During the school year and summer months, parents must rely on other individuals to care for and supervise their children. Whether it is a day care center, school, neighbor, camp, after school program, youth sports program, friend, relative, or a babysitter, a parent often times needs help caring for a child. Furthermore, it is part of a normal regimen of a child to be around adults, teachers, aides, babysitters, child care providers, and others. On most days, the child is cared for in a supportive environment. Unfortunately, child predators and molesters live or travel to virtually every community in the United States. A child predator or molester will use a position of trust or opportunities of vulnerability to prey on or molest a child.
Section 800.04, Florida Statutes contains some of the Florida law on point when a child is subjected to or exposed to the inappropriate / conduct of the alleged perpetrator. Each part of the statutes (like other laws on point) provide some details and definitions as to the nature of the conduct and the seriousness or level of the crime associated with such conduct.
Section 800.04 (5), Florida Statutes criminalizes Lewd or Lascivious Molestation as:
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4.
(c)1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age
commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Within the same statute (Section 800.04, Florida Statutes), there is also reference to the following crimes as well: Lewd or Lascivious Battery under Section 800.04 (4), Lewd or Lascivious Conduct under Section 800.04 (6), and Lewd or Lascivious Exhibition Section 800.04 (7).
Lewd or Lascivious Molestation is a crime defined by Florida law. When the evidence and facts support a case, the State Attorney / Prosecutor will use best efforts to prosecute the defendants / predators who harm the child through horrendous acts of molestation. At times, the evidence is insufficient to sustain a criminal prosecution but still is sufficient enough to warrant a civil case or claim against the Defendant and possibly other entities that caused or contributed to causing the acts of molestation. It should be noted that the standards of proof are different in the State of Florida between a civil case and a criminal case. The Prosecutor / State Attorney must prove that the child was molested beyond reasonable doubt while in a civil case – the standard of proof is the preponderance of the evidence which is the greater weight of the evidence. When a school, day care center or other entity is brought into the civil case. The following elements must be proved to establish a civil case against the entity:
2. Breach of Duty;
3. Causation; and
Let’s say a school hires a janitor or custodial help and fails to secure a background check. If a background check was performed, it would have shown a prior arrest and conviction for the assault on a child. Had a background check been properly performed, the janitor or custodian would not have been hired. Furthermore (for purposes of this hypothetical case example), the janitor molested an elementary school aged child on school grounds during school hours. A civil case can be plead regarding these facts. The school had a duty to conduct a background check and breached this duty. Because of this breach, the janitor had access to the child and molested the child thereby causing damages. All of the above elements of a civil case for negligenc would have been met to pursue the case against the school. Of course, each case must be evaluated on its own facts and circumstances.
A Florida Child Injury Lawyer can advise the parents regarding the rights of the child and the potential civil cases seeking damages / compensation for the injured child.