If police want to “just ask a few questions,” or you were arrested for something you did not do, the instinct is to explain and let the truth sort it out. In Hillsborough County courtrooms, that instinct sends innocent people into cases that take months to undo. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have spent more than 25 years in Hillsborough County courtrooms, including as former COO of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys. Our attorneys step in before the first interview or the first court date, gather the proof of innocence, and put it in front of the prosecutor while the charging decision is still open.

Why do innocent people need a criminal defense lawyer?

Innocent people need a lawyer because the system acts on evidence, and the evidence against an innocent person can look convincing. An officer needs only probable cause to arrest. A prosecutor decides whether to file charges largely from the arrest report. Neither one has to look for the proof that you did not do it, and neither one represents you.

Wrongful convictions are real and documented. The National Registry of Exonerations 2024 Annual Report counted 147 exonerations in 2024, three of them in Florida, and 3,646 exonerations nationwide from 1989 through the end of 2024. The people exonerated in 2024 lost an average of 13.5 years to wrongful imprisonment. Those are only the cases where someone proved innocence after a conviction; they do not count the innocent people who pleaded to a lesser charge to go home.

The scale of the system makes that risk concrete. From October 2024 through September 2025, the Hillsborough County Clerk of Court opened 21,053 new felony cases, according to the Clerk’s monthly outputs report for county fiscal year 2024-25. In our firm’s experience, a case moving through that volume gets close attention only when the defense supplies it.

How do innocent people end up charged or convicted?

Innocent people are usually charged because of a false accusation, a mistaken identification, or their own words taken out of context. The 2024 Registry report found that 72% of that year’s exonerations included perjury or another false accusation, 71% involved official misconduct, and 26% rested at least in part on a mistaken witness identification.

Our post on circumstantial evidence in Florida explains how the State builds a case without an eyewitness, and our guide to cell phone location evidence as an alibi shows how the same data police use can prove where you really were.

Should I talk to the police if I am innocent?

No. Ask for a lawyer and decline to answer questions, even if you are innocent. Officers are trained to get statements, and an innocent person who explains often confirms small facts, such as being in the area or knowing the accuser, that become the backbone of the State’s case.

The right to stay silent belongs to everyone. In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court held that police must warn a person in custody of the right to remain silent and the right to a lawyer, and must stop questioning once the person asks for one. Say the words out loud: “I want a lawyer, and I am not answering questions.” Then let your attorney decide whether, when, and how your side of the story is told.

If detectives have called you but no one has arrested you, that is the best time to hire a lawyer. Our firm’s representation before charges are filed puts an attorney between you and the investigation from the first phone call.

What does a defense lawyer do for an innocent client?

For an innocent client, a defense lawyer finds and preserves the proof of innocence, then gets it in front of the person deciding the case. Most of that work has to happen early, because the best evidence disappears first.

1. Stop the damage. Our attorneys tell police that you will not be interviewed and handle all contact with detectives.
2. Preserve evidence. Surveillance video is often recorded over within days or weeks. We send preservation letters and subpoena records, phone data, and receipts.
3. Find witnesses. Police often interview only the accuser and the people the accuser names. We find the witnesses who were never contacted.
4. Test the forensic evidence. Our firm works with independent experts in DNA, digital forensics, and other disciplines to check what the State’s lab reported.
5. Present the case to the prosecutor. Before charges are filed, we can give the assigned prosecutor the evidence and the legal problems in writing, which can lead to a decision not to file at all.
6. Try the case if needed. When the State will not drop the case, the evidence gathered early becomes the trial defense.

That approach has worked for our clients. In one Tampa sexual battery case, the State pressed forward against our client based on a misidentification and a cold DNA hit. Through our investigation, DNA analysis, and expert consultation, we showed our client was not the perpetrator, and all charges were dismissed. Past results do not guarantee future outcomes. Our Hillsborough County criminal defense attorney team handles cases like this from the first call through trial.

Why is innocence alone not enough in court?

Innocence alone is not enough because a jury decides the case on the evidence it hears, and an innocent person without a lawyer often has no way to put the right evidence in front of it. The burden of proof is on the State, but the defense still has to expose the weaknesses in the State’s case.

Research on wrongful convictions shows how often the system gets it wrong even in the most serious cases. In a peer-reviewed study, Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proc. Nat’l Acad. Sci. 7230 (2014), Samuel Gross and colleagues estimated that at least 4.1% of defendants sentenced to death would be exonerated if they remained under a death sentence indefinitely. Those are the cases that get the most scrutiny of any in the system.

Undoing a wrongful conviction after the fact takes years of appeals and postconviction litigation, and many people never get that far. The time to prove innocence is before the conviction, while witnesses and video still exist.

What if I am guilty? Do I still need a lawyer?

Yes. A person who committed the offense still has every constitutional right, and a lawyer is how those rights turn into a better result: a dismissal when police broke the rules, a reduced charge, diversion, or a lower sentence. The right to counsel does not depend on innocence. In Gideon v. Wainwright, 372 U.S. 335 (1963), a Florida case, the U.S. Supreme Court held that a person charged with a felony in state court has a right to a lawyer even if he cannot afford one.

Most cases end in a negotiated plea, which is why the lawyer’s work matters even when guilt is not in dispute. In Missouri v. Frye, 566 U.S. 134 (2012), the Supreme Court held that defense counsel has a duty to tell the client about formal plea offers from the prosecution, and it noted that 94% of state convictions are the result of guilty pleas. The terms of that plea are where a defense lawyer earns the fee.

The downward departure statute lists reasons a judge can use to go below the Criminal Punishment Code scoresheet, the point system that sets the lowest permissible prison sentence. One of them is that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” Another is that the victim “was an initiator, willing participant, aggressor, or provoker of the incident.” Proving those reasons takes evidence, and gathering it is defense work.

The record matters as much as the sentence. Under section 943.059, a person can petition to seal a record only if he or she has never been adjudicated guilty in Florida of a criminal offense and was not adjudicated guilty in the case being sealed. A plea negotiated with a withhold of adjudication, or a case closed through diversion, can keep that door open; a conviction closes it.

When should I hire a lawyer if I am being investigated or was just arrested?

Hire a lawyer as soon as you learn police want to talk to you, and no later than first appearance if you were arrested. After an arrest in Hillsborough County, first appearance happens within 24 hours, and the State Attorney’s Office generally has 30 days to file charges if you are in custody and 60 days if you are out. Those windows are when innocence evidence does the most good.

Our guide on what to do after being arrested in Tampa walks through the first 48 hours and the first 30 days step by step. If cost is the worry, our post on what a criminal defense attorney costs in Tampa explains how fees are set, and our comparison of a public defender and a private attorney covers both options.

Frequently asked questions

Can I be arrested in Florida if I didn’t do anything wrong?

Yes. An officer can arrest on probable cause, which is far less than proof, so a false report or a mistaken identification can lead to an arrest of an innocent person. The Brancato Law Firm handles these cases from the first call, gathering the evidence that the arrest report leaves out and presenting it to the prosecutor before charges are filed.

Will hiring a lawyer make me look guilty?

No. Asking for a lawyer is a constitutional right, and prosecutors and judges see represented clients every day. Our attorneys at The Brancato Law Firm present innocent clients’ evidence through counsel so that nothing the client says can be twisted, which protects the client far more than a solo explanation to a detective.

Can charges be dropped before court if I am innocent?

Yes. The State Attorney can decline to file charges, file a “no information,” or dismiss a case after filing with a nolle prosequi. The Brancato Law Firm pursues that result through pre-file advocacy, putting witness statements, video, and other proof in front of the assigned prosecutor before the filing decision.

What if the person who accused me wants to take it back?

An accuser cannot drop a criminal case in Florida, because the State Attorney decides whether to prosecute. The Brancato Law Firm can help an accuser who wants to recant do so properly, such as through a sworn affidavit given to the prosecutor, without the client contacting the accuser, which can violate a no-contact order.

Should I take a plea deal if I am innocent?

Only you can decide whether to accept a plea, and you should never plead guilty to something you did not do without understanding every consequence. Under Missouri v. Frye, your lawyer must tell you about every formal offer, and our attorneys at The Brancato Law Firm explain each offer against the strength of the defense, the sentence you face at trial, and the effect on your record.

Does a public defender work for an innocent person?

Yes. A public defender represents anyone the court appoints, innocent or not, and many are excellent lawyers carrying heavy caseloads. The Brancato Law Firm offers private representation that can start before an arrest or before first appearance, which is earlier than an appointment usually begins.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Talk to our attorneys before you talk to anyone else

Before you answer a detective’s call or explain yourself to anyone, call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys can start gathering the proof of your innocence today, while video and witnesses are still available, and you can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. For more about our defense strategies, visit our Hillsborough County criminal defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Most adult sexual battery trials are not about whether sex happened. They are about whether it was consensual, and the jury decides that from texts, timelines, witnesses, and the two people’s accounts. I learned how those trials are won in the Major Crimes Unit, defending sex crimes and homicide cases, and I have tried more than 150 jury trials to verdict since. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys build consent defenses the way juries actually evaluate them: from the evidence of what happened before, during, and after the encounter.

Is consent a defense to sexual battery in Florida?

Yes, for adults. Under section 794.011, Florida Statutes, sexual battery on a person 18 or older requires proof that the act was “without that person’s consent.” When the defense is consent, the State carries the burden of proving lack of consent beyond a reasonable doubt; the accused does not have to prove consent. Our Tampa sex crimes lawyer team builds that reasonable doubt from the evidence.

The statute defines consent as “intelligent, knowing, and voluntary consent” that “does not include coerced submission,” and it adds that consent shall not be construed to mean “the failure by the alleged victim to offer physical resistance.” In plain English: silence or no struggle is not proof of consent, but it is not proof of non-consent either. The jury looks at the whole picture.

Is believing the other person consented a defense in Florida?

No, not by itself. In Statler v. State, 349 So. 3d 873 (Fla. 2022), an Alachua County man convicted of sexual battery argued the State should have to prove he knew or should have known the woman did not consent. The Florida Supreme Court disagreed. It held that sexual battery is a general intent crime: the State must prove beyond a reasonable doubt that the complainant did not in fact consent, but not what the accused knew about her state of mind.

The same opinion explains why consent defenses still work. The Court said consent is an objective question decided from “what the complainant said and did,” so the jury asks whether the evidence proves the accused “did not have a willing partner.” That is where our attorneys focus: on the words, messages, and conduct a reasonable person would read as agreement.

When is consent not a defense?

Consent is legally impossible or irrelevant in several situations, and a consent defense will not work in them.

For age-based charges, see our posts on the age of consent in Florida and on why not knowing someone’s age is not a defense. The degrees and penalties for each form of the offense are set out in our guide to what sexual battery is in Florida.

What happens when alcohol is involved?

Alcohol is present in a large share of these cases. Antonia Abbey’s review in the Journal of Studies on Alcohol (Supplement No. 14, 2002) found that at least half of sexual assaults among college students involve alcohol consumption by the perpetrator, the alleged victim, or both. Drinking does not by itself erase consent under Florida law, but heavy intoxication is often the center of the State’s case.

Florida’s statute treats voluntary and involuntary intoxication differently. In Amelio v. State, 253 So. 3d 1150 (Fla. 4th DCA 2018), a Broward County jury heard an instruction on “mental incapacity” even though the woman had voluntarily drunk at several bars and nothing showed a substance was given to her without her consent. The Fourth District reversed the conviction and ordered a new trial, holding that the statutory definition of mental incapacity covers involuntary intoxication, not voluntary drinking.

