HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 341 Sexual Offenses Definitions
SPONSOR(S): Judiciary Committee, Criminal Justice & Public Safety Subcommittee, Slosberg-King
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 692
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 18 Y, 0 N, As CS Frost Hall
2) Justice Appropriations Subcommittee 14 Y, 0 N Smith Keith
3) Judiciary Committee 15 Y, 0 N, As CS Frost Kramer
SUMMARY ANALYSIS
Currently, the terms “vagina” and “vaginal” are not defined under Florida law, but are used to describe
prohibited sexual conduct in various sections of law. Without a definition to specify what the Legislature intends
to be included in the meaning of the terms, determining a meaning is left to the courts. Currently, the Florida
District Courts of Appeals (DCA) have conflicting opinions on the definition of the term “vagina.” Specifically,
the Second and Fourth DCAs have held that the term “vagina” has a specific anatomical meaning, and that it
includes only the internal canal between the vulva and the uterus, while the Fifth DCA has held the term
“vagina” includes the entire vulva area not just the internal passageway. As such, the lack of a statutory
definition for the term may lead to disparate outcomes for the same conduct, based on the circuit in which the
offense occurs.
The terms “vagina” and “vaginal” are currently used in the following sections of law without being specifically
defined:
Section 39.01, F.S., which uses the term in its definition of “sexual abuse of a child” for purposes of finding
a child to be dependent;
Section 365.161, F.S., which prohibits certain obscene telephone communications;
Section 491.0112, F.S., relating to sexual misconduct by a psychotherapist;
Section 775.0847, F.S., relating to the possession or promotion of certain images of child pornography;
Section 794.011, F.S., relating to sexual battery;
Section 794.05, F.S., relating to unlawful sexual activity with certain minors;
Section 796.07, F.S., relating to the prohibition of prostitution;
Section 800.04, F.S., relating to lewd or lascivious offenses upon or in the presence of a person under 16;
Section 825.1025, F.S., relating to lewd or lascivious offenses upon or in the presence of an elderly or
disabled person;
Section 827.071, F.S., relating to sexual performance by a child;
Section 847.001, F.S., which provides definitions relating to obscenity;
Section 872.06, F.S., relating to abuse of a dead human body;
Section 944.35, F.S., relating to malicious battery and sexual misconduct by a correctional facility
employee; and
Section 951.27, F.S., relating to blood testing of inmates charged with a sexual offense.
CS/CS/HB 341 amends each of the above-listed statutes relating to prohibited sexual conduct to replace the
terms “vagina” or “vaginal” with the terms “female genital” or “female genitals,” and to provide that “female
genitals” include the: labia minora; labia majora; clitoris; vulva; hymen; and vagina.
The Criminal Justice Impact Conference met on February 7, 2022, and determined the bill would have a
positive indeterminate impact on the prison population by replacing the terms “vagina” and “vaginal” with the
newly defined term “female genitals,” which may capture more conduct than under current law.
The bill provides an effective date of October 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Under Florida law, the terms “vagina” and “vaginal” are used within the descriptions and definitions of
numerous prohibited sexual activities, however, the term is not statutorily defined. Currently, several of
Florida’s District Courts of Appeal (DCA) have released conflicting opinions on the meaning of the term
“vagina.” The Second and Fourth DCAs have held that the term “vagina” has a specific anatomical
meaning, and that it includes only the internal canal between the vulva and the uterus,1 while the Fifth
DCA has held that the term “vagina” includes the entire vulva area and not just the internal
passageway.2
Sexual Battery
Section 794.011, F.S., criminalizes sexual battery offenses. 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.3 The offense level for sexual battery differs based on the offender’s age, the
victim’s age, and the presence of other specified circumstances, as follows:
Subsection Offender’s Victim’s Age Special Circumstances Present Felony
Age Level
(2)(a) ≥ 18 yrs. < 12 yrs. Injures the victim’s sexual organs Capital
(2)(b) < 18 yrs. < 12 yrs. Injures the victim’s sexual organs Life
(3) No age ≥ 12 yrs. Uses or threatens to use a deadly weapon or Life
requirement uses actual physical force likely to cause serious
personal injury
(4)(a) ≥ 18 yrs. ≥ 12 yrs., but Any circumstance listed in s. 794.011(4)(e), F.S. First
< 18 yrs.
