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Loophole in Florida child-sex law vexes activists

CLEARWATER — For activists across Florida, the recent rape of a 12-year-old girl in a Clearwater apartment demonstrates a loophole in Florida law that could allow child sex offenders to escape the harshest penalties.

Under existing law, those accused of having sex with children ages 12 to 16 often face charges of lewd and lascivious battery.

For sex crimes against children just a year younger, that charge is capital felony rape.

The state's stance, according to child injury lawyer David Wolf, is clear: "If you have sex with a 12-year-old, you're in trouble. If you have sex with an 11-year-old, you're in a lot of trouble."

The legal line-in-the-sand was played out after Clearwater police say a 12-year-old runaway received money in exchange for sex earlier this week.

Police arrested two men on charges of lewd and lascivious battery and say more arrests could be coming.

Victorino Panzo-Panzo, 37, and Abel Calihua-Macuixtle, 30, face second-degree felony charges.

Those charges aren't enough, said state Sen. Mike Fasano, R-New Port Richey, whose district includes parts of North Pinellas, Pasco and Hernando counties.

He's confident that prosecutors will stack further charges against the men but warned that if they couldn't within existing laws, he'd pursue new legislation.

"There are too many opportunities for these criminals — these rapists — to find loopholes," Fasano said.

Fasano's legal team suggested a number of avenues prosecutors could seek to bump up charges to a possible life felony.

Those avenues include proving the victim was physically helpless or under immediate threats from the suspects.

That could be a tough sell in court, however, as police have said the suspects were paying — rather than threatening — the victim.

As the case stands, both suspects face a maximum 15 years in prison. Had the victim been a year younger, both would face a maximum of life in prison.

The situation could raise questions among children's advocates wondering how the state makes sweeping judgments of a child's maturity based on age, as opposed to individual psychological development.

"Although it is not a black-and-white issue, keeping children safe is a black-and-white issue," said Lisa Negrini of Pinellas County's Help a Child Inc.

It's inappropriate, she said, for state law — especially in cases of sex — to assume children all develop at the same speed.

"These are kids you sometimes wouldn't let babysit," said Jill Turner of the Children's Advocacy Center of Southwest Florida.

The state suggesting that sex with a 12-year-old is different than sex with an 11-year-old doesn't make sense, she said.

Florida, however, isn't the only state to designate 12 as a cut-off age.

A former Louisiana law — overturned in 2008 by the U.S. Supreme Court — allowed for the execution of those found guilty of raping children younger than 12.

Then-presidential candidates Barack Obama and John McCain decried the ruling.

McCain called the ruling "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime."

A 1981 Florida Supreme Court ruling barring the practice was mentioned in the decision.

But if 12 is an arbitrary age, as some advocates argue, what are the state's other options?

Introducing complicating factors such as a child's maturity level could be a logistical nightmare, Wolf said.

Chief Assistant State Attorney Bruce Bartlett said the laws regarding sex with children have changed little over the years. State attorneys will work with the laws provided to prosecute those charged in the Clearwater case to the fullest extent, he said, but didn't specify whether the men charged in this case would face new charges.

He explained that the cut-off age for capital rape was likely part of an effort to provide special protection for young children, as opposed to providing less protection for older children.

None of that matters for the advocates who want to see child rapists behind bars.

"We don't want men who are predators going around seeing if a child is 12 or 11," Turner said.

Brian Spegele can be reached at bspegele@sptimes.com or (727) 445-4154.

Loophole in Florida child-sex law vexes activists 07/15/09 [Last modified: Thursday, July 16, 2009 3:53am]
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