the police. The defense attorney failed to properly preserve an objection and the appeals courts affirmed the conviction. This illustrates two very important points:

  1. Your criminal trial attorney MUST be knowledgeable of all statutes and rules of evidence that affect the outcome of the case. That attorney must also know when and how to properly preserve an objection so that the case can proceed to an appeal; and
  2. There was an exception to the rape shield statute that both sides, including the trial judge, missed and applied incorrectly. This should NEVER be allowed to happen and it was a serious miscarriage of justice.

Florida, like many other states, has a rule that prohibits certain questioning of victims in sexual battery cases. Florida Statute 794.022 prohibits specific instances of prior consensual sexual activity between the victim and any person other than the offender from being admitted into evidence. There are very important exceptions to this rule such as the source of semen, pregnancy, etc. Therefore, it is imperative that you retain an experienced criminal trial attorney to represent your interests.

The statute also states that the testimony of the victim does NOT need to be corroborated in certain prosecutions. This is very timely as we have allegations across the world of sexual harassment and sexual battery against powerful men. If there is a question of consent, the victim’s mental state may be allowed to come into evidence.

The bottom line for anyone facing accusations of sexual assault is that you need to carefully consider the experience of your attorney. Attorney Adam Pollack is a Board Certified Criminal Trial lawyer and has successfully defended many people accused of committing sexual assault.  Call him today for a FREE consultation at (407) 834-5297

FLORIDA RAPE SHIELD STATUTE

794.022 Rules of evidence.

(1) The testimony of the victim need not be corroborated in a prosecution under s. 787.06, s.794.011, or s. 800.04.

(2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s.794.011, or s. 800.04. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

(3) Notwithstanding any other provision of law, reputation evidence relating to a victim’s prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011, or s. 800.04.

(4) When consent of the victim is a defense to prosecution under s. 787.06, s. 794.011, or s.800.04, evidence of the victim’s mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly.

(5) An offender’s use of a prophylactic device, or a victim’s request that an offender use a prophylactic device, is not, by itself, relevant to either the issue of whether or not the offense was committed or the issue of whether or not the victim consented.