Florida Criminal Lawyer Blog

As Fort Lauderdale sex crimes criminal defense attorneys, we were interested to note that two young men were recently arrested in Lakeland for consensual sexual activity with younger girls. Eric Arce and Kyle Wohlfarth-Simmons, both 18 and baseball players for Lakeland High School, are accused of lewd battery on two unnamed girls, ages 14 and 15. Arce is also accused of lewd molestation. The Lakeland Ledger reported April 8 that they were arrested the preceding Friday night after a deputy found them in a truck with the semi-clothed girls, making out. The girls told the deputy that the activity was entirely consensual, but both young men were arrested and jailed until they made bail on the following Sunday.

The Polk County Sheriff told the newspaper that the ages of the people involved left his deputy no choice but to arrest the young men. After he did, said Sheriff Grady Judd, the girls’ parents were upset and chose to go through with prosecution. Florida state law does not allow minors under the age of 16 to consent to any sexual activity, Judd said. If the girls had been 16 or older, there would have been no arrests. However, if everyone involved had been 14 or 15, all four would have been arrested, he said. As things stand, Arce and Wohlforth-Simmons are both facing second-degree felony charges. If convicted, they could be required to register as sex offenders, the State’s Attorney’s office told the newspaper.

Our Miami sex crimes criminal defense attorneys believe this is a serious flaw in Florida’s handling of underage sexual activity. It’s clear that some age of consent is appropriate, but setting the age of consent at 16 creates unfair and potentially life-altering legal situations. By allowing the older half of a teenaged couple to be criminally prosecuted over the protests of the “victim,” the legal system throws kids into jail for doing the same things their friends are doing legally. These young men are accused of lewd battery, which is the same crime charged against defendants who force people under 16 into prostitution. If convicted, they face up to 15 years in prison, and Arce could face double that time if also convicted of lewd molestation. The State’s Attorney’s office is right that they could also be registered as sex offenders, although Florida’s “Romeo and Juliet” law would allow them to petition for removal.

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Our Fort Lauderdale sex crimes criminal defense attorneys have long believed that sex offender registration laws and residency restrictions are not good laws. This is in part because they create homelessness and obstacles to rehabilitation, but also because they don’t allow flexibility for special circumstances. We believe that flexibility may have been called for in the case of a homeless man recently profiled in the South Florida Sun-Sentinel. The newspaper ran an article March 1 following up on a Feb. 25 profile of Gary Kerpan, 60, who is a sex offender because of his conviction for raping and killing a 12-year-old girl in Illinois. He is also a Vietnam veteran with paranoid schizophrenia and post-traumatic stress disorder.

Kerpan confessed in 1990 to the 1977 rape, stabbing and murder of a child in the Chicago suburbs. He was released from prison in 2006 and came to Florida, in part because his mother lives here. However, he was arrested in early 2007 for failure to register as a sex offender and imprisoned until August of 2009. At that time, he started living on the streets in Fort Lauderdale. Because of his sex offender status, he is not allowed to stay with his mother or in Broward County shelters. After the newspaper profiled him, he was arrested Feb. 26 for failing to report his address as “transient” to the state as part of his sex offender obligations. The Department of Veterans Affairs said it could help Kerpan with housing and mental health services if a judge agreed. However, the Broward State’s Attorney’s office has not yet decided whether to prosecute him.

This article doesn’t emphasize Kerpan’s schizophrenia or post-traumatic stress disorder. However, our West Palm Beach sex offense defense lawyers suspect that these are the primary causes of his homelessness. Even the mentally ill who are lucky enough to have loving families and financial resources can end up on the streets. Their illnesses make it nearly impossible to meet basic obligations like holding down a job and paying rent. In Kerpan’s case, his mental illness may also make it difficult to remember, and follow through on, his obligation to register. Holding offenders like him to their obligations may still be necessary, but the state should do so with realistic expectations, and possibly by providing help when necessary. If that’s not possible, the least police and prosecutors should do is show some mercy to people like Kerpan, who now faces his second felony failure-to-register charge.

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