Florida Senate Bill 1798 Brings Widespread Changes to Sexual Offense Laws
SB 1798 Sexually Related Offense
Senate Bill 1798 (“SB 1798”) is generally titled “Sexually Related Offenses” and was signed by Governor Ron DeSantis on June 27, 2022. The bill , which takes effect on October 1, 2022, modifies and/or creates several Florida Statutes related to sex offenses.
Child Pornography and “Deep Fakes”
SB 1798 addresses some perceived gaps in child pornography laws, specifically related to the advancement of technology and the issue of “deep fakes”. Deep fakes are images that are artificially created which may depict individuals engaging in sexual behavior that they did not actually engage in. According to the Florida Senate, the use of Artificial Intelligence (“AI”) to generate “deep fake” images is an increasing concern as improving technology helps to create increasingly realistic, rapidly created, and inexpensively made images. The type of software necessary to create such images is now free and publicly available.
SB 1798 creates criminal and civil penalties for the dissemination of sexually explicit images of another person that have been digitally or otherwise altered, without that person’s consent. These laws are intended to address the dissemination of such images, created in the likeness of both adults and of minors.
This issue is addressed in modifications to Florida s. 775.0847; s. 827.071; and s. 847.001. The bill also creates a new offense, found in the newly-created Florida Statute s. 836.13 (“Promotion of an altered sexual depiction”, which makes it a third degree felony to willfully and maliciously promote any altered sexual depiction of an identifiable person without their consent).
Nonconsensual Pornography/“Revenge Porn”
SB 1798 also addresses concerns related to “revenge porn”. Prior to the passage of this bill, there was no Florida law which specifically prevented a person from unlawfully procuring sexually explicit images with the intent of selling or disseminating such image. Although this kind of behavior could potentially have been prosecuted under theft laws, it would often have been difficult to prove the monetary value of the items, as required by theft statutes. This type of offense has most recently been addressed by prosecution under Florida s. 784.049, which prohibits sexual cyberharassment (publishing/disseminating sexually explicit images electronically which contains or conveys personal identification information without that person’s consent and contrary to the person’s reasonable expectation that the image would remain private, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person). Cyberharassment is a first degree misdemeanor, which can be enhanced to a felony upon subsequent violations.
Bill 1798 creates a new law, s. 836.14 (“Theft or unauthorized promotion of explicit image”). Under this law, it will now be a third-degree felony to commit theft of a sexually explicit image with the intent to promote the image; or to willfully possess such an image with the intent to promote it, if a person knows or should know that the image was obtained in violation of this offense. This law also provides a more severe penalty (a second degree felony) where a person willfully promotes such an image for pecuniary or other financial gain (ie. using print media, Internet website, or other electronic means). Each of these statutes also create civil liability, increasing minimum monetary damages from $5,000 to $10,000.
Sexual Contact with an Animal
SB 1798 also modifies the existing statute, Florida s. 828.126 (“Sexual activities involving animals”). First, the the definition of prohibited behaviors is substantially changed. Second, the penalty for sexual contact with an animal is increased from a first degree misdemeanor to a third degree felony. The statute also adds a mandatory provision, requiring a sentencing court to issue an order prohibiting any person convicted under the statute from remaining in close proximity to an animal in the future.
Additional Changes
In addition to the changes mentioned above, SB 1798 addresses several other miscellaneous issues throughout the sex offense statutes. Some examples are:
Replaces term “child pornography,” with “child sexual abuse material” in several applicable statutes.
Expands the definition of “sexual conduct,” in Florida Statutes ss. 775.0847, 827.071, and 847.001, to include simulated lewd exhibition of the genitals.
Amends Florida Statute s. 775.0847 to replace the term “movie” with “motion picture, film, video, or computer-generated motion picture, film, or video”.
Amends Florida Statute s. 847.011(5), F.S., relating to the possession of obscene, child-like sex dolls, to provide that a law enforcement officer may arrest without a warrant any person who he or she has probable cause to believe possesses a child-like sex doll (and allows search warrants to be issued).