Fla. Std. Jury Instr. (Crim.) 11.27

§ 944.35(3)(b)2., Fla. Stat.*

To prove the crime of Sexual Misconduct by a[n] (insert appropriate position of the defendant) upon an [Inmate] [Offender], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) engaged in sexual misconduct with (victim).

2 At the time, (defendant) was a[n] (insert appropriate position of the defendant).

3. At the time, (victim) was an [inmate] [offender supervised in the community by the Florida Department of Corrections].

§ 944.35, Fla. Stat.

“Sexual misconduct” means the oral, anal, or female genital* penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object. “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

Phillips v. State, 238 So. 3d 308 (Fla. 4th DCA 2018).

“Union” means contact.

§ 944.35, Fla. Stat.

The consent of the [inmate] [offender] to any act of sexual misconduct is not a defense.

Give the following instructions only if applicable.

“Sexual misconduct” does not include an act done for a bona fide medical purpose. “Bona fide” means genuine.

“Sexual misconduct” does not include an act done for an internal search conducted in the lawful performance of the employee’s duty.

§ 944.710, Fla. Stat.

“Volunteer” means a person registered with the Florida Department of Corrections or a contractor-operated correctional facility who is engaged in specific voluntary service activities on an ongoing or continual basis.

§ 944.710, Fla. Stat.

“Contractor-operated correctional facility” means any facility, that is not operated by the Florida Department of Corrections, for the incarceration of adults or juveniles who have been sentenced by a court and committed to the custody of the Department of Corrections.

§ 944.35, Fla. Stat.

The provisions of this statute do not apply to a[n] (insert appropriate position of the defendant) who engages in sexual misconduct and is legally married to an [inmate] [offender under the [Department’s] [facility’s] supervision], or to any (insert appropriate position of the defendant) who has no knowledge, and would have no reason to believe, that the person with whom the employee has engaged in sexual misconduct is an [inmate] [offender] under the [Department’s] [facility’s] supervision.

Lesser Included Offenses

SEXUAL MISCONDUCT BY A[n] [insert appropriate postion of the defendant] — 944.35(3)(b)2.

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Battery

784.03

8.3

Attempt

777.04(1)

5.1