We have all heard stories of young men, and occasionally women, being prosecuted for sexual relationships that are consensual and occur among their peers in high school. It usually happens when the parents of the younger person insist on prosecution. For example, a senior in high school, who happens to have turned 18, has a sexual relationship with a freshman who happens to be 14. This is a felony in Florida and would require the 18 year old to register as a sex offender if he or she were convicted.
Interestingly, the way the sex offender and sexual predator laws are written in Florida, a child 14 and younger is not required to register as a sex offender or sexual predator if they are “convicted” of a sex related offense. Anyone over 14 is, unless, of course, the Court “withholds adjudication” which means there is no “formal” finding of guilt and therefore no conviction. (I am regularly asked whether or not these “withholds” show on a background check, and the answer is: it depends on what kind of background check and who is doing it. Because the circumstances of all cases are different, as are the reasons behind background checks, call me if you have a question.)
The Tampa Bay Times reported today a case of an 18 year old high school senior who was having a sexual relationship with another 15 year old freshman. They are both girls. Because the older girl is 18, she is being charged as an adult with lewd and lascivious molestation of the younger 15 year old. Why? Because 15 years old’s, according to the law, can’t consent. AND, because the 15 year old’s parents had a fit when they learned of the relationship and persuaded the police and State Attorney’s Office to prosecute. The State is now offering the older girl a plea deal of 2 years of house arrest and one year of probation. But she’d have to register as a sex offender which would clearly affect her housing choices for the rest of her life. (I personally think she has a great trial case, but I’m hoping her Brian Gabriel, a West Palm Beach sex crimes lawyer does too.)
When legal pundits and CNN talk about issues like this, they are forever crying about the “legislative intent” behind a law. If one were to discuss the “legislative intent” behind the law requiring convicts to register as sex offenders, I’m not sure the legislature could have contemplated a case such as this. According to the newspaper and her parents Facebook page, their 18 year old daughter Kaitlyn was a model student and athlete, headed to college to be a nurse. According to the same source, the girlfriend admits the relationship was entirely consensual and she was never pressured into the sexual relationship. The Kaitlyn’s parents have started a petition, with 14,000 signatures already, in an attempt to pressure the State into dropping the charges against Kaitlyn. By all accounts, her case seems unfair. But that’s what happens when a law in enacted that provides for no judicial or prosecutorial discretion.