Florida law prohibits employees of mental health facilities from engaging in “sexual misconduct” with any patient who is in the custody of the Department of Children and Families or who resides in a receiving or treatment facility.
The law was enacted to protect vulnerable people who are suffering either from a mental illness or substance use disorder and who are housed in one of these facilities from being sexually exploited by someone who works at the facility.
This blog post will explain how this special law applies to employees of these mental health institutions and what you can do if you are charged with criminal sexual misconduct involving a mental health patient.
Who Is Covered by This Sexual Misconduct Law?
The criminal statute (F.S. 394.4593) penalizing any sexual activity between an employee and a patient in public and private mental health facilities recognizes the fact that these patients are not certain to exercise sound judgment because of their compromised condition.
The law applies to anyone who is a paid staff member, volunteer, or intern of the department. It also applies to any person under contract with the Department of Children and Families and to any person providing care or support to a client on behalf of the department or its service providers.
The institutions covered by the statute include both state-owned and private entities providing services to the department as well as federal facilities operated by the Department of Veterans Affairs.
Although residents and patients receiving care or treatment in any one of these facilities may be an adult otherwise competent to engage in consensual sexual activity, their presence in the facility or their status as a patient or client “in the custody of the Department of Children and Families” makes it a criminal offense for any facility employee or contractor to have any sexual interaction with them.
To be guilty of the crime, an offender must know or have reason to know that the person with whom they engaged in sexual activity is a patient or is receiving services from the facility.
Only if someone is married to a patient are they exempt from prosecution under this statute.
What Activity Is Prohibited?
Criminal sexual misconduct with a patient or client of a mental health treatment facility includes any sexual activity, not just sexual battery or rape.
As stated earlier, the patient’s consent is irrelevant and is not a defense. That means even if the patient was the aggressor or pursuer of the sexual activity, the worker can be criminally prosecuted.
The statute defines the prohibited activity as follows:
- fondling the genital area, groin, inner thighs, buttocks, or breasts of a person,
- 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 (sexual battery,
- intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator,
- intentionally masturbating in the presence of another person.
- intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person.
- intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.
What Are the Penalties for Sexual Misconduct with a Patient?
Any employee, volunteer, or contractor convicted of criminal sexual misconduct with a patient or client at a mental health facility faces a second-degree felony punishment, including up to 15 years in state prison and a $10,000 fine.
Criminal Failure to Report Sexual Misconduct
Anyone who either witnesses or has reason to suspect that prohibited sexual activity occurred between a facility worker and a patient is legally required to report the incident immediately to the Department of Children and Families abuse hotline and a law enforcement agency.
*Failure to report an incident in which an employee and a patient engaged in sexual activity is a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine.
The person obligated to report the illegal sexual activity is also required to write a full description of the incident including the nature of the activity, and the time and place it occurred. The report must be delivered to the program supervisor who will provide it to investigators.
What Are Your Rights If You Are Accused of Sexual Misconduct?
Accusations of sexual misconduct are extremely damaging to the reputation of the accused, even if they are exonerated in the end. Anyone facing sexual misconduct allegations should know what rights they have and realize that the best way to protect themselves is to contact an experienced criminal defense lawyer immediately.
What should you do if you learn you are suspected of sexual misconduct with a patient?
- Contact a criminal defense lawyer before speaking to anyone about the allegation.
- Do not file a written incident report describing your side of the case.
- If threatened with adverse employment actions unless you provide a statement, do not agree until you discuss the matter with your qualified sexual misconduct defense lawyer.
- Notice the times and dates of significant events.
- List the names and contact details of potential witnesses.
- Identify the source of any objective data, surveillance cameras, key-card door locks, nursing logs, etc.,
- Do not discuss the allegations or your response to them with anyone except your criminal defense lawyer.
- Do not discuss the matter with any union representative unless your lawyer approves.
Read More > What Constitutes Sexual Battery in Florida?
Defending Sexual Misconduct Cases
At Stechschulte Nell, Attorneys at Law, our legal practice is devoted to protecting the rights of people accused of crimes because we know that many allegations are unfounded, exaggerated, or involve mitigating facts that provide valuable context.
We believe in the vigorous defense of all criminal allegations, and we have devoted our professional careers to fighting for the rights of criminal defendants. Trust that we are on your side and contact 813-280-1244 for a case review today.
