Section 393.135 - Sexual misconduct prohibited; reporting required; penalties(1) As used in this section, the term: (a) "Covered person" includes any employee, paid staff member, volunteer, or intern of the agency; any person under contract with the agency; and any person providing care or support to a client on behalf of the agency or its providers.(b) "Sexual activity" means: 1. Fondling the genital area, groin, inner thighs, buttocks, or breasts of a person.2. The oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object.3. Intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator.4. Intentionally masturbating in the presence of another person.5. Intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person.6. Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.(c) "Sexual misconduct" means any sexual activity between a covered person and a client to whom a covered person renders services, care, or support on behalf of the agency or its providers, or between a covered person and another client who lives in the same home as the client to whom a covered person is rendering the services, care, or support, regardless of the consent of the client. The term does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of duty by a covered person.(2) A covered person who engages in sexual misconduct with an individual with a developmental disability who: (a) Resides in a residential facility, including any developmental disabilities center, foster care facility, group home facility, intermediate care facility for the developmentally disabled, or residential habilitation center; or(b) Is eligible to receive services from the agency under this chapter, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A covered person may be found guilty of violating this subsection without having committed the crime of sexual battery.
(3) The consent of the client to sexual activity is not a defense to prosecution under this section.(4) This section does not apply to a covered person who is legally married to the client.(5) A covered person who witnesses sexual misconduct, or who otherwise knows or has reasonable cause to suspect that a person has engaged in sexual misconduct, shall immediately report the incident to the central abuse hotline of the Department of Children and Families and to the appropriate local law enforcement agency. The covered person shall also prepare, date, and sign an independent report that specifically describes the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The covered person shall deliver the report to the supervisor or program director, who is responsible for providing copies to the agency's local office and the agency's inspector general.(6)(a) Any person who is required to make a report under this section and who knowingly or willfully fails to do so, or who knowingly or willfully prevents another person from doing so, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.(b) Any person who knowingly or willfully submits inaccurate, incomplete, or untruthful information with respect to a report required under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.(c) Any person who knowingly or willfully coerces or threatens any other person with the intent to alter testimony or a written report regarding an incident of sexual misconduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.(7) The provisions and penalties set forth in this section are in addition to any other civil, administrative, or criminal action provided by law which may be applied against an employee. s.1, ch. 2004-267; s.30, ch. 2006-227; s.8, ch. 2008-244; s.75, ch. 2014-19; s.9, ch. 2023-273.Amended by 2023 Fla. Laws, ch. 273,s 9, eff. 7/1/2023.Amended by 2014 Fla. Laws, ch. 19, s 75, eff. 7/1/2014.