Heavy voluntary intoxication can still support a conviction on other grounds. In Fogarty v. State, 403 So. 3d 1026 (Fla. 1st DCA 2024), a Bay County case, neither the defendant nor the woman remembered sex, but the defendant admitted carrying her to a couch after she passed out, and DNA was found later. The First District held a jury could infer she was too drunk to give “intelligent, knowing, and voluntary consent” and was unconscious, and it affirmed. Together the two cases show where the fight is: the defense contests whether the State has proof of incapacity or helplessness at the moment of the act, not just proof of drinking.

How often are these cases reported and prosecuted?

The Bureau of Justice Statistics report Criminal Victimization, 2023 estimated 481,020 rape or sexual assault victimizations nationwide in 2023 and found that 46.0% were reported to police. Locally, the Florida Legislature’s Office of Economic and Demographic Research Circuit 13 profile reports 155 new prison commitments for sexual or lewd behavior from the 13th Judicial Circuit in 2025. Our attorneys treat every sexual battery accusation as a case that can end in prison and lifetime registration, because many do.

What evidence supports a consent defense?

A consent defense is built from evidence, not from the accused’s word alone. These are the sources our attorneys collect first:

• Messages before and after the encounter. Texts, dating-app chats, and social media messages often show planning, mutual interest, or a friendly tone afterward.
• Timeline evidence. Ride-share receipts, door cameras, bar tabs, and phone location data show how much time passed and how each person was acting.
• Witnesses. Friends, bartenders, and roommates can describe the alleged victim’s condition and conduct, which bears on capacity.
• Forensic findings. A SANE exam that shows no injury does not prove consent, but it can rebut a claim of force.
• Motive and prior statements. Changed accounts and reasons to fabricate are proper subjects of cross-examination, within the limits of Florida’s rape shield law.

Consent defenses do win at trial. In one sexual battery case, Rocky Brancato persuaded a jury that an encounter between a man and a woman in a van in Ybor City was consensual; the defense showed the two were interrupted and that the woman was embarrassed, and the jury returned a verdict of not guilty of sexual battery. Past results do not guarantee future outcomes.

What should you do if you are accused?

Do not contact the accuser and do not agree to a recorded “controlled call,” which detectives often arrange through the accuser before an arrest. Do not delete messages; deleted messages look like consciousness of guilt and they are often the best consent evidence. Call a lawyer who offers representation before charges are filed, because many sexual battery cases are investigated for weeks before a warrant issues.

Frequently asked questions

Can you consent to sex while drunk in Florida?

Yes, a person who has been drinking can still consent, because Florida’s definition of mental incapacity covers substances given without the person’s consent, as the court held in Amelio v. State. The Brancato Law Firm focuses these cases on whether the State can prove the person was helpless or unable to give intelligent, knowing, and voluntary consent at the time.

Is an honest belief in consent a defense to sexual battery in Florida?

No. Under Statler v. State, the State does not have to prove the accused knew there was no consent, so a belief alone is not a defense. The Brancato Law Firm instead puts the complainant’s own words and conduct in front of the jury, because that evidence decides whether the State has proved lack of consent.

Is a lack of resistance proof of consent in Florida?

No. Section 794.011(1)(a) states that consent shall not be construed to mean the alleged victim’s failure to physically resist. Our attorneys at The Brancato Law Firm build consent defenses from affirmative evidence such as messages, conduct, and timeline records rather than from the absence of a struggle.

Can a sexual battery charge be dropped if the accuser recants in Florida?

A recantation does not automatically end the case, because the State Attorney’s Office decides whether to prosecute and can proceed with other evidence. The Brancato Law Firm presents recantations and supporting evidence to prosecutors through pre-file advocacy or a motion to dismiss when the facts support it.

Can my past relationship with the accuser be used to show consent?

Sometimes. Florida’s rape shield law generally bars evidence of the accuser’s sexual history, but it allows evidence of prior consensual activity with the accused when it is relevant to consent. The Brancato Law Firm litigates that evidence before trial so the jury can hear it; our sex crimes defense practice handles these motions regularly.

Is consent a defense if the other person was 16 or 17?

No, if the accused was 24 or older, because section 794.05 does not require proof of non-consent. Our attorneys at The Brancato Law Firm explain the age bands in our post on unlawful sexual activity with a minor.

Talk to a Tampa sexual battery defense attorney

Messages get deleted, cameras overwrite footage, and witnesses forget within weeks, so the first move is to lock down the evidence of consent. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and call us at any hour if a detective has contacted you. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges. For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A prosecutor in an underage sex case does not have to prove the accused knew the other person’s age. The State proves the act and the birth date, and the case is largely made. That is why the defense has to start somewhere else. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I defended these cases in the Major Crimes Unit, which handled sex crimes and child abuse, and I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys focus on what still moves a case when mistake of age is off the table: the charge, the evidence of the act, the ages, and the facts a prosecutor weighs before filing.

Is “I didn’t know their age” a defense to a sex crime in Florida?

No. Section 794.021, Florida Statutes, provides that when a crime in chapter 794 depends on the alleged victim being under a certain age, “ignorance of the age is no defense,” and neither is the minor’s misrepresentation of age or the accused’s good-faith belief that the person was older. Section 800.04(3), Florida Statutes, applies the same rule to lewd or lascivious offenses involving a person under 16. Florida law treats these as strict liability offenses as to age.

A fake ID, an adult dating profile, a bar wristband, or a direct statement such as “I’m 19” does not change the legal result at trial. The jury will be instructed that the defendant’s belief about age is not a defense.

What have Florida courts said about mistake of age?

Florida courts have enforced the rule as written. In Hodge v. State, 866 So. 2d 1270 (Fla. 4th DCA 2004), a man convicted of sexual activity with a 17-year-old under section 794.05 asked the judge to instruct the jury that the State had to prove he knew she was underage. The Fourth District held the offense is strict liability, that he “could not defend on his lack of criminal intent or mistake of age,” and affirmed.

Two years later, in Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006), a 26-year-old convicted under the same statute argued that punishing him without proof he knew the girl’s age violated due process. The First District rejected the challenge, holding that Florida has long treated statutory rape as a strict liability crime and that the Legislature “left no doubt” about it. The takeaway is plain: a constitutional attack on section 794.021 is not a realistic defense in a Florida trial court.

Not everyone agrees the rule is wise. Professor Catherine L. Carpenter argued in “On Statutory Rape, Strict Liability, and the Public Welfare Offense Model,” 53 American University Law Review 313 (2003), that courts should allow a reasonable mistake-of-age defense. That debate has not changed Florida law, but it explains why prosecutors and judges sometimes treat a well-documented, reasonable mistake as a reason for leniency.

How common are these cases, and who are the accused?

Most statutory rape cases involve people who know each other. An Office of Juvenile Justice and Delinquency Prevention study of 2000 FBI NIBRS data (Troup-Leasure and Snyder, published 2005) found that 29% of statutory rape offenders were boyfriends or girlfriends and 62% were acquaintances. Those are exactly the relationships where a person may honestly misjudge an age, and exactly the cases where section 794.021 removes that argument.

The stakes are high in our circuit. The Florida Legislature’s Office of Economic and Demographic Research Circuit 13 profile reports 155 new prison commitments for sexual or lewd behavior from the 13th Judicial Circuit in 2025, a 23.9% increase over 2024. Our Tampa sex crimes lawyer team uses every tool before trial because a conviction in these cases so often means prison and registration.

If mistake of age is not a defense, how do our attorneys fight these charges?

We challenge the elements the State still has to prove and we work the charging decision. Mistake of age removes one argument; it does not relieve the State of proving every other element beyond a reasonable doubt.

1. Proof the act happened. Many cases rest on one person’s account. We test it against phone records, location data, messages, and prior statements.
2. Proof of age. The State must prove the actual age with competent evidence, and the exact age decides which statute applies and which degree of felony.
3. The right statute. A 23-year-old with a 17-year-old does not violate section 794.05 at all, because that statute starts at age 24. Our post on the unlawful sexual activity with a minor statute explains the age bands.
4. Suppression issues. Statements taken without proper warnings and phone searches without a valid warrant or consent can be challenged with a motion to suppress.
5. Pre-file advocacy. Before charges are filed, we can present the prosecutor with evidence of the circumstances, including the minor’s own representations.

Evidence of a minor’s misrepresentation does not win at trial, but it can change outcomes before trial. In one case, Rocky Brancato uncovered the complainant’s extensive online presence showing that she consistently misrepresented her age and had given different accounts of her story; when that evidence was presented to the prosecution, the charges were dismissed. Past results do not guarantee future outcomes.

How is this different from Florida’s age of consent?

The age of consent sets who can legally agree to sex; section 794.021 says what happens when someone gets that age wrong. Florida’s general age of consent is 18, with exceptions for 16- and 17-year-olds whose partner is under 24. Our guide to the age of consent in Florida walks through those age bands, and our post on the consent defense in Florida sex crimes cases explains why a minor’s agreement is never a defense under section 800.04(2).

Does the rule work differently in online sting cases?

Yes. Online solicitation and traveling to meet a minor under section 847.0135, Florida Statutes, cover contact with “a child or another person believed by the person to be a child.” In a sting, the “minor” is usually an adult detective, so the case turns on what the accused believed. Evidence that the accused thought he was talking to an adult can be a real defense in those cases, along with the way the sting was run. That is the opposite of the rule for in-person offenses.

What should you do if you are under investigation?

Do not contact the alleged victim, the family, or the detective, and do not explain what you believed about the person’s age. Those explanations admit the act, which is often the harder element for the State to prove. Call a lawyer who offers representation before charges are filed, preserve your phone and accounts without deleting anything, and let counsel decide what, if anything, goes to the State Attorney’s Office.

Frequently asked questions

What if the minor showed me a fake ID in Florida?

A fake ID is not a defense at trial under section 794.021, which expressly rejects a minor’s misrepresentation of age as a defense. The Brancato Law Firm can still use that evidence with prosecutors when it is documented and credible, which can affect the charge or the plea offer.

Can a reasonable belief that someone was 18 reduce my sentence in Florida?

It can be part of the mitigation picture, but it does not create a legal defense. Our attorneys at The Brancato Law Firm present the circumstances, the age gap, and the client’s background through our sex crimes defense practice when arguing for a lower sentence or a downward departure.

Is mistake of age a defense to lewd or lascivious battery in Florida?

No. Section 800.04(3) bars the defendant’s ignorance of the alleged victim’s age, the alleged victim’s misrepresentation, and a bona fide belief about age as defenses. The Brancato Law Firm focuses these defenses on whether the act occurred and whether the State can prove the specific elements charged.

Can statutory rape charges be dropped in Florida?

Yes. Charges can be dropped when the evidence of the act is weak, the ages do not fit the statute charged, or the complainant’s account changes. Before a case is filed, The Brancato Law Firm presents evidence to the State Attorney’s Office through pre-file advocacy in an effort to stop the charge.

Does Florida have a close-in-age exception?

Florida has no general close-in-age defense, but age gaps matter in two ways: section 794.05 applies only to accused persons 24 or older with a 16- or 17-year-old, and section 943.04354 allows some young people to seek removal from registration. Our attorneys at The Brancato Law Firm explain both in our guide to registry removal.

Talk to a Tampa sex crimes defense attorney

What you say in the first days of an investigation can decide whether a mistaken belief about age ever gets heard by a prosecutor. Our attorneys will review the evidence, the ages, and the statute before anyone speaks to the detective. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159; you can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa. For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

In a sexual battery case that comes down to one person’s word against another’s, some of the most important rulings happen before a jury is seated, when the judge decides what the jury will be allowed to hear about the accuser. I learned how those cases are built as a Major Crimes Unit attorney handling sex crime and child abuse cases. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have tried more than 150 jury trials to verdict. Our attorneys prepare rape shield motions early because the evidence the statute allows must be proven to the judge before trial, in writing and with witnesses ready.

What does Florida’s rape shield law say?

