J.S.M., APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A man challenged an HRS order confirming a report that he masturbated in the presence of a sleeping child, seeking expungement. The court reversed, holding that because the conduct was not prohibited by child abuse statutes at the time it occurred in 1983-1984, the report must be expunged.
The court reversed the HRS order and remanded with directions to expunge the record. Because the appellant's conduct did not violate any child abuse statutes in effect in 1983-1984, the confirmed report must be expunged under section 415.504(4)(d)2.
[1] A confirmed report of sexual abuse cannot be expunged if the conduct at issue did not violate any child abuse statutes in effect at the time of the reported act.
[2] Prior to the enactment of section 415.503(14)(e), Florida Statutes (Supp. …
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At the time of the reported act the chapter did not define a perpetrator's masturbation as "harm to a child's welfare" or "sexual abuse of a child." Therefore, appellant's confirmed act did not violate any of the then existing child abuse statutes.”
Establishes the core holding: retroactive application of new statutory definitions is improper, and conduct not prohibited at the time it occurred cannot support a confirmed abuse report.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant masturbated while in the presence of a sleeping child in 1983 or early 1984. HRS issued a confirmed report of sexual abuse based on this con…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Administrative Appeal cases and more on FLexlaw
GARRETT, Judge.
Appellant seeks review of the Department of Health and Rehabilitative Services (HRS) order denying his request to expunge a confirmed report of a sexual abuse.1
The report stated that appellant masturbated while in the presence of a sleeping child. Appellant requested that his case record be expunged as provided by section 415.504(4)(d)2., Florida Statutes (Supp. 1988). The HRS hearing officer recommended that the report be expunged. However, the final order of the Secretary of HRS (Secretary) denied appellant’s request concluding that:
Section 415.503(8)(b), Florida Statutes, prohibits the intentional masturbation of the perpetrator’s genital in the 'presence of a child. (Emphasis added) or the intentional exposure of the perpetrator’s genitals in the presence of a child or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.
We note that section 415.503(8)(b) did not exist when appellant committed the reported act in 1983 or early 1984. We assume the order meant section 415.503(14)(e), Florida Statutes (Supp. 1984), but that statute did not become effective until July 1, 1984. Other sections of 415.503 were in effect at the time of the reported act, but none of those sections included masturbation as the type of conduct which constituted “harm to a child’s health and welfare” or “sexual abuse of a child.” Before enactment of section 415.503(14)(e), only “harm to a child’s health and welfare” was defined. The only sexual conduct included in that definition was sexual battery as defined in Chapter 794 and exploitation of a child as provided in section 450.151 or for prostitution. § 415.503(5)(b) and (c), Fla.Stat. (1983). The phrase “sexual abuse of a child” was first defined in section 415.-503(14)(e) and the definition includes “intentional masturbation of the perpetrator’s genitals in the presence of a child.”
We need not address the issue decided by the hearing officer and the Secretary: Does an act of sexual abuse occur in the presence of a child if the child is sleeping during the masturbation of the perpetrator’s genitals?
One commits child abuse by doing an act prohibited by Chapter 415. At the time of the reported act the chapter did not define a perpetrator’s masturbation as “harm to a child’s welfare” or “sexual abuse of a child.” Therefore, appellant’s confirmed act did not violate any of the then existing child abuse statutes.
Accordingly, we reverse and remand with directions to expunge appellant’s case record and all identifying information in the central abuse registry and tracking system or other computer systems or records pertaining to the report. § 415.504(4)(d)2., Fla.Stat. (Supp.1988).
REVERSED AND REMANDED WITH DIRECTIONS.
DOWNEY and STONE, JJ., concur. . We chose to treat appellant's letter to this court as the Initial Brief. Appellee did not file an Answer Brief.