Florida Legislators  Vote 122-5 To Repeal Law Passed In  1868

Florida lawmakers have apparently taken a small step to enter the modern day world by sending a bill to Governor Rick Scott.  The bill would eliminate Florida Statutes 798.01 and 798.02 which have been in effect since 1868, or essentially 148 years.  The two laws had their origins shortly after the end of the Civil War and the prevention of race mixing was probably a large part of the legislative intent.  Until Governor Scott signs the bill repealing the draconian law, under S798.01, it remains a second degree misdemeanor in Florida to “live in an open state of adultery” and both parties would be subject to a maximum of 60 days in jail and a maximum fine of $500. Got the wayward married folks covered there.  Under S798.02 non-married and married florida residents who have sex, or as described by the statute, “if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree.”  One would think these laws would be rarely enforced but according to an article in Police State USA, between 2007 and 2011, nearly 700 Florida residents were charged with misdemeanors for living together.  Additionally, these statutes don’t punish same sex couples for living together.  If  almost 700 Florida residents were in fact charged with crimes under these two statutes between 2007 to 2011, when that number is compared to the hundreds of thousands of Floridians living together as unmarried couples, the arrest and any prosecution is extremely rare. Any arrest and prosecution would also have to be very arbitrary.  This writer has handled thousands of criminal cases and works in about eight different counties without ever seeing anyone charged with violating these two laws.  What this writer does find noteworthy is the five elected lawmakers casting dissenting votes about overturning a seldom enforced law, regulating sex between consenting adults, from 1868, still consider this law necessary.  Can’t be too careful sometimes.

Regulation of Marriage

The second degree misdemeanors mentioned in the above paragraph are part of a regulatory attempt by government despite containing references to sexual activity that were incorporated as elements of the crime.  In our county alone, law enforcement’s number one or two arrests  by pure numbers on a daily basis (Duval County runs 35-40%) is for folks driving without a license.  The above law in the first paragraph is akin to having sex without being in a government licensed marriage, ie, an unlicensed marriage.  Locally our courthouse and the State of Florida just recently decided if gay couples could even be granted a marriage license.  The State of Florida now grants same sex couples the right to apply for and receive a marriage license, the right to marry and the right to divorce.  Our Duval County Courthouse had performed marriages for years up until the law changed granting gay couples marriage licenses.  Once the law changed and gays could marry, our Clerk of Court, Ronnie Fussell, decided that his courthouse and his court personnel would perform no weddings going forward. That was the only way he could avoid his people performing the ceremony for a gay couple.  The move was very coincidental with Mr. Fussell  simply stating it was a shortage of resources issue causing him to cease marriage operations 100% across the board, straight and gay alike.  Certain Judges and lawyers do, however,  perform marriages in the courthouse without the assistance of the clerk’s office.

Sex Crimes 

Florida has, like all states, has a myriad of statutes applying to crimes involving sex.  Allegations accusing one of being an offender involved with a sex crime often arise from incidents alleged to have happened years before.  In dealing with a child victim, or a victim who would have been a child years before, the victim doesn’t have to get even close with the time frame of the alleged abuse.  This is because children don’t really have a concept of months and years.  They will usually relate the time to where they lived, where they moved to, who was around or who they lived with, even what family pet they had at the time. When an allegation is coming forward years after and alleged event, there is seldom, if any, forensic evidence.  All law enforcement needs is a victim saying something happened.  Law enforcement will usually, but not always,  try to get something to corroborate the victim’s allegations.  Many times the corroboration comes right out of the soon to be arrested person’s mouth.  Law enforcement will attempt to get the suspect to agree to an interview.  A common request is to ask the accused to “come down to the station and clear things up so we can close this file.”  The accused, at this stage, probably does not know that law enforcement is 100% allowed to lie to him or her about what they do or do not have as far as evidence in the case.  Controlled phone calls are employed routinely also.  Here, a person, someone the accused knows, perhaps even the victim if now older, calls the accused.  Very pointed and scripted questions provided by sex crimes detectives are asked by the caller of the naive suspect who has no idea the phone call is being recorded.  Next to murder charges, nothing is more serious under Florida law than a sex crime involving a minor.  If you, a relative or a loved has received hints that a sex crime allegation may be brewing, you need to sit down with an experienced lawyer.  North Florida has plenty of criminal defense lawyers experienced in sex cases.  Almost all offer free consultations.  The Forbess Law Firm, 904-634-0900, has years of experience defending those accused of sex crimes in Duval, Clay, Nassau, St. Johns, Baker and Bradford counties. We always provide a free confidential consultation.









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