Florida’s rape shield law says that “specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence” in prosecutions for sexual battery, lewd and lascivious offenses, and human trafficking. That rule appears in section 794.022(2), Florida Statutes, and it covers cases charged under section 787.06, section 800.04, and section 794.011, Florida’s sexual battery statute.

The same statute contains other rules that shape every sex crime trial. The accuser’s testimony “need not be corroborated,” so a case can go to a jury on testimony alone. Reputation evidence about the accuser’s sexual conduct, and evidence offered to show that the accuser’s manner of dress “incited the sexual battery,” may never be admitted. And a defendant’s use of a condom, or an accuser’s request that one be used, is not by itself relevant to whether a crime happened or whether there was consent. At The Brancato Law Firm, we walk clients through these rules at the first meeting so they understand which arguments are available and which are off the table.

Why does the rape shield law matter in Florida sex crime cases?

The rape shield law matters because many Florida sex crime cases rest almost entirely on the accuser’s credibility, and the statute decides which credibility evidence the jury hears. The number of these prosecutions is substantial. In 2025, Florida recorded 1,933 arrest events for rape, including 74 in Hillsborough County, according to Florida Department of Law Enforcement arrest data published on the Florida Department of Health’s FLHealthCHARTS. That statewide figure is about 41 percent lower than the 3,288 rape arrest events recorded in 2006 in the same data series. Each of those arrests can lead to a prosecution in which section 794.022 controls the evidence.

Legal scholars disagree about where the line should sit. Law professor Michelle J. Anderson argued in a 2002 analysis of rape shield laws that the exceptions in most state statutes weaken the protection the laws promise accusers. For a person accused in Florida, the practical lesson runs the other way: the exceptions are real, but they are narrow, and a judge will apply them only when the defense proves the specific facts. Our attorneys at The Brancato Law Firm build each exception on documents and witnesses, not on general claims about the accuser.

What are the exceptions to Florida’s rape shield law?

Florida’s rape shield law has two written exceptions in the statute and one constitutional exception created by the courts. Each one requires the defense to show the judge, outside the jury’s presence, exactly why the evidence matters to the case.

Exception 1: Proof the defendant was not the source of semen, pregnancy, injury, or disease

Evidence of the accuser’s activity with someone else is admissible if it may prove that the defendant “was not the source of the semen, pregnancy, injury, or disease.” In Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994), a Second District case, a nurse testified that a child’s physical findings showed intercourse that could have happened at any time in the prior three years. The defense was barred from showing that someone else had abused the child during that period. The court held the exclusion was error, explaining that when the State offers medical evidence of intercourse, the defendant is entitled to show prior intercourse with someone else, and it reversed for a new trial. Our post on how to challenge SANE exam evidence explains how this exception works with the medical file.

Exception 2: A pattern of conduct so similar that it is relevant to consent

When consent is the defense, the statute allows evidence of “a pattern of conduct or behavior” by the accuser “so similar to the conduct or behavior in the case that it is relevant to the issue of consent.” Courts read this narrowly. In Carlyle v. State, 945 So. 2d 540 (Fla. 2d DCA 2006), the defense argued that an accuser’s past prostitution showed a pattern, and the Second District called the argument that “prostitution is prostitution” insufficient. A pattern means repetitive conduct that closely resembles the defendant’s version of the encounter. Our attorneys look for specific, repeated, documented conduct before we rely on this exception.

Exception 3: The defendant’s right to a full and fair defense

The rape shield rule gives way when applying it would deny the accused a fair trial. In Lewis v. State, 591 So. 2d 922 (Fla. 1991), a stepfather argued that his stepdaughter invented the accusation to keep a scheduled gynecological exam from revealing her sexual relationship with her boyfriend. The trial court kept that evidence out. The Florida Supreme Court held that when the rule “interferes with confrontation rights, or otherwise precludes a defendant from presenting a full and fair defense, the rule must give way to the defendant’s constitutional rights,” and it sent the case back.

The Second District applied Lewis a year later in Dixon v. State, 605 So. 2d 960 (Fla. 2d DCA 1992). The prosecutor asked jurors how a five-year-old could describe sexual acts unless the accusation were true, while the defense had been barred from calling a witness who said he had seen the child engage in sexual play weeks earlier. The court held that the testimony was relevant and “critical” to the fabrication defense, and it reversed. Motive to fabricate and the source of a child’s sexual knowledge are two of the most common ways our attorneys at The Brancato Law Firm raise this exception.

What evidence is not covered by the rape shield law?

The rape shield law does not cover prior sexual activity between the accuser and the defendant, or accusations of nonconsensual acts by other people. Florida appellate courts have said the statute “only relates to consensual sexual activity with a person other than the accused,” a phrase from Gomez v. State, 245 So. 3d 950 (Fla. 4th DCA 2018) that the First District repeated in Thorne v. State, 271 So. 3d 177 (Fla. 1st DCA 2019). That evidence is still subject to the ordinary rules of relevance, and the judge can exclude it if its value is outweighed by unfair prejudice.

• Prior relationship with the defendant. Gomez held that “the statute does not prohibit admission of sexual incidents between the victim and offender.” A prior relationship can matter to consent and to motive.
• Accusations against other people. In Thorne, the accuser named three other men in an advocacy center interview but did not name the defendant. The First District held the rape shield law did not apply and that excluding the evidence was error, though it found the error harmless on that record.
• Another person as the attacker. In Vincent v. State, 368 So. 3d 993 (Fla. 4th DCA 2023), the trial court used the rape shield law to stop the defense from suggesting someone else raped the accuser. The Fourth District agreed that was error, but affirmed because DNA proved the defendant fathered the child.
• Prior false accusations. A prior accusation that was false is not “consensual sexual activity,” so the statute does not bar it. Gomez explained that admissibility turns on relevance, such as similarity to the current accusation. Our post on whether prior accusations can be used against you covers the other side of that issue.

What did the Second District decide in Johnson v. State in 2026?

In Johnson v. State, No. 2D2024-0982 (Fla. 2d DCA Sept. 25, 2026), the Second District Court of Appeal reversed two sexual battery convictions because the jury was not allowed to hear that, during a 2013 Department of Children and Families investigation, the accuser described sexual abuse by her stepfather while denying any sexual abuse by the defendant, her stepuncle. The trial judge in Sarasota County let the defense mention “abuse” in general terms but barred any reference to its sexual nature. The jury convicted on two counts and acquitted on three.

The Second District held that the sexual nature of the earlier allegation was “necessary to adequately draw a comparison” with the abuse she did not report against the defendant during the same interview, and that it supported the defense theory that the later accusation was fabricated. Because the case was “he said, she said,” the error was not harmless, and the court ordered a new trial on the two counts. The lesson for defendants is that a statement an accuser made years earlier to DCF or a Child Protection Team can be powerful evidence, and the defense should fight to present it in full rather than accept a watered-down version. Johnson binds trial judges in Hillsborough, Pinellas, and Pasco Counties, which sit in the Second District.

How does the in camera hearing work?

An in camera hearing is a private hearing, outside the jury’s presence, where the judge decides whether evidence of the accuser’s sexual history fits an exception before anyone mentions it at trial. The statute requires that the evidence be “first established to the court in a proceeding in camera,” so the defense carries the burden of showing the judge exactly what the evidence is and why it matters.

In our experience in Hillsborough County courtrooms, the defense that wins an in camera hearing is the one that arrives with the specific witnesses and documents, not a general argument about the accuser. Judges in the 13th Judicial Circuit rule on the record in front of them, and a vague proffer usually means the evidence stays out and the issue is weaker on appeal. Our Hillsborough County criminal defense attorneys prepare these motions alongside depositions so the proffer is complete.

What should you do if you are accused of a sex crime in Florida?

If you are accused of a sex crime in Florida, do not speak with investigators, do not contact the accuser, and preserve every message and record that shows your relationship and the accuser’s statements. The evidence that supports a rape shield exception, such as prior messages, earlier reports, or medical records, can disappear if no one asks for it early. If you think you are under investigation but have not been charged, our representation before charges are filed can address the case before the State decides what to file. For the charges themselves, see our guide to what sexual battery is in Florida, and for cases involving children, our guide to child hearsay in sex cases.

Frequently asked questions about Florida’s rape shield law

Can my lawyer ask about the accuser’s past relationships at trial?

Usually not about specific sexual activity with other people, unless the judge first finds an exception applies at an in camera hearing. The Brancato Law Firm files those motions before trial so the judge rules on a full record rather than an objection in front of the jury, as our Tampa sex crimes defense lawyers do in every contested case.

Does the rape shield law apply to a prior relationship between me and the accuser?

No. The statute covers only activity with people other than the defendant, so a prior relationship between the accuser and the accused is judged by ordinary relevance rules. Our attorneys at The Brancato Law Firm use that history when it bears on consent or on a motive to accuse.

Can the defense show the accuser made a false accusation before?

It can, if the earlier accusation is relevant, such as being similar to the current one or showing a motive. A prior false accusation is not consensual sexual activity, so section 794.022 does not bar it, and The Brancato Law Firm investigates earlier reports to DCF, police, and schools to find them. The leading appellate discussion is in Gomez.

Does the rape shield law apply in child sex abuse cases?

Yes. The statute applies to prosecutions under section 800.04, which covers lewd and lascivious offenses against children, as well as sexual battery. Our attorneys at The Brancato Law Firm often rely on Dixon and Audano in child cases, where the source of a child’s knowledge or injury is the central question; our guide to Florida’s age of consent explains the underlying charges.

Can the prosecutor bring up my sexual history?

The rape shield statute protects the accuser, not the defendant. Evidence of a defendant’s other sexual conduct is governed by the Williams rule and related statutes instead, and The Brancato Law Firm challenges that evidence through pretrial motions to exclude or limit it.

Can sexual battery charges be dropped in Florida?

Yes. Prosecutors can drop or reduce charges when the evidence, including evidence a rape shield ruling lets in, undermines the accuser’s account. Our attorneys at The Brancato Law Firm present that evidence to the State Attorney’s Office early when it gives the client the best chance at a dismissal.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a Tampa sex crimes defense attorney

Rape shield issues are decided before trial, so the time to prepare them is now, not the week before jury selection. Our attorneys will review the discovery, identify the evidence an exception may allow, and prepare the motion and witnesses the judge will expect. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 at any hour; we defend clients in Hillsborough, Pinellas, and Pasco Counties from an office two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge may let a jury hear what a child told a parent, a teacher, or an interviewer only after finding, on the record, that the statement is reliable enough to stand in for live testimony. I have argued that question many times since my years as a Major Crimes Unit attorney handling sex crime and child abuse cases. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have tried more than 150 jury trials to verdict. Our attorneys treat the child hearsay hearing as the trial before the trial, because it often decides whether the State has a case at all.

What is child hearsay under Florida law?

Child hearsay is an out-of-court statement by a child, offered to prove that what the child said is true, that Florida allows into evidence under a special exception. Under section 90.803(23), Florida Statutes, the exception covers statements by a child victim “with a physical, mental, emotional, or developmental age of 17 or less” describing child abuse or neglect, sexual abuse, or any unlawful sexual act, contact, intrusion, or penetration. Ordinary hearsay is excluded because the person who made the statement cannot be cross-examined; this exception lets the State use the child’s earlier words anyway, if strict conditions are met.

In practice, child hearsay includes what a child told a parent at bedtime, a teacher at school, a deputy at the scene, and a Child Protection Team interviewer on video. Prosecutors often present several of these statements in a row, so the jury hears the same accusation repeated by three or four adults before the child ever takes the stand. At The Brancato Law Firm, our first step is to list every statement the State intends to use and trace each one back to the first conversation.

When can a child’s statement be used as evidence in Florida?

A child’s out-of-court statement can be used as evidence in Florida only when three requirements are met. The statute also says the statement is inadmissible if “the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness.”