(4)(b) ≥ 18 yrs. ≥ 18 yrs. Any circumstance listed in s. 794.011(4)(e), F.S. First
(4)(c) < 18 yrs. ≥ 12 yrs. Any circumstance listed in s. 794.011(4)(e), F.S. First
(4)(d) No age ≥ 12 yrs. Any circumstance listed in s. 794.011(4)(e), F.S., First
requirement and offender was previously convicted of an
enumerated sexually motivated offense against a
minor
(5)(a) ≥ 18 yrs. ≥ 12 yrs., but No physical force or violence likely to cause First
< 18 yrs. serious personal injury
(5)(b) ≥ 18 yrs. ≥ 18 yrs. No physical force or violence likely to cause Second
serious personal injury
(5)(c) < 18 yrs. ≥ 12 yrs. No physical force or violence likely to cause Second
serious personal injury
(5)(d) No age ≥ 12 yrs. No physical force or violence likely to cause First
requirement serious personal injury but offender was
previously convicted of an enumerated sexually
motivated offense against a minor
Section 794.011(4)(e), F.S., lists specified aggravating factors, including:
1 See Richards v. State, 738 So.2d 415, 419 (Fla. 2d DCA 1999) (holding that the vagina should be defined as “the canal between the
vulva and the uterus.”); Firekey v. State, 557 So.2d 582 (Fla. 4th DCA 1989) (holding that penetration of the labia does not constitute
sexual battery).
2 See Palumb o v. State, 52 So.3d 834 (Fla. 5th DCA 2011).
3 S. 794.011(1)(h), F.S.
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The victim is physically helpless to resist;
The offender coerces the victim to submit by threatening the use of force or violence likely to
cause serious personal injury to the victim, and the victim reasonably believes that the offender
has the present ability to execute the threat;
The offender coerces the victim to submit by threatening to retaliate against the victim, or any
other person, and the victim reasonably believes that the offender has the ability to execute the
threat in the future;
The offender, without the prior knowledge or consent of the victim, administers or has
knowledge of someone else administering to the victim any narcotic, anesthetic, or other
intoxicating substance that mentally or physically incapacitates the victim;
The victim is mentally defective, and the offender has reason to believe this or has actual
knowledge of the fact;
The victim is physically incapacitated;
The offender is a law enforcement officer, correctional officer, or correctional probation
officer,4 or is an elected official exempt from such certification, 5 or any other person in a position
of control or authority in a probation, community control, controlled release, detention, custodial,
or similar setting, and such officer, official, or person is acting in such a manner as to lead the
victim to reasonably believe that the offender is in a position of control or authority as an agent
or employee of the government.
Obscenity, Sexual Performance by a Child, and Child Pornography
The following definitions apply to offenses related to obscenity, sexual performance by a child, and
child pornography:
“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; however, “sexual
battery” does not include an act done for a bona fide medical purpose. 6
“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other.7
“Sexual conduct” means actual or simulated8 sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or if
such person is female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is
being or will be committed. A mother’s breastfeeding of her baby does not under any
circumstances constitute “sexual conduct.” 9
Because the definition of the term “sexual conduct” includes the terms “sexual battery” and “sexual
bestiality” within chapters 847, 827, and 775, F.S., and the terms “sexual battery” and “sexual bestiality”
include the terms “vagina” and “vaginal,” the prohibited conduct related to obscenity, sexual
performance by a child, and child pornography may also be subject to the same uncertainty regarding
the meaning of the terms “vagina” and “vaginal.”
