Groping someone could result in stronger criminal charge under proposed Florida law

Last year, a massage therapist named Ismael Gonzalez was arrested after a client at a West Miami-Dade spa told police he “rubbed her vaginal area” against her will.

Under Florida law, prosecutors determined, the most severe crime Gonzalez could be charged with was a misdemeanor battery. He is still awaiting trial.

Florida lawmakers are now grappling over whether that’s enough.

The Florida Senate has approved proposed legislation to create the new crime of “indecent battery,” intended to target those who grope people, 16 years and older, in a sexual manner. The bill would recognize unwanted sexual touches as a separate offense, rather than a simple battery.

First-time offenders would face a first-degree misdemeanor, punishable by up to a year in prison. If they are convicted a second time for the same crime, they would face a third-degree felony. A person convicted of indecent battery would not be required to register as a sex offender under the bill.

The House is moving a similar bill with the same penalties. But some lawmakers, including bill sponsor state Rep. Linda Chaney, are leaning toward making the crime a felony from the start — meaning a convicted offender would face up to five years in prison. Senate members won’t budge on increasing the penalties.

“The reason that the bill is in its current position being a misdemeanor is there was some concern that in a bar a woman walks by and somebody slaps her on the butt, that could be a higher offense. That’s why it has landed where it is,” Chaney, R-St. Pete Beach, said Tuesday during the House Justice Appropriations Subcommittee.

Democratic state Rep. Michael Gottlieb, a criminal defense attorney from Davie, has urged his colleagues to back tougher penalties as the bill advances in the House.

“There are many survivors of these kinds of attacks. Most recently, in Miami-Dade County there’s been massage therapists that are touching women during massages, touching their genitals and they are being prosecuted for a misdemeanor,” Gottlieb said. “Really, what this bill does is just create another misdemeanor vehicle for a prosecutor to handle this crime.”

But Sen. Keith Perry, the chair of the Senate criminal and civil justice appropriations subcommittee, is steadfast on keeping the penalties as they are. He said they will create a “baseline” for the new crime.

“I am certainly willing to revisit the penalties in upcoming years, as this bill will provide data that will enable us to better address the issue,” Perry said.

Harsher charge proposed for touching 16- and 17-year-olds

Another difference between the House and Senate is that the House bill would create another crime targeting people 24 and older who intentionally touch a 16- or 17-year-old in a “lewd or lascivious manner.” That offense would be a third-degree felony and would require a person convicted for that crime to register as a sex offender.

Under current law, a person older than 24 commits a second-degree felony by engaging in sexual activity with a 16- or 17-year-old, regardless of consent. But according to the staff analysis of the House bill, a person who intentionally touches the clothed or unclothed breasts or genitals of a person 16 years and older may only be charged with a misdemeanor.

“So what we’re trying to prevent is inappropriate behavior on a 17-year-old if you’re 24 or over. That is much more inappropriate,” Chaney said.

It is unclear how many people who have been arrested under statutes that deal with “lewd and lascivious behavior” or “unnatural and lascivious acts” would fall under the new indecent battery statute that legislators are trying to create. In the last three fiscal years combined, 238 people have been arrested for second-degree misdemeanors under the current statutes, according to Florida Department of Law Enforcement data.

The case of the Univision producer

A new indecent battery charge could also be used in cases like Enrique Albis, the former Univision entertainment producer who is charged with sexually attacking three women who thought they were auditioning for a popular show. He’s suspected of groping over a dozen women over the years, and in some of those cases, he could only be charged with misdemeanor battery.

Under the proposed measures, a person would face an indecent battery charge if they intentionally touch a person’s breasts, genitals, or buttocks — including over their clothing — without their consent. The same would apply if the perpetrator forces a person to touch them.

Making the crime a felony would also increase the statute of limitations — prosecutors would have three years to charge a crime, instead of two for a first-degree misdemeanor.

Gottlieb argues an indecent battery charge should be a felony from the start because otherwise it would mean more resources spent by law enforcement and prosecuting agencies to go after those who are sexually attacked.

“A prolific offender gets two bites at the apple before that individual is a felon,” he said.

Procedurally, the measure is moving faster in the Senate. It was approved with overwhelming bipartisan support last week, with only Sen. Jeff Brandes, R-St. Petersburg, voting in opposition.

Brandes, who has built a reputation in the Senate as an advocate for criminal justice reforms, did not explain his reasoning for opposing the bill on the Senate floor. But based on his line of questioning, he raised an issue with juveniles getting caught up in the crime

“Does this apply to 15-year-olds, 14-year-olds or 13-year-olds who touch another 15-, 14- or 13-year-old? Could they be charged under this crime?” Brandes asked. “Just to be clear, juveniles can be charged with intentionally touching another juvenile for a crime, correct?”

“Yes, and they could be charged now,” Perry responded. “This simply turns it from a simple battery to defining that in terms of what it is.”

This story was originally published February 16, 2022 at 3:04 PM.