1. Reliability. The judge must find, “in a hearing conducted outside the presence of the jury,” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.”
2. Testimony or corroboration. The child must either testify, or be unavailable as a witness with “other corroborative evidence of the abuse or offense.” Unavailability can include a finding that testifying would cause the child “a substantial likelihood of severe emotional or mental harm.”
3. Notice and findings. The State must notify the defense “no later than 10 days before trial,” with a written statement of what the child said, when, and the circumstances, and the court “shall make specific findings of fact, on the record.”

In State v. Townsend, 635 So. 2d 949 (Fla. 1994), the Florida Supreme Court set the order a trial judge must follow. The judge first decides whether the statement itself is reliable “without regard to corroborating evidence,” and only then asks whether corroboration exists. Corroboration cannot be used to prop up an unreliable statement. Our attorneys hold judges to that order, because prosecutors often argue reliability by pointing to other evidence.

What factors decide whether child hearsay is reliable?

Reliability is decided on the totality of the circumstances, and Townsend lists factors beyond the statute that judges still apply today. Each factor is a line of attack for the defense.

Research supports these concerns. In a review published in Psychological Bulletin in 1993, researchers Stephen Ceci and Maggie Bruck found reliable age differences in children’s suggestibility, while also finding that even very young children can recall much that is forensically relevant (National Criminal Justice Reference Service abstract). That is why the questions asked before a formal interview matter as much as the interview itself. The Brancato Law Firm often works with forensic psychologists who can explain to the judge how suggestive questioning affects a young child’s account.

How many Florida child abuse cases involve sexual abuse?

Sexual abuse is a significant share of Florida’s child maltreatment cases. In 2023, Florida had 22,842 child victims of abuse or neglect, and 13.6 percent of victims experienced sexual abuse, according to the Child Welfare League of America’s 2025 Florida fact sheet. Many of those cases begin with a child’s statement to an adult, which is why section 90.803(23) comes up in so many sex crime and child abuse prosecutions.

Can child hearsay be used if the child does not testify?

Child hearsay can be used when the child does not testify only if the child is legally unavailable and there is corroborating evidence, and even then, a statement given to police or a Child Protection Team may be barred by the Sixth Amendment right to confront witnesses. In State v. Contreras, 979 So. 2d 896 (Fla. 2008), a Child Protection Team coordinator videotaped a child’s interview while a detective in another room fed her questions. The Florida Supreme Court held that the interview was “indistinguishable from an ordinary police interrogation,” so the statement was testimonial. Because the defendant never had a real chance to cross-examine the child, and discovery depositions taken without him present did not count, admitting the video violated his confrontation rights. The Court reversed the capital sexual battery conviction, where the video was the only evidence of penetration.

The lesson is that statements to a Child Protection Team are treated differently from a child’s words to a parent. When the child is not going to testify, our attorneys at The Brancato Law Firm challenge every interview conducted with law enforcement involvement on confrontation grounds, separate from the reliability hearing.

What happens when a child’s interview is not recorded?

When a child’s interview is not recorded, the defense loses the best evidence of how the questions were asked, but the State still must prove reliability through the interviewers’ testimony. In Oliver v. State, 397 So. 3d 104 (Fla. 2d DCA 2024), a Pasco County case, the Pasco County Sheriff’s Office had a standard policy that prohibited recording interviews of child sexual abuse victims. The Second District held there is no statutory or common law duty to record these interviews, and it affirmed because the trial judge made specific findings that the interviewers used open-ended, nonleading questions and that there was no evidence of coaching.

The court also noted that the facts “in another case may not present with safeguards sufficient to mitigate the need for audio or video recording.” That is a local fact that matters to anyone charged in Pasco County. When there is no recording, our attorneys depose every interviewer, request their notes, and press for details the interviewer cannot remember, because a judge cannot make specific reliability findings from a memory that has gaps. In Hillsborough County cases, we compare the interview against the Child Protection Team’s own protocols and the questioning that came before it.

How does our firm challenge child hearsay?

Our firm challenges child hearsay by reconstructing the path of the accusation from the first conversation to the courtroom and showing the judge where it was shaped by adults. Each step below is aimed at the statutory requirement it attacks.

Losing the reliability hearing does not end these arguments. The same inconsistencies, suggestive questions, and motives can be presented to the jury through cross-examination and defense experts, and a judge who admits a statement without the specific findings the statute requires creates an issue for appeal.

Our child hearsay defense results

In one case, a child said that “a rhino came out of Grandpa’s skin,” and the prosecution presented the statement as coded language for sexual abuse. Rocky Brancato’s cross-examination showed the child was describing a literal zoo animal, and evidence of coaching came out at the hearing. The judge excluded the hearsay as unreliable, and the State dismissed all charges.

Past results do not guarantee future outcomes. Each case is unique.

Related evidence issues in child sex cases

Child hearsay rarely stands alone. Prosecutors often pair it with other-acts evidence, medical findings, and limits on what the defense can say about the child. Our guide to whether prior accusations can be used against you in a Florida sex crime case covers when other accusations can come in; our post on how to challenge SANE exam evidence covers the medical side; and our guide to the exceptions to Florida’s rape shield law explains when a child’s prior experiences can come in. Lewd and lascivious charges are defined in section 800.04, Florida Statutes.

What should you do if a child has made an accusation against you?

If a child has made an accusation against you, do not talk to the child, the family, or investigators about it, and contact a defense attorney before any interview. Do not try to get the child to “take it back,” which can lead to a witness tampering charge and will be used as evidence of guilt. If a Child Protection Team or detective has contacted you but no charge has been filed, our representation before charges are filed can put the defense in place while the investigation is still open.

Frequently asked questions about child hearsay in Florida

Can a child’s statement to a parent be used in court in Florida?

Yes, if the judge finds it reliable at a hearing and, when the child does not testify, there is corroborating evidence. The Brancato Law Firm asks the parent at deposition exactly what was said, in what order, and what questions came first, because a parent’s paraphrase is often where the account changed.

How much notice does the State have to give before using child hearsay?

At least 10 days before trial, with a written statement of the child’s statement, when it was made, and the circumstances that the State says show reliability. Our attorneys at The Brancato Law Firm use that notice to identify every statement and demand the hearing well before jury selection.

Is a Child Protection Team interview automatically admissible?

No. It must pass the same reliability hearing, and if the child does not testify, Contreras may bar it as testimonial. The Brancato Law Firm reviews every CPT recording frame by frame for leading questions and law enforcement involvement; our Tampa child abuse defense attorneys handle these hearings regularly.

What if the child is now an adult at trial?

The child’s age when the statement was made is what matters, not the age at trial. The Brancato Law Firm still challenges reliability in older cases, where the passage of time often makes it harder for the State to show how the original statement was obtained.

Can child hearsay be used in a custody dispute case?

Yes, the statute applies in civil and criminal cases, and courts treat a custody fight as a reason to look closely at possible influence on the child. Our attorneys at The Brancato Law Firm gather the family court record to show the judge when and why the accusation surfaced.

Can child sex abuse charges be dropped in Florida?

Yes. When a judge excludes unreliable child hearsay, the State may be left without enough evidence to proceed, and prosecutors can drop the charges. The Brancato Law Firm has obtained dismissals in exactly that situation, as described in our Tampa sex crimes lawyer case results.

Talk to a Tampa defense attorney about child hearsay

The reliability hearing is usually scheduled well before trial, and the work that wins it starts with the first discovery. Our attorneys will identify every statement the State plans to use and build the record to challenge it. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 at any hour; we defend clients in Hillsborough, Pinellas, and Pasco Counties from an office two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you have been falsely accused of a sex crime in Florida, stop talking about the allegation with anyone except a criminal defense attorney. Do not contact the person who made the accusation, directly or through anyone else. Preserve every text, photo, and account exactly as it is. Get a defense attorney involved before you answer a single question from a detective.

Those steps matter because in many Florida sex crime investigations, the accused person’s own words are the evidence the State is missing. Detectives collect those words through interviews pitched as a chance to “clear things up,” through recorded calls placed by the accuser, and through texts, apologies, and conversations with family. The weeks before charges are filed are also when a defense team can do the most.

At The Brancato Law Firm, sex crime cases are a core part of our major crimes practice. Rocky Brancato spent years in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, where he handled only sex offense and child abuse cases, and later oversaw a staff of over 100 attorneys as the office’s Chief Operations Officer. This guide covers what we tell people in the first hours after an allegation: what to do, what not to say, and what a defense team does while the State is still deciding whether to file charges.

What Counts as Being “Falsely Accused” of a Sex Crime?

People use “falsely accused” to describe three different situations:

• A fabricated allegation. The event described never happened.
• Mistaken identity. Something happened to the accuser, but you were not the person involved.
• A consensual encounter later described as nonconsensual. You and the other person agree something happened, but not on whether it was consensual.

The steps in this guide are the same in all three. You do not need to prove your innocence to anyone right now. Trying to prove it on your own is where a lot of the damage gets done. If you were drinking and are unsure about parts of the night, the same steps apply, and that uncertainty is one more reason to describe the night to no one but your lawyer.

Each situation calls for a different defense once a case is underway. Our guide to sex crime defenses in Florida walks through them, and our article on the consent defense covers disputes over consent specifically.

What to Do If You’re Accused of a Sex Crime in Florida

The urge to explain yourself will be strong, especially if you know you did nothing wrong. Almost every step below comes down to holding off on that explanation until you have a lawyer.

1. Stop discussing the allegation. That includes the accuser, friends, family, coworkers, a new partner, and anyone online. Your conversations with your defense attorney are privileged. Most other conversations are not.
2. Invoke your rights out loud if police contact you. Use the exact words in the next section, then stop talking. Staying quiet without saying the words is not enough.
3. Hire a criminal defense attorney before any interview. Your attorney becomes the detective’s point of contact. If a detective left a card or a voicemail, give it to your lawyer instead of calling back yourself.
4. Do not contact the accuser. Do not apologize, explain, or ask why. Do not send a message through a friend, a relative, or social media. If the accuser contacts you, do not engage, and tell your attorney.
5. Preserve everything. Keep every text, DM, photo, call log, dating app conversation, and account. Do not delete anything, reset your phone, or replace it. Messages that look bad out of context are often the same ones that show the context.
6. Write down what you remember, for your attorney only. Note dates, places, who was present, and anything that shows where you were, such as receipts, rideshare records, or location history. Address the notes to your lawyer and share them with no one else.
7. Leave the witnesses to your defense team. Make a list of people who may know something. Do not interview them yourself or ask anyone to back up your version of events. Your defense team can interview them independently.
8. Follow every release condition exactly. If you were arrested and released, a no-contact order or other condition applies until a judge changes it.
9. Stay off social media about the allegation. No posts, no vague status updates, and no deleted content.

What to Say to a Detective, Word for Word

If a detective calls, knocks on your door, or asks you to come to the station, say this:

“I am going to remain silent. I want a lawyer, and I will not answer any questions without my lawyer present.”

Then stop talking. Do not add an explanation, a denial, or small talk. Take the detective’s contact information and give it to your attorney.

The exact words matter because the law on silence and counsel is narrower than most people assume. In State v. Horwitz, the Florida Supreme Court held that the State cannot use a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt when the defendant does not testify. That protection has limits. Silence can still be used to challenge your credibility if you testify, and under federal law, the Fifth Amendment generally protects silence only when you expressly invoke it.

A vague request for a lawyer can fail too. Under Davis v. United States, a suspect who has already waived Miranda rights must clearly ask for an attorney before police are required to stop. Florida adopted that rule in State v. Owen and applied it to any equivocal assertion of a Miranda right. “Maybe I should talk to a lawyer” is not enough. Say it plainly, and do not keep the conversation going after you say it.