4 As defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9), F.S., and who is certified under s. 943.1395, F.S.
5 Under s. 943.253, F.S.
6 Ss. 775.0847(1)(d), 827.071(1)(f), and 847.001(14), F.S.
7 Ss. 775.0847(1)(e), 827.071(1)(g), and 847.001(15), F.S.
8 For purposes of chapters 847 and 827, F.S., the term “simulated” means the explicit depiction of conduct described in subsection (16)
which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
9 Ss. 775.0847(1)(f), 827.071(1)(h), and 847.001(16), F.S.
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Obscenity
Chapter 847, F.S., governs offenses relating to obscenity, and includes in part, laws relating to: the
prohibition of certain acts in connection with obscene or lewd materials; the regulation of materials
harmful to minors and the sale or distribution of materials harmful to minors; and computer
pornography, prohibited computer usage, and traveling to meet minors.
Under ch. 847, F.S., the term “obscene,” means the status of material which:
The average person, applying contemporary community standards, would find, taken as a
whole, appeals to the prurient interests;
Depicts or describes, in a patently offensive way, sexual conduct; and
Taken as a whole, lacks serious literary, artistic, political, or scientific value. 10
Sexual Performance by a Child
Section 827.071(4), F.S., makes it a second degree felony11 for a person to possess with the intent to
promote12 any photograph, motion picture, exhibition, show, representation, or other presentation
which, in whole or in part, includes any sexual conduct by a child.13 Possession of three or more copies
of such photographs, etc., is prima facie evidence of a person’s intent to promote. 14
Section 827.071(5), F.S., makes it a third degree felony15 for any person to knowingly possess, control,
or intentionally view16 a photograph, motion picture, or other image that, in whole or in part, he or she
knows includes any sexual conduct by a child.17
Child Pornography
Section 775.0847, F.S., reclassifies violations relating to: sexual performance by a child; 18 computer
pornography, prohibited computer usage, and traveling to meet a minor; 19 transmission of pornography
by electronic device or equipment;20 and transmission of material harmful to minors to a minor by
electronic device or equipment21 to the next highest degree felony offense if:
The offender possesses 10 or more images of any form of child pornography22 regardless of
content; and
The content of at least one image contains one or more of the following:
o A child who is younger than the age of 5.
o Sadomasochistic abuse23 involving a child.
o Sexual battery involving a child.
o Sexual bestiality involving a child.
o Any movie involving a child, regardless of length and whether the movie contains
sound.24
10 A mother’s breastfeeding of her baby is not under any circumstance “obscene.” S. 847.001(10), F.S.
11 A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Ss. 775.082 and 775.083, F.S.
12 “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distr ibute,
circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same. S. 827.071(1)(d), F.S.
13
“Simulated” means the explicit depiction of sexual conduct which creates the appearance of such conduct and which exhibits an y
uncovered portion of the breasts, genitals, or buttocks. S. 827.017(1)(j), F.S.
14 S. 827.071(4), F.S.
15 A third degree felony is punishable by up to five years in prison and a $5,000 fine. Ss. 775.082 and 775.083, F.S.
16 Section 827.071(1)(b), F.S., defines “intentionally view” as to deliberately, purposefully, and voluntarily view. Proof of in tentional
viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction,
representation, or other presentation was viewed over any period of time.
17 The statute also specifies that the possession, control, or intentional viewing of e ach such photograph, or other image, is a separate
offense. If such photograph or other image includes sexual conduct by more than one child, then each child in each photograph or
image that is knowingly possessed, controlled, or intentionally was viewed i s a separate offense.
18 S. 827.071, F.S.
19 S. 847.0135, F.S.
20 S. 847.0137, F.S.
21 S. 847.0138, F.S.
22 Section 775.0847(1)(b), F.S., defines “child pornography” to mean any image depicting a minor engaged in sexual conduct.
23 Section 775.0847(1)(c), F.S., defines “sadomasochistic abuse” to mean flagellation or torture by or upon a person or the condition of
being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction b rought about as
a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
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Unlawful Sexual Activity with Certain Minors
Section 794.05, F.S., criminalizes sexual activity between a person who is 24 or older and a victim who
is 16 or 17 years old, regardless of whether the 16 or 17 year old victim cons