Loophole in Florida's sex crime law failed Jeffrey Epstein's accusers. It still exists today

John Pacenti | Palm Beach Post

Show Caption Hide Caption Epstein's death ruled a suicide by hanging New York City's chief medical examiner has ruled that Jeffrey Epstein died by suicide. Epstein was found dead in his cell on Aug. 10.

WEST PALM BEACH, Fla. – Palm Beach police handed State Attorney Barry Krischer in 2006 the names of five victims and 17 witnesses to build a case of rape and serial sexual molestation against Jeffrey Epstein.

The girls had been lured with the promise of $200 for an hour’s work giving Epstein a massage only to find themselves trapped.

Eight of the witnesses were 16- and 17-year-olds. All said Epstein had molested them.

But under Florida law, the accused could not be charged with molesting those eight. And that remains the case today.

Any potential related charges filed against Epstein would never have risen above misdemeanor battery.

Under state law, anyone over the age of 16 who is molested but not penetrated can at best hope their assailant spends a year behind bars – the penalty for a first-degree misdemeanor.

For victims, that means the potential punishment for their abuser is far less than a sex crime and the statute of limitations is far shorter.

Sexual battery, a felony charge, applies to instances of intercourse or digital penetration, not fondling. Lewd or lascivious offenses for fondling or indecent exposure also constitute a felony but only for victims under 16.

While much attention has been paid to how Krischer – and subsequently the U.S. Justice Department – fumbled the case against the multimillionaire, the renewed interest in everything Epstein gives advocates a chance to urge legislators to close this loophole.

The Epstein saga could've ended years ago: But to his first prosecutors, his victims were prostitutes

“A misdemeanor battery is not a sex offense crime,” said Palm Beach Gardens attorney Michael Dolce, himself a sex abuse survivor.

“So when somebody feels they’ve been subjected to a sex offense, the expectation is that the law will respond by categorizing it as a sexual crime.”

Dolce said the Legislature must address this issue because molestation often is a precursor to even more serious sexual offenses.

State Rep. Emily Slosberg, D-Delray Beach, agrees with Dolce that such “touching” crimes can precede rape or even murder. The current law might keep a victim from coming forward, she added.

Slosberg wants to introduce legislation next session that would provide separate penalties for various acts of sexual molestation – and address repeat offenders.

“It would apply for offenders of serial acts of molestation with similar circumstances,” Slosberg said. “There clearly is a loophole.”

The loophole doesn’t just fail teenage victims of sexual assault – but all victims.

Any person over the age of 16 can’t expect much from Florida law if they’re a victim of unwanted touching – whether it be a pinch at a bar or something far more invasive, such as grabbing a woman’s genitals.

It’s all the same crime. The assailant can be charged only with battery.

The Florida loophole also leaves the public at large unprotected.

A perpetrator accused of groping or molesting but convicted of misdemeanor battery doesn’t have to register as a sex offender.

'I've been dying for 25 years': How a cop has stalled his child sex abuse trial for decades

“There’s a broader problem, too – even with adult victims. Cases of groping or fondling are treated the same as a push or shove,” Dolce said. “Under the law, grabbing someone’s sexual organs is the functional equivalent of having shoved you in the arm.”

The Palm Beach Post in February 2018 reported how the school district buried sex abuse claims against Richard Valentine, a well-liked teacher at Bak Middle School of the Arts who also taught a drama camp for older teens.

Throughout the case, institutional indifference and the gap in Florida’s sex abuse laws prevented a full vetting of one student’s accusations, The Post found.

By the time the victim came forward and told police he had been molested at age 16, the statute of limitations had run out to charge Valentine even with battery. Jupiter police had found probable cause to charge Valentine, though.

The loophole was advantageous to a doctor accused of molesting women.

Prominent Jupiter neurosurgeon Ignacio Magana had been accused by at least 10 women of molestation and rape in Palm Beach, Martin and St. Lucie counties.

In the Martin County case, a woman accused him of trying to kiss her and rubbing his genitals up against her. He was charged only with battery and pleaded guilty.

Jennifer Dritt, executive director of Florida Council Against Sexual Violence, said serial sex offenders can exploit the loophole.

“The very people who are engaged in this type of activity are really intelligent, and they are often skilled and cunning at knowing what they can get away with and what they can’t get away with,” she said.

Dritt said one of her frustrations is getting lawmakers to listen.

Baptist church pastoral abuse claim: Why 2 women are speaking up about pastoral abuse 17 years after being told to stay silent

“Policymakers are more concerned about unintended consequences, about charging somebody with a sex crime when it’s another situation entirely,” Dritt said.

Dolce said when he talks to lawmakers or lawyers about fixing the loophole, a common concern is if the high school-age victim misrepresented her age.

But the state law is clear: The onus of confirming the age of one’s young partner is on the adult. It doesn’t matter if the teenager is lying.

Another refrain he hears is that 16- and 17-year-olds are having voluntary sex anyway with their peers.

“There is a world of difference between two 16-year-olds engaging in sexual activity and an adult having sexual relations with someone of that age,” Dolce said.

Jacksonville attorney Jay Howell said the Legislature attempted to provide counseling for 16- and 17-year-olds who were victims of certain sex crimes, such as fondling and exposure of genitals. Yet the bill stalled because the victims compensation fund is running out of money.

But with such an intense focus on everything Epstein, the time is ripe to fix the loophole, as well as the compensation lapse, he said.

Howell noted the psychological impact can’t be measured for a 16- or 17-year old who has been a victim of any kind of sexual abuse.

“The atmosphere is better now for the Legislature to look at this ... because in some of these situations – like Epstein’s case – the crimes are committed repeatedly,” he said. “That is a substantial crime and warrants more than a misdemeanor charge.”

#MeToo movement: It's been two years since #MeToo exploded. Now what?