The same script applies to a phone call and to a detective who says you are “not under arrest” and just has “a few questions.”

What Not to Say When You’re Accused of a Sex Crime

Innocent people say things that sound harmless in the moment and read very differently in a police report or on a recorded call. These are some of the most common:

What Not to Say to the Detective

Do not accept the invitation to “come in and clear it up.” An interview is how a detective gathers statements, and any statement you give to explain yourself is one the State can use.

Detectives are also allowed to say things that are not true. In Florida, an officer can tell you that your DNA was found or that a friend already gave a statement when neither is true. In State v. Cayward, a case from the Second District Court of Appeal, which covers Hillsborough, Pinellas, and Pasco Counties, the court upheld the suppression of a confession police obtained after fabricating lab reports in a child sexual assault and homicide investigation. The court drew the line at manufactured documents, though. Verbal deception counts as one factor in whether a confession was voluntary. It does not make a confession inadmissible on its own.

Rocky Brancato is a former police academy instructor who trained officers on criminal procedure and courtroom testimony. We know how officers are taught to question suspects, and we have seen how often innocent people talk themselves into trouble. Research on police-induced confessions points the same way. A 2010 white paper in Law and Human Behavior identified innocence itself as a risk factor, because innocent people tend to waive their rights on the belief that the truth will protect them. A 2025 update from the same researchers documents how rarely Miranda warnings work as a safeguard in practice.

What Not to Say to the Accuser (Including Controlled Calls and Texts)

Assume that any call, text, or message from the accuser after an allegation is being recorded, and that a detective may be in the room. Florida is an all-party consent state for recordings, but § 934.03(2)(c) makes an exception for recordings made by police or by a person acting at their direction. That is how a controlled call works. The accuser places the call, the detective records it, and you do not know.

Controlled calls often open with a line that invites you to acknowledge something. In Carter v. State, a Florida appellate case, the recorded call opened with the complainant saying they could not get over what had happened between them. That call was played for the jury. The defendant’s later denials to police were not, because the court held the rule of completeness did not require it. One apology or vague answer on a call like that can outweigh everything you say afterward.

Defense attorneys can sometimes limit what a jury hears. In Woolman v. State, the Second District reversed convictions in part because most of a recorded controlled call was highly prejudicial and had little relevance to the charges. That challenge comes after the call exists, though. The better outcome is a call that contains nothing useful.

If the accuser calls or texts, do not respond. If you have already picked up, do not discuss the allegation. End the conversation and tell your attorney.

What Not to Say to Friends, Family, and Coworkers

Anyone you talk to about the allegation can be interviewed by a detective and called as a witness. Conversations with parents, friends, coworkers, and new partners generally are not privileged the way your conversations with your lawyer are.

Do not ask anyone to contact the accuser for you, pass along a message, or find out what the accuser is saying. That can violate a no-contact order and can look like an attempt to influence a witness. If people ask, a short answer is enough: “I’ve been told not to discuss it, and my attorney is handling it.”

What Not to Say to Your Employer or Licensing Board

Some licensed professionals have to report, and the rules differ by license.

• Teachers and educators. Rule 6A-10.081 of the Florida Administrative Code, as posted by the Florida Department of Education, requires educators to self-report an arrest for certain offenses within 48 hours.
• Nurses and other health care licensees. Under § 456.072(1)(x), the duty to report is triggered by a conviction, finding of guilt, or no contest plea, not by an arrest. The report is due within 30 days.
• CDL holders and other licensed workers. Reporting duties depend on the license and the employer. Check the requirement with your attorney before saying anything.

In every case, report exactly what the rule requires, in wording your attorney drafts, and nothing more. The report should be a bare notice. It is not the place to explain what happened, and neither is a conversation with HR.

What Not to Say on Social Media

Posts, stories, comments, and DMs are all statements, and screenshots outlast the accounts they came from. Do not post about the allegation, the accuser, or your side of the story, even in vague terms. Do not delete old content either, for the reasons covered in the next section.

What Not to Say at an Injunction Hearing or in Family Court

An accuser can petition for a sexual violence injunction under § 784.046 whether or not criminal charges were filed, reduced, or dismissed. The injunction case is civil, and a civil injunction by itself does not mean you will be charged. Many of these petitions grow out of the same incident as a criminal investigation, though, and anything you say at the hearing is sworn and recorded. That testimony can surface in the criminal case.

The same is true of testimony in a divorce, a custody case, or a dependency case. Do not walk into any of these hearings without your defense attorney helping decide whether and how you testify.

What Not to Do: Actions That Can Create New Charges

Some of the most natural reactions to a false accusation are separate crimes in Florida. Each one gives the State a new case, often an easier one to prove than the original allegation.

People often assume they can record a call because it is legal in other states. Florida requires the consent of every party. A secret recording can lead to a felony charge against you while producing evidence a court will not hear.

A no-contact order has one exception that matters here. The statute allows the defendant’s attorney to communicate with the protected person for lawful purposes. Every other channel, including a mutual friend, is off limits.

Should You Take a Polygraph or Go In to “Give Your Side”?

In Florida, polygraph results are inadmissible unless both sides sign a written stipulation, under Davis v. State (Fla. 1988) and related cases. The real risk in a police polygraph offer is the questioning that comes with it. The exam includes interviews before and after the test, and those conversations are where people explain, elaborate, and say things a detective can use.

The invitation to “come in and give your side” works the same way. The detective sets the time, the room, and the questions. If presenting your side ever makes strategic sense, your attorney can do it through a controlled submission to the prosecutor, which is covered below.

A request for a voluntary DNA swab deserves the same caution. Under § 943.325, anyone arrested for a felony in Florida gives a DNA sample at booking. Whether to provide one voluntarily before that point is a decision to make with your lawyer.

What If You Already Talked to the Police?

It is never too late to stop. You can invoke your rights at any point, including in the middle of an interview or after one is over. Do not call the detective back to correct or add to what you said.

An attorney can review what you already said and how the interview was conducted. That review looks at whether Miranda warnings were given and honored, whether a clear request for a lawyer was ignored, and whether the tactics used crossed a legal line. Our article on false confessions in sex crime cases explains how those statements are challenged.

What a Defense Attorney Does Before Charges Are Filed

The period between an allegation and the State Attorney’s filing decision is often the most important stage of a sex crime case. We call the work done in this window pre-file advocacy. In a sex crime investigation, it typically includes:

• Acting as the point of contact with the detective, so you are never alone in an interview room
• Interviewing witnesses independently, before memories fade or stories shift
• Preserving favorable evidence, such as location data, messages, receipts, and video that may be overwritten
• Retaining forensic experts early when the evidence calls for it, including DNA analysts, forensic pathologists, digital forensic examiners, and psychologists
• Presenting evidence, witness statements, and context to the detective and the prosecutor before a charging decision is made

Rocky Brancato described this work in his book, How to Choose a Major Crimes Attorney:

“And often, the best outcomes happen quietly. In many cases, experienced attorneys can meet with prosecutors early and present the flaws in the case before charges are even filed. That kind of outcome never makes the news, but it changes lives.”

Early forensic scrutiny can also change a case that looks settled. In a cold-hit DNA case, the State presented a CODIS match in a sexual battery case from eight years earlier. Our defense team subpoenaed the lab’s bench notes, obtained the raw electronic data, and retained an independent geneticist, who found that the State’s analyst had misread an allele at a critical location. The DNA did not match at the required threshold, and the prosecutor dismissed the case. Each case is unique. Past results do not guarantee future outcomes.

Why a Detective May Call Years Later

Many sex crime allegations have no filing deadline in Florida, so there is often nothing pushing the State to decide quickly. The time limits under § 775.15 include:

A call from a detective about an event from years ago deserves the same response as one about last weekend.

When the Allegation Involves DCF, a School, or a Licensing Board

Sex crime allegations often come with a second proceeding that runs alongside the criminal investigation. That can be a DCF investigation, a school disciplinary or Title IX process, a licensing board inquiry, or the injunction and family court hearings covered above. Sworn or recorded statements in any of them can reach the criminal case. One defense attorney should coordinate all of them, so nothing you say in one setting undercuts your defense in another.

Allegations Involving a Child: DCF and Child Protection Teams

When an allegation involves a child, a DCF investigation is effectively a law enforcement investigation. Under § 39.301, DCF must forward allegations of criminal conduct, including suspected sexual abuse, to local law enforcement, with narrow exceptions, and the two agencies can respond jointly. DCF investigators must tell you that you have the right to your own attorney and how the information you give may be used. Take that warning at face value.

Every report alleging sexual abuse goes to a Child Protection Team, which may conduct a forensic interview of the child. Those teams can include law enforcement representatives, and their records can be shared with the State Attorney. A child’s recorded interview may be played at trial under the child hearsay exception, but only after a reliability hearing and specific findings by the judge. Our guide to child hearsay explains how that hearing works.

How a child is questioned shapes what the child says. Rocky Brancato has presented to Hillsborough County Public Schools on police interrogation of children, and our defense team examines how each forensic interview was conducted, starting with the first question.

Allegations involving a child sometimes arise in the middle of a divorce or custody dispute. If you are a parent in that situation, do not question your child about the allegation or discuss it with them. Do not respond to the other parent about it except through counsel.

College Students Facing a School Process

A student accused of sexual misconduct may face a school investigation and a criminal investigation at the same time. Written statements and hearing testimony in the school process can be obtained by prosecutors. Have a criminal defense attorney review anything before you submit it or testify.

Can You Sue the Accuser or Press Charges for a False Report?

That question comes later, if at all. While the criminal investigation is open, any step against the accuser can look like retaliation, and contact aimed at discouraging cooperation can itself be charged under Florida’s witness harassment law.

Florida does criminalize false reports. Under § 837.05, knowingly giving police false information about a crime is a first-degree misdemeanor, and a false report of a capital felony is a third-degree felony. The State decides whether to bring that charge, not the person who was accused. Florida’s sexual battery statute also has a narrow false-report provision, but it covers only accusations against certain authority figures, such as law enforcement and correctional officers. It is not a general false-report crime.

Our firm handles criminal defense only. Civil claims such as defamation belong with a civil attorney, and that conversation makes the most sense after the criminal case is resolved.

What’s at Stake in a Florida Sex Crime Case

The penalties are serious enough that your first decisions carry real weight:

• Sexual battery on an adult without consent, without force likely to cause serious injury, is a second-degree felony under § 794.011(5)(b). Aggravating circumstances or a younger complainant raise the charge to a first-degree, life, or capital felony.
• Lewd or lascivious molestation by an adult of a child under 12 is a life felony under § 800.04(5)(b). The child’s consent is not a defense to any offense in that statute.
• Registration. Every sexual battery offense in § 794.011 carries sex offender registration, and for an adult conviction that registration is for life. Florida’s 25-year removal petition under § 943.0435(11) is not available to a person convicted as an adult under § 794.011. A no contest plea counts as a conviction for registration purposes even when adjudication is withheld.

Registration cannot be undone after the fact, which is why the time to act is while the case is still open. For more detail, see our articles on sexual battery in Florida and sex offender registration.

Frequently Asked Questions

Will I be arrested if someone accuses me of a sex crime?

Not always, and not always right away. Many investigations begin with a phone call, a business card at your door, or a request to come in, and the arrest decision comes later. Some allegations lead to an arrest quickly. Either way, the steps in this guide are the same.

What if the detective only wants to talk on the phone?

A phone call with a detective is an interview, and you should assume it is recorded. Use the same words you would use in person, then give the detective your attorney’s contact information.

Can I talk to my accuser to clear things up?

No. Any contact can be recorded as a controlled call, can violate a no-contact order, and can be charged as witness tampering if it looks like an attempt to change the accuser’s account. Your attorney is the only person who should communicate with the accuser’s side.

Can I record my accuser to prove they’re lying?

