Fla. Std. Jury Instr. (Crim.) 21.21

§ 944.35(4(a), (4)(b), and (4)(c), Fla. Stat.

To prove the crime of Failure to Report Known or Suspected Unlawful Abuse or Sexual Misconduct by a State Corrections Department Employee upon an [Inmate] [Offender], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was an employee of the Florida Department of Corrections.

2. (Defendant) had a duty to make a report because [he] [she] either witnessed or reasonably suspected unlawful abuse or sexual misconduct by an employee of the Florida Department of Corrections upon an [inmate] [offender supervised in the community].

Give as applicable.

3. (Defendant) knowingly and willfully

a. failed to make and deliver such report.

b. prevented another person from making or delivering such report.

c. submitted inaccurate, incomplete, or untruthful information in such report.

d alter testimony or a written report regarding an incident where force was used or an incident of sexual misconduct.

“Willfully” means intentionally and purposely.

§ 944.35(3), Fla. Stat.

Each employee of the Florida Department of Corrections who witnessed or had reasonable cause to suspect that an [inmate] [offender under the supervision of the department in the community] had been unlawfully abused or was the subject of sexual misconduct must immediately prepare, date, and sign an independent report specifically describing the nature of the force used or the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The report must be delivered to the inspector general of the department with a copy to be delivered to the warden of the institution or the regional administrator.

§ 944.35(1), Fla. Stat.

An employee of the Florida Department of Corrections is authorized to apply physical force upon an inmate only when and to the extent that it reasonably appears necessary:

1. To defend himself or herself or another against such other imminent use of unlawful force;

2. To prevent a person from escaping from a state correctional institution when the officer reasonably believes that person is lawfully detained in such institution;

3. To prevent damage to property;

4. To quell a disturbance;

5. To overcome physical resistance to a lawful command; or

6. To administer medical treatment only by or under the supervision of a physician or his or her designee and only:

a. When treatment is necessary to protect the health of other persons, as in the case of contagious or venereal diseases; or

b. When treatment is offered in satisfaction of a duty to protect the inmate against self-inflicted injury or death.

§ 944.35(3), 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(3), Fla. Stat.

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

Give only if applicable.

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

Give only if applicable.

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

Give only if appliable.

§ 944.35(3), Fla. Stat.

The prohibition against sexual misconduct does not apply to an employee of the Florida Department of Corrections who engages in sexual misconduct and is legally married to an [inmate] [offender under the Department’s supervision], or to any employee 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 supervision.

Lesser Included Offenses

FAILURE TO REPORT KNOWN OR SUSPECTED UNLAWFUL ABUSE OR SEXUAL MISCONDUCT BY A STATE CORRECTIONS DEPARTMENT EMPLOYEE UPON AN [INMATE] [OFFENDER] — 944.35(4)(c)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Failure to report or preventing another from reporting

944.35(4)(a)

21.21

Submitting inaccurate, incomplete, or an untruthful report

944.35(4)(b)

21.21

Attempt

777.04(1)

5.1