No. Florida requires the consent of everyone on the call, and secretly recording a conversation is a third-degree felony. The recording is also generally inadmissible, so it cannot help your case.

Should I take a polygraph if police offer one?

Not without your attorney’s advice. Polygraph results are inadmissible in Florida without a written stipulation from both sides, and the questioning before and after the test is where the real risk lies.

How long can police wait before charging me?

For many sex offenses, there is no deadline. Sexual battery involving a victim 16 or older that was not reported within 72 hours generally must be prosecuted within 8 years, while allegations involving minors often have no limit.

Do I need a lawyer if I haven’t been charged yet?

Yes. The period before charges are filed is when a defense team can interview witnesses, preserve evidence, and present information to the prosecutor before a decision is made. Waiting until after an arrest gives up that window.

Talk to a Tampa Sex Crimes Defense Team

If a detective has contacted you, left a card, or asked you to come in, or you have learned that an allegation has been made, call us before you respond. We offer free, confidential consultations and are available 24/7 for arrest emergencies. Our Tampa sex crimes defense team defends clients across Hillsborough, Pinellas, and Pasco Counties, and every defense is built to the standards Rocky Brancato developed over more than 150 jury trials to verdict. Rocky holds an AV Preeminent rating and meets the Florida Rule of Criminal Procedure 3.112 qualifications to defend capital (death penalty) cases, the most serious criminal cases there are.

Call (813) 727-7159 or contact us online for a confidential consultation.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I spent years in a Major Crimes Unit handling sex crimes, homicide, and child abuse cases, served as chief operating officer of the Hillsborough County Public Defender’s Office overseeing a staff of over 100, and have tried more than 150 cases to a jury verdict. Today our attorneys represent people under investigation for sex offenses in Hillsborough, Pinellas, and Pasco Counties, often before any charge is filed.

What Is the “I Am Jane Doe” Trend?

“I Am Jane Doe” is a social media movement that started in late September 2026, after a former Cornell University student filed a lawsuit as “Jane Doe” against the university, a fraternity, and seven men she says assaulted her in 2024. Supporters began posting “I am Jane Doe” to protect her identity and show solidarity, and many shared their own experiences of sexual assault (Associated Press via News4Jax, “‘Jane Doe’ solidarity posts flood social media after Cornell rape lawsuit”). New York’s attorney general has since reopened the criminal investigation into the Cornell allegations (Philadelphia Inquirer, “Center City crowd rallies in solidarity with Jane Doe”).

Some posts go further than solidarity. They name the person the poster says assaulted them, attach a photo or a link to that person’s profile, and identify a city or an employer. Commenters then urge the poster to call the police or promise to spread the name.

Our firm respects people who come forward, and many of these posts describe real harm. This article is written for the person on the other side of the screen: someone who was named, who may believe the encounter was consensual or that the post is false or mistaken, and who now has to protect their freedom, career, and reputation.

Can a Social Media Post Lead to Criminal Charges in Florida?

Yes. A post is not a criminal charge, but it can lead to a police report, and a sworn statement from the accuser is enough for detectives to open a sexual battery investigation. Under section 794.022(1), Florida Statutes, “the testimony of the victim need not be corroborated” in a sexual battery prosecution. No DNA, medical exam, or eyewitness is legally required.

Delayed reports are common. In 2024, only 24% of rape or sexual assault victimizations were reported to police, down from 46% in 2023, according to the Bureau of Justice Statistics’ Criminal Victimization, 2024 report. Most incidents never reach law enforcement when they happen, which is why detectives in Tampa Bay regularly receive reports months or years later. A viral post is one way that happens: friends and strangers in the comments encourage the poster to report, and some do.

How Long Does Florida Have to Charge Sexual Battery?

Florida generally has 8 years from the date of the incident to file a first- or second-degree sexual battery charge when the accuser was 16 or older, under section 775.15(14)(b), Florida Statutes. If the incident was reported to law enforcement within 72 hours, there is no time limit at all. Many people assume a five- or six-year-old allegation is too old to prosecute. In Florida, it usually is not.

The defamation deadline in the last row comes from section 95.11(5)(h) and section 770.07. Our firm’s guide to Florida’s criminal statute of limitations covers deadlines for other offenses.

What Charge Could a Social Media Accusation Describe?

The words in the post matter, because Florida grades sexual battery by its circumstances. Sexual battery on an adult without consent is a second-degree felony punishable by up to 15 years in prison under section 794.011(5)(b) and section 775.082. A claim that the person was unconscious, asleep, or passed out points to sexual battery on a physically helpless person, a first-degree felony punishable by up to 30 years.

Florida law defines “consent” as “intelligent, knowing, and voluntary consent,” and it says a failure to resist is not consent (§ 794.011(1)(a)). “Physically helpless” means “unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act” (§ 794.011(1)(f)). Drinking alone does not meet Florida’s definition of “mentally incapacitated,” which requires a substance given without the person’s consent (§ 794.011(1)(d)). Heavy drinking still becomes central evidence on consent and on whether someone was physically helpless. Our article on what sexual battery is in Florida explains the elements in more detail.

What Happens First If the Accuser Goes to the Police?

In our experience, the first step detectives take on a delayed sexual battery report is usually a recorded controlled call. A visit to your door typically comes later. Detectives with the Hillsborough County Sheriff’s Office, Tampa Police Department, and Pasco Sheriff’s Office commonly have the accuser call or text the named person while they record. The accuser may say they have been “thinking about that night” or that “you really hurt me.” The goal is an apology, an admission, or an explanation that fills the gaps in the accuser’s account.

Florida is generally an all-party consent state for recording calls, but these recordings are lawful. Section 934.03(2)(c), Florida Statutes allows “a person acting under the direction of an investigative or law enforcement officer” to record a call with one party’s consent to obtain evidence of a crime. Our article on whether it is illegal to secretly record someone in Florida covers the rule and its exceptions.

Researchers have studied this tactic. In “On the Synergy Between Pretext Caller and Police Interrogator,” a chapter in Criminal Investigations of Sexual Offenses (Springer, 2021), psychologist Deborah Davis and interrogation scholar Richard Leo, with co-authors, describe pretext calls as a way police use alleged victims as “surrogate interrogators” to elicit confessions, and they examine how suspects respond to those calls and how observers judge admissions made on them. Our attorneys see the same pattern: people who would never explain themselves to a detective will often try to explain themselves to the accuser.

The investigating agency is the one where the incident happened, not where you live now. If the incident happened in St. Petersburg and you now live in Tampa, expect the St. Petersburg Police Department to handle it.

Will Police Try to Talk to You, and Should You Answer?

Expect police to contact you, and do not give a statement. Once a report is made, detectives will almost always try to reach the named person, by phone, with a business card left at the door, or in person at home or work with a request to “clear things up.” Florida prosecutors can file a delayed sexual battery case on the accuser’s word alone, but detectives want stronger evidence first, and the most convincing source of that evidence is you.

A statement can make the case against you much worse in three ways:

1. An admission. Even a partial one, such as “we had both been drinking” or “I thought she was fine with it,” can confirm the sexual contact and the circumstances the accuser described.
2. Contradictory statements. Denying any contact and later saying it was consensual, or misremembering details from years ago, will be presented to a jury as lying.
3. A trap. Detectives may claim they already have evidence they do not have. In Frazier v. Cupp, 394 U.S. 731 (1969), an officer falsely told a murder suspect that his companion had already confessed. The U.S. Supreme Court held that the lie, while relevant, did not by itself make the suspect’s confession inadmissible.

In our experience, sex crimes detectives have much more advanced interview and interrogation training than patrol officers, and they plan the conversation before it starts. A person who believes they did nothing wrong is often the easiest person to interview, because they want to explain. In these cases, the only good statement is no statement.

What Should You Say If the Accuser or a Detective Contacts You?

Keep it short, polite, and final:

• If the accuser calls: say “I’m going to contact my attorney,” then hang up. Do not deny, explain, apologize, or argue. A denial can hurt you as much as an admission if later facts contradict it.
• If the accuser texts or messages you: do not reply. Save the message and give it to your attorney.
• If a detective calls or comes by: say “I’d like to speak with my attorney before I answer any questions.” Take the detective’s card, and give it to your attorney.

Should You Send a Cease-and-Desist Letter or Sue for Defamation?

Whether to send a letter or file a lawsuit is a strategic decision for your criminal defense attorney, and in most cases the answer is “not yet.” A false accusation of a crime is defamation per se in Florida, and you have two years from first publication to sue, so waiting rarely costs you the claim. Acting too early can create the publicity and the police report you are trying to prevent.

1. A demand letter often gets posted. A screenshot captioned “his lawyer is threatening me” spreads farther than the original post and gives commenters a new reason to push for a report.
2. The accuser may have constitutional protection. Article I, section 16 of the Florida Constitution, known as Marsy’s Law, gives a crime victim the right “to be free from intimidation, harassment, and abuse” beginning “at the time of his or her victimization.” Florida’s witness tampering law, section 914.22, makes it a crime to threaten someone with intent to hinder a report to police, and no case needs to be pending. A properly drafted defamation demand is lawful, but prosecutors will scrutinize any contact from the accused’s side.
3. Suing means testifying. In Minor v. Minor, 240 So. 2d 301 (Fla. 1970), a wife who filed for divorce refused to answer deposition questions about her husband’s adultery claim by invoking the Fifth Amendment. The Florida Supreme Court approved an order requiring her to answer or have her case dismissed. A person who files a defamation suit over a sexual assault post can expect to be deposed under oath about the night in question, and that testimony exists while the 8-year criminal window is still open.

Do not send a letter yourself, and do not hire a civil lawyer to send one, until your criminal defense attorney has weighed the timing. The right call depends on the post, the facts, and your criminal exposure, and it should be made by counsel who can see all three. At our firm, that decision is part of the defense strategy from the first meeting.

What Did a 2026 Florida Appeals Court Say About False Abuse Accusations?

A Florida appeals court confirmed in January 2026 that falsely accusing someone of a crime is defamation per se, which allows punitive damages without proof of a specific financial loss. In Roque v. Swezy, No. 3D25-0235 (Fla. 3d DCA Jan. 21, 2026), Elizabeth Roque sued her former partner of ten years, Lewis Swezy, in Miami-Dade County, alleging assault and battery. Swezy counterclaimed for defamation, alleging she told employees at his company that he abused her physically and verbally. The Third District Court of Appeal allowed him to seek punitive damages and wrote: “Falsely implicating another in the commission of a crime, particularly one of moral turpitude, is actionable per se.”

The same lawsuit shows how these fights unfold. In an earlier ruling, Roque v. Swezy, 390 So. 3d 193 (Fla. 3d DCA 2024), the court quashed an order requiring a forensic copy of Roque’s entire cellphone, holding that the party seeking it must first show a real need, such as evidence that data was being destroyed, and that no less intrusive option exists. By 2026, the case had produced two appeals, and the abuse allegations remained in dispute.

The lesson for anyone named in a post: Florida’s defamation remedy is strong, and pursuing it turns the lawsuit into a contest over what happened, with discovery running in both directions. Our attorneys weigh that tradeoff before recommending a civil claim.

What Should You Do Right Now If You Were Named in a Post?

Protect the evidence and stay silent. These seven steps come from how our attorneys handle pre-file sex crime investigations:

1. Do not reply, comment, or post about it. Ask friends and family not to defend you online. Every public statement is a statement prosecutors can use.
2. Do not contact the person who posted, directly or through anyone else.
3. Preserve the post. Capture the post, the comments, the poster’s profile, the web address, and the date and time. Posts disappear, and our article on social media evidence in Tampa criminal cases explains why an authenticated capture matters.
4. Preserve your own records. Keep old messages, photos, and accounts. Deactivating an account is different from deleting it. Use the platform’s “download your information” tool to save your message history. Messages exchanged with the accuser after the incident are often the most important evidence in the case.
5. Do not delete anything once you know an investigation may be coming. Destroying records with intent to keep them from an investigation that is “pending or about to be instituted” is a third-degree felony under section 918.13.
6. Do not answer questions from police or the accuser. Use the short responses above, then call your attorney.
7. Retain a sex crimes attorney before any charge is filed.

Can an Accusation Cost You Your Job or Professional License?

An accusation alone can cost you a job, even if no charge is ever filed. Most Florida employment is at will, and an employer that learns of a public sexual assault accusation may look for a reason to let the employee go, because the accusation is bad for business and the employer may fear greater liability if it keeps the person on and another complaint follows. People in healthcare, education, and other client-facing work face this risk most.

A professional license is a separate question. An accusation by itself usually does not trigger a reporting duty to a licensing board, but a plea or conviction does. A Florida nurse, for example, must report in writing to the licensing board within 30 days after being convicted or found guilty of, or pleading no contest to, any crime in any jurisdiction, under section 456.072(1)(x). That rule covers nurses and other health care practitioners. Other boards have their own rules. Our attorneys review those rules with licensed clients and plan what, if anything, to say to an employer or a board before the client says it.

Why Hire a Sex Crimes Lawyer Before Charges Are Filed?

Pre-file representation lets your attorney influence the investigation before the State Attorney’s Office decides whether to file charges. Once detectives know you have counsel, the controlled call and the “come tell us your side” interview stop working as shortcuts. Our attorneys serve as the point of contact with the detective, gather and preserve evidence, interview witnesses, and present information to prosecutors when doing so helps the client. Visit our Tampa sex crimes lawyer page to see how we defend these cases, and our page on consent defenses in sexual offense cases for how consent is litigated.

Past results do not guarantee future outcomes. See more on our case results page.

How Quickly Can Police Act After a Post Goes Viral?

There is no fixed timeline. A report can come within days of a post or years later, anywhere inside Florida’s 8-year window. Police can arrest on a sworn statement alone if they find probable cause. In our experience with delayed reports in Hillsborough and Pasco Counties, detectives usually try a controlled call or a voluntary interview first, because a statement from the accused is the evidence they most often lack. The time to hire a lawyer is before that first call or knock on the door.

Frequently Asked Questions

Can I get an “I Am Jane Doe” post about me taken down?

Sometimes. You can report the post through the platform’s harassment or privacy reporting tools, but each platform applies its own policies, and removal is not guaranteed. A lawyer’s demand letter can also work, though it carries the risks described above. At The Brancato Law Firm, any takedown effort is a strategic decision made by counsel after weighing how it affects the criminal side of the case.

Will police arrest me without talking to me first?

They can. Florida does not require corroboration of the accuser’s testimony in a sexual battery case under section 794.022(1), so a sworn statement can supply probable cause. In our experience, detectives handling a delayed report usually attempt a controlled call or an interview before seeking an arrest.

What if we were both drinking and I believed the encounter was consensual?

Alcohol does not automatically make sex nonconsensual under Florida law, but it is often the central fact in the case. Prosecutors focus on whether the person could give “intelligent, knowing, and voluntary” consent and whether the person was physically helpless (§ 794.011(1)). Do not explain your side to the accuser, online, or to police; explain it to your attorney.

Does Florida’s 8-year limit apply if the incident happened in another state?

No. Section 775.15 governs offenses prosecuted in Florida. An incident in another state is controlled by that state’s time limits, which can be shorter or longer. Our attorneys can identify which state’s law applies and coordinate with local counsel if needed.

Should I delete my social media accounts?

No. Deleting posts, messages, or accounts after you learn of a possible investigation can be charged as evidence tampering under section 918.13 and can destroy messages that help you. You can tighten privacy settings or deactivate an account, but talk to your attorney first.

How do I hire The Brancato Law Firm before charges are filed?

Call The Brancato Law Firm at (813) 727-7159 to schedule a consultation. Our attorneys represent people under investigation for sex offenses in Hillsborough, Pinellas, and Pasco Counties and can step in as your point of contact with detectives.

Talk to a Tampa Sex Crimes Defense Attorney Before Detectives Call

If your name appeared in an “I Am Jane Doe” post or any online accusation, the attorneys of The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can help you prepare before a detective or a recorded call reaches you. Call (813) 727-7159 now; the first contact in these investigations often comes without warning. For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

At The Brancato Law Firm, our defense team has spent years in the courtroom handling sex offense and child abuse cases at the highest level. Rocky Brancato built his career in the Hillsborough County Public Defender’s Major Crimes Unit, where he handled only these cases, and later oversaw a staff of over 100 attorneys as COO of the office. That experience shapes how we approach every sex crime defense: through investigation, forensic science, and procedural strategy.

This guide covers the major defense categories available in Florida sex crime cases. Each section explains what the defense requires, where it applies under Florida law, and what a defense team actually does to build it. Where we have published deeper guides on specific topics, we link to them so you can keep reading.

Pre-File Advocacy: Why the Defense Starts Before Charges

Many sex crime cases are won or lost before charges are ever filed. The window between an arrest or investigation and the State Attorney’s filing decision is the single most consequential phase of many cases, and it is the phase most often wasted.

Florida law permits a prosecutor to file an information without leave of court. There is no statewide statute or rule that gives a suspect a formal right to demand a pre-file meeting with the State Attorney. Pre-file advocacy is therefore an exercise of investigation and persuasion, not a motion-based defense.

In practice, that work breaks down into several steps:

• Preserve evidence immediately. Surveillance footage gets overwritten. Apps delete messages. Witnesses’ memories fade. Location providers have limited retention windows. The defense team’s first job is identifying and preserving everything that could matter before it disappears.
  
• Investigate independently. A private investigator builds a timeline and interviews witnesses. A DNA expert examines raw laboratory data. A forensic pathologist reviews medical findings. A digital forensics specialist evaluates actual device artifacts rather than relying on a police summary.
  
• Make a strategic disclosure. A targeted pre-file submission can demonstrate an impossible timeline, an alibi supported by independent records, consensual communications between the parties, a flawed DNA interpretation, an alternative medical explanation, or a fatal statute-of-limitations problem. The decision about what to disclose is case-specific because pre-file advocacy can also reveal defense strategy prematurely.
  
• Request a no-file decision. The goal is not always to prove every trial defense in advance. Sometimes it is enough to demonstrate that the available evidence does not support the contemplated charge.
  

We have prevented charges from being filed in multiple sex crime investigations through this process. (Each case is unique. Past results do not guarantee future outcomes.) Pre-file advocacy is threaded throughout the defenses below because many of them are more effective when the work begins before filing, not after.

Consent as a Defense in Adult Sexual Battery Cases

In many adult sexual battery prosecutions, the central question is whether the sexual act occurred without the victim’s consent. Under Florida Statute 794.011, consent means intelligent, knowing, and voluntary consent. The statute specifically states that a lack of physical resistance does not equal consent. It also defines circumstances where a person’s condition (mental incapacitation, physical helplessness, unconsciousness) makes purported consent legally ineffective.

A consent defense is strongest where the charged offense actually turns on lack of consent and the evidence permits a reasonable inference of voluntary agreement. Building it requires reconstructing what happened before, during, and immediately after the encounter. That means gathering contemporaneous texts, dating-app messages, call records, photographs, location history, witness accounts of the parties’ interactions, and any subsequent communications.

Where an accuser’s account has changed over time, Florida Statute 90.608 expressly permits credibility challenges through prior inconsistent statements, evidence of bias, defects in the ability or opportunity to perceive or remember, and contradictory testimony from other witnesses.

What consent does NOT cover: Consent is expressly unavailable in important categories of cases involving minors. Under Section 800.04, the victim’s consent is not a defense to lewd or lascivious offenses. That statute also eliminates reliance on ignorance of age, the minor’s misrepresentation of age, or a bona fide belief that the victim was older. Consent applies to specific adult sexual battery charges, not to sex offenses generally.

False Allegations and Credibility Challenges

False allegations do occur. Accusations can be driven by custody disputes, divorce proceedings, breakups, financial conflicts, or personal vendettas. But the defense cannot simply assert “the accusation is false” and expect that to carry the day. The question is always whether objective evidence supports the theory.

A credibility defense built on alleged fabrication requires:

• Evidence of the accuser’s motive (custody filings, divorce records, financial disputes, prior threats)
  
• Objective evidence contradicting the accusation (full message threads, call logs, social media records, location history, witness statements, detailed chronology)
  
• Prior inconsistent statements or changes in the accuser’s account
  
• Gaps between the allegation and the physical, forensic, or digital evidence
  

Section 90.608 makes bias and prior inconsistent statements legitimate impeachment tools. Section 90.614 governs how those prior statements get used at trial. Extrinsic evidence of a prior inconsistent statement is generally inadmissible unless the witness first has an opportunity to explain or deny it. The defense is not limited to arguing the accuser is lying. It can also demonstrate that the accuser’s perception, memory, or account is unreliable.

One important note on the data: credible research estimates that demonstrably false reports of sexual assault fall in the range of roughly 2 to 10 percent, and a 2026 scoping review of child sexual abuse allegations in custody proceedings found that deliberately false allegations appeared rare. An “unsubstantiated” allegation is not the same thing as a “fabricated” allegation. When a defense theory involves fabrication, it must be supported by case-specific evidence, not by statistics.

Our article on false confessions covers a related issue: how interrogation tactics can produce unreliable statements even from innocent people.

Alibi and Mistaken Identity

An alibi defense places the accused somewhere other than the scene of the alleged crime at the time it allegedly occurred. Florida Rule of Criminal Procedure 3.200 creates a formal notice-of-alibi process. After a prosecutorial demand specifying the place, date, and time of the alleged offense, a defendant intending to offer alibi evidence must serve notice at least 10 days before trial, with reciprocal disclosure for alibi witnesses.

An effective alibi is rarely built on a single data point. The strongest presentations reconcile several independent records with a precise timeline: surveillance video, toll or transaction records, employer records, access logs, photographs, phone records, and GPS or location data. Digital records require forensic examination rather than face-value acceptance.

Mistaken identity is related but distinct. Where the accused is identified by an eyewitness, the defense can challenge the witness’s opportunity and ability to observe, the conditions under which the identification was made, the reliability of the identification procedure, and whether contradictory witnesses, surveillance, or DNA exclusion evidence points to someone else.

At the pre-file stage, alibi and identity evidence is especially time-sensitive. Video gets overwritten on fixed schedules. Transaction records have retention limits. Neutral witnesses are easier to locate and interview while their memories are fresh.

Challenging DNA Evidence

A DNA report that says the defendant’s profile “matches” the evidence sample answers a much narrower question than many people assume. According to NIST’s 2024 scientific foundation review of DNA mixture interpretation, modern methods can obtain profiles from very small quantities of biological material, including only a few skin cells. That sensitivity increases the importance of questions about mixtures, contamination, transfer, persistence, low-template effects, and the assumptions behind statistical conclusions.

A DNA result may strongly support a proposition about whose DNA is present without resolving how, when, or why it was deposited. That distinction is significant in cases involving consensual prior contact, shared environments, mixed samples, or trace DNA.

A serious forensic DNA challenge involves obtaining and reviewing:

• Electropherograms and underlying electronic data
  
• Quantitation results and analyst worksheets
  
• Controls, reagent records, and contamination logs
  
• Contributor assumptions and analytical thresholds
  
• Software version and validation materials
  
• Likelihood-ratio propositions and population assumptions
  
• Chain of custody documentation
  

This is where our firm has achieved some of its most significant results. In a cold-hit sexual battery case involving an eight-year-old crime, we subpoenaed the state laboratory’s bench notes, obtained the raw electronic DNA data, and retained an expert geneticist who demonstrated that the state’s analyst had misinterpreted an allele at a critical locus. The DNA did not match at the required threshold. One of the state’s own experts agreed, and the prosecutor dismissed the case entirely. Our client, a combat veteran, was fully exonerated. (Each case is unique. Past results do not guarantee future outcomes.)

Under Florida Statute 90.702, the defense can challenge an expert opinion where the underlying facts are insufficient, the methodology is unreliable, or reliable methodology has been applied unreliably. This framework (often called “Daubert” after the U.S. Supreme Court decision that established it) has been part of Florida law since 2013, when the Legislature rewrote Section 90.702, and was formally adopted as a procedural rule by the Florida Supreme Court in 2019.

For deeper reading, see our forensic science defense page and our DNA evidence defense case study.

Challenging Medical Evidence and SANE Findings

Sexual Assault Nurse Examiner (SANE) findings are frequently treated as definitive evidence of assault. The science tells a different story.

A 2023 systematic review examining over 3,100 participants found that anogenital injury appeared in roughly 48% of sexual assault examinations and in about 31% of consensual sex examinations. More than half of examined sexual assault complainants had no detectable injury. The researchers cautioned that the pooled results could overestimate the distinction, and a higher-quality subgroup showed no statistically significant difference.

The takeaway cuts both ways: injury does not by itself establish non-consent, and the absence of injury does not establish consent or disprove assault.

A defense medical review should examine:

• The timing of the examination relative to the alleged event
  
• The exact location and nature of each finding
  
• Whether findings were photographed
  
• Alternative consensual or non-sexual causes
  
• Normal anatomical variants
  
• Whether the examiner moved from observed “findings” to unsupported opinions about mechanism or consent
  

In a notable April 2026 decision, the Fourth District Court of Appeal held in Henderson v. State that a nurse practitioner who had not examined the complainant could not act as a conduit for another examiner’s report. The substitute witness admitted she had no independent knowledge of the patient or case. The court found her recounting of the clinical injury description was inadmissible hearsay. This is a point we regularly make: a medical defense is not limited to disputing the science. It also asks who performed the examination, who made each observation, what foundation exists, and whether an expert is merely repeating another person’s report.

Read our full guide on SANE nurse evidence in Tampa Bay.

Digital Forensics Defenses

In internet sting cases, child sexual abuse material (CSAM) cases, and any charge built on digital evidence, the defense must separate several propositions that the prosecution often compresses into a single claim.

NIST’s scientific foundation review of digital investigation techniques treats digital forensics as a structured discipline involving preservation, acquisition, examination, analysis, and reporting. The defense team’s job is to evaluate each of those stages rather than taking the prosecution’s summary at face value.

Florida law also imposes special discovery rules for CSAM evidence. Under Section 92.561, the material must remain in government or court custody. The defense and its expert can inspect and examine the evidence at a designated facility, but it cannot simply be copied and sent to the expert’s laboratory. Defense counsel needs to plan expert review logistics early so the examination is not squeezed against trial deadlines.

A 2026 statutory update: Effective July 1, 2026, Florida replaced the statutory term “child pornography” with “child sexual abuse material” (CSAM) in numerous provisions and increased penalties for several offenses under Chapter 2026-20.

For more on internet sting defenses, see our article on vigilante predator catchers in Florida.

Constitutional Challenges: Illegal Searches and Coerced Statements

Search and Seizure

Article I, Section 12 of the Florida Constitution requires that search-and-seizure rights be construed in conformity with the Fourth Amendment as interpreted by the U.S. Supreme Court. In a sex crime case built on a phone, computer, cloud account, or home search, the defense can challenge probable cause, the nexus between the suspected crime and the place searched, the particularity of the warrant, and whether the warrant affidavit contained material falsehoods or omissions.

In State v. Domenech, a Second DCA case arising from a child pornography investigation, the circuit court found false statements in a detective’s warrant affidavit and suppressed the evidence. The Second DCA reversed, holding that even after setting the challenged statements aside, the remaining affidavit content supported probable cause. The case illustrates both the opportunity and the difficulty: a warrant affidavit can contain serious problems and still survive if the remaining content independently supports probable cause. A defense team must map each alleged misstatement, establish the required state of mind (deliberate falsity or reckless disregard, not mere negligence), and reconstruct the affidavit without the tainted material.

Digital cases often present the highest-value suppression opportunities because a single warrant may produce the device, communications, images, search history, and admissions on which the entire prosecution is built.

Statements and Interrogation

In State v. Pastor (Fifth DCA, August 2025), the appellate court addressed post-Miranda statement suppression. It reiterated that once a person in custodial interrogation unequivocally invokes the right to counsel, questioning must stop until counsel is available or the person reinitiates the conversation. The court reversed suppression because it concluded the invocation was not sufficiently unequivocal and, alternatively, that the suspect reinitiated discussion.

A defense review of any interrogation should analyze whether the interaction was custodial, the adequacy of warnings and waiver, whether silence or counsel was invoked, whether reinitiation occurred, and whether the statement was voluntary. Pre-file counsel can also decide whether the client should give any interview at all, which is often the most consequential decision of the entire case.

Entrapment in Internet Sex Sting Operations

“It was a sting” is not the same thing as entrapment. Florida Statute 777.201 uses a subjective framework: entrapment occurs when law enforcement induces or encourages a person to commit a crime through methods that create a substantial risk the crime will be committed by someone not already ready to commit it. The defendant bears the burden of proving entrapment by a preponderance of the evidence.

Merely creating the opportunity to offend is not enough. The defense must show actual inducement: persistent persuasion, fraud, coercive tactics, appeals to sympathy, or escalation after the target expressed reluctance. In State v. Lopez-Garcia (Second DCA, 2022), the court emphasized that giving someone an opportunity to offend does not constitute entrapment and that predisposition is ordinarily a fact question for the jury.

In an internet sex sting case, building an entrapment defense means obtaining the full, unedited communication history and analyzing who first introduced sexual content, how often the accused hesitated or declined, whether law enforcement escalated after reluctance, what inducements were offered, and what the accused did independently.

Read our sex sting defense guide for deeper analysis.

Williams Rule and Prior Bad Acts Evidence

Florida’s rules on prior-act evidence in sex crime cases are broader than many defendants expect. The traditional “Williams Rule” under Section 90.404(2)(a) allows similar-act evidence for purposes like proving motive, intent, identity, or absence of mistake, but not solely to prove bad character.

However, Florida separately enacted much broader provisions for sex offense cases. Section 90.404(2)(b) allows other child-molestation acts to bear on any relevant matter in a qualifying child-molestation prosecution, and Section 90.404(2)(c) does the same with other sexual offenses in qualifying sexual-offense prosecutions.

The defense still has avenues to challenge this evidence:

• Whether the alleged prior act qualifies under the statute
  
• Whether the State provided adequate 10-day pretrial notice
  
• Whether dissimilarity or remoteness reduces probative value
  
• Whether the presentation becomes cumulative or a distracting mini-trial
  
• Whether Section 90.403 requires exclusion because unfair prejudice substantially outweighs probative value
  

Defense investigation of a proposed Williams Rule witness should be nearly as intensive as investigation of the charged allegation itself: original reports, identification history, communications, timing, inconsistencies, and whether similarities are genuine or selectively presented.

For our full analysis, see our article on Williams Rule in sex crimes.

Florida’s Rape Shield Law

Section 794.022 prohibits evidence of specific consensual sexual activity between the complainant and persons other than the accused, bars reputation evidence about prior sexual conduct, and makes arguments based on the complainant’s clothing irrelevant.

The statute does contain defense-relevant exceptions. An in-camera hearing can allow evidence of third-party sexual activity where it could establish an alternative source of semen, pregnancy, injury, or disease. When consent is at issue, a separate narrowly worded exception may apply if a highly similar pattern is shown to be relevant.

These exceptions intersect directly with forensic defense work. When the prosecution infers assault from semen or genital injury, a defense expert can provide the factual foundation needed to make a rape-shield exception legally relevant by identifying a scientifically plausible alternative source of DNA or injury.

An important statutory note: Section 794.022 also states that a sexual battery complainant’s testimony does not require corroboration. The State does not need DNA, physical injuries, or an eyewitness before a case can proceed. Defense strategy must account for this.

Our full guide on Florida’s rape shield law covers the procedural requirements and exceptions in detail.

Child Hearsay Challenges

Under Section 90.803(23), an out-of-court statement by a child concerning abuse or an unlawful sexual act can be admitted only after the court holds a hearing outside the jury’s presence and finds sufficient safeguards of reliability. The statute invites consideration of the child’s age and maturity, the nature and duration of the alleged abuse, the relationship to the alleged offender, and the reliability of both the statement and the child.

A 2024 amendment expanded this provision to cover a child whose physical, mental, emotional, or developmental age is 17 or less.

Defense litigation can target the reliability hearing itself:

• Was the initial disclosure elicited through repeated or suggestive questioning?
  
• Who first brought up the allegation?
  
• Did the child’s account change between versions?
  
• Was age-appropriate language used?
  
• Was the child exposed to adult information about the alleged events?
  
• What was the sequence of family, law enforcement, and forensic interviews?
  
• Were interviewer techniques consistent with accepted protocols?
  
• Was statutory notice provided at least 10 days before trial?
  
• If the child is unavailable, does the required corroborative evidence exist?
  

Unrecorded interviews are not automatically inadmissible. In Oliver v. State (Second DCA, July 2024), the court affirmed child hearsay from unrecorded law enforcement and child protection interviews where the trial court made sufficient reliability findings. The absence of a recording can support a reliability challenge, but it does not by itself result in exclusion. The defense has to connect the problem to the statutory criteria.

For a deeper analysis, see our child hearsay defense guide.

Statute of Limitations in Florida Sex Crimes

Florida’s sex crime limitation rules under Section 775.15 are far more complex than most people realize. The answer depends on the exact offense, the degree at the relevant time, the victim’s age, the date the offense allegedly occurred, the date it was reported, whether any later statutory amendments extended the deadline, whether DNA identification provisions apply, and whether the case was already time-barred before an extension took effect.

A few examples of the current framework:

Section 775.15 repeatedly preserves cases that were already time-barred before a later extension took effect. A limitations defense therefore requires an offense-date-specific analysis, not a glance at the current statute.

Where a historical accusation is facially time-barred, counsel can put the statutory analysis before the prosecutor before an information is filed. This is one of the clearest applications of pre-file advocacy.

What Is NOT a Defense in Florida

Florida Statute 794.021 states plainly: where criminality depends on the victim being below a specified age, ignorance of the victim’s age, misrepresentation by the victim, and a bona fide belief that the victim was older are not defenses. Section 800.04 independently contains the same prohibition for lewd or lascivious offenses.

“The profile said 18,” “the minor told me she was 18,” and “I genuinely believed he was of age” cannot simply be presented as defenses where these statutes govern.

This does not mean the communications are irrelevant to every possible issue. In an undercover case involving no actual minor, what the accused was told and what the accused believed can bear on the elements and intent of the particular offense. But counsel must distinguish those element questions from a prohibited age-mistake defense.

Our article on ignorance of the victim’s age covers this in full.

Talk to a Defense Team That Handles These Cases

If you or someone you care about is facing a sex crime charge or investigation in Tampa Bay, the defense needs to start now. Evidence disappears. Witnesses forget. Filing decisions are made. The earlier we get involved, the more we can protect.

The Brancato Law Firm defends clients facing sex crime charges across Hillsborough, Pinellas, and Pasco Counties. We handle sexual battery, lewd or lascivious offenses, internet sex stings, CSAM cases, child abuse allegations, and sex offender registration challenges, with the forensic science capability and trial experience these cases require.

Call (813) 727-7159 for a free, confidential consultation.