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In Florida, unwanted sexual touching for victims 16+ is not a felony

Now a lawmaker following Christina Vazquez’s coverage of the issue is looking to change that

A lawmaker wants to revisit the penalties after Local 10 News' coverage of an allegations that a former Biltmore Hotel massage therapist is a sexual predator.

Several more women in a civil complaint are now accusing a former Biltmore Hotel massage therapist of being a sexual predator. For one of these women, it was not just the incident that she says has left her traumatized, but the related criminal charge he is facing in her case, simple battery, a misdemeanor. Now a lawmaker is considering changing what he calls a “glitch” in state statutes when it comes to unwanted sexual touching for victims as young as 16 and older.

“It is a very serious breach,” said Seda Aktas, one of the women who told Coral Gables police that Oscar Ojeda, a now-former Biltmore Hotel Spa massage therapist, fondled their external genitalia while performing massages. Victims told police the incident left them in a “state of shock” and “frozen in fear.” She spoke with Local 10′s Christina Vazquez, agreeing to be identified and do an on-camera interview.

Aktas still struggles with what she said happened at the hotel spa in April, telling police Ojeda exposed her private parts before touching them inappropriately. Then, she saw what charge he was facing, ‘simple battery, a misdemeanor. Aktas, an attorney, was stunned. “I don’t think a sexually motivated crime against another person should be a misdemeanor,” she said, fighting back tears. “An ‘unwanted touch.’ I have prosecuted them, I have defended them, and the technical version is something I have lost and won on and I don’t think that fondling someone’s genitals should carry the same weight as unwanted touch anywhere else on their body.”

But Florida law doesn’t see it that way. There is currently no felony-level offense to charge a person accused of fondling a victim’s sexual organs without their consent if the victim is 16 or older.

Adriana Alcalde, a former sex-crimes prosecutor who is now representing Aktas and several other women in a related civil suit against the hotel, along with co-counsel Eric Baum, puts it this way: “Men can freely just grab a woman, in the most private area, and it is not even a felony. It is not even a real serious crime here in Florida.”

“I think that a lot of people who watch this story are going to be shocked and surprised to learn that,” said former state and federal prosecutor David Weinstein.

To qualify for a sexual battery, Florida statutes state there must be penetration.

Under the statute for Lewd & Lascivious Molestation, the victim must be younger than 16.

That leaves law enforcement and prosecutors pursuing charges against someone who is accused of touching the sexual organs of victims as young as 16-years-old without their consent the charge of simple battery, the same misdemeanor charge for something as minor as grabbing someone’s arm without their consent.

“Anytime anyone touches me without my consent, anywhere, that’s a battery and so it makes it even worse because where it was alleged that the masseuse touched these women,” said Weinstein who added, “regardless of what the crime is if you are victimized in a manner like this you shouldn’t be afraid to report it because that’s what is going to stop this from happening.”

DO STATE LAWS NEED TO CHANGE?

“I think something needs to be done,” state Rep. Michael Gottlieb said when we brought this case to his attention. “We can call it a loophole, or we can call it a glitch. In the legislature, we call it a glitch, and we say that when we look back at a statute, the statute is doing what it was intended to do but there are areas where it is failing us.”

Gottlieb said he was already working to expand the statute of limitations for civil sex offenses, now exploring whether a change needs to be made to the criminal statutes, “because what it has done is it has almost given a license to somebody who is giving a massage to touch somebody inappropriately and get away with it.”

Also consider, if a defendant is convicted of misdemeanor battery, even if the charge relates to fondling the external sexual organs of someone as young as sixteen, because it is not a sex crime in Florida, the defendant would not have to register as a sex offender.

“There is no red flag to know that this person is a danger,” Gottlieb explained.

“I think that would be very dangerous for anybody else who he would have the license to touch,” Aktas said.

Coral Gables police said three women accused Ojeda of unwanted vaginal contact, but they were only able to file battery charges in two cases because one case exceeded the statute of limitations. The two battery charges were filed against Ojeda in May 2021.

The other battery charge victim also spoke to Local 10 News.

Former Impact Wrestling and WWE performer Taryn Terrell has joined Aktas and several other women as plaintiffs in the related civil suit filed against The Biltmore Hotel.

Terrell said the experience was terrifying. “All I could think was, ‘Here I am face down on a bed: What happens if I fight? What else can this man do to me? If I anything more than just lay, there and be silent what else could happen to me?”

Unlike Aktas who reported the incident to both hotel staff and police, triggering the broader police investigation which identified Terrell’s complaint, Terrell just reported the incident to hotel staff. “They said HR will follow-up, and of course HR never followed up,” she said, “when I get this call that it happened to somebody else it was heartbreaking because my entire point of going to them and talking to them, I wanted to ensure that this didn’t happen to anybody else. I can’t understand why anyone would want to protect a predator.”

She said hotel staff offered her a refund and a free massage, “which obviously I did not want another massage. They made me feel belittled in that situation.”

The Louisiana-based pro-wrestling celebrity says she mustered the courage to share her story because as someone who must “live with the trauma with this every single day,” she hopes speaking out will help others. “If he is only charged with a misdemeanor,” Terrell said, “he can absolutely continue to do this, to hurt women, and I will continue to use my voice to make sure that there is reform because a predator like this should not be allowed to be in positions where he can continue to do this. I don’t know that we are going to ever be able to stop it unless we change the law.”

“I think another area where we need policy change and stricter penalties and implications is when it comes to the business themselves,” said civil complaint co-counsel Eric Baum. “In this particular case there were repeated reports of sexual assault, the business looked the other way, they did nothing. Hotels, spas, other businesses around the country have the legal obligation to look into these matters, investigate them, report them, and take action. Their failure to do so should bring with it some stricter penalty or punishment for them, for not doing what they should do under the circumstances.”

Ojeda’s defense attorney tells Local 10 News “we have no comment at this time.” His next court hearing is scheduled for December.

The Biltmore Hotel says he is now a former employee and released this statement in October when the civil complaint was first filed:

A ‘LICENSE TO TOUCH’: Self-reporting ‘criminal activities’

According to the Florida Board of Massage Therapy’s website, license holders are “required to report all criminal activities” after receiving a license to include providing “the date of the offense” and “a description of the crime.”

Coral Gables Police confirm that Ojeda’s last name on his driver’s license is Oscar Ojeda-Jimenez. In his May 2021 arrest affidavit, he was described as the “lead therapist” at the Biltmore Hotel Spa in Coral Gables.

The Florida Board of Massage Therapy licenses massage therapists in Florida. As of Friday, November 19, 2021, a search of Florida Department of Health records shows there is a massage therapist license for Oscar Ojeda Jimenez. The license information shows his license status as “CLEAR/ACTIVE” which it defines as “the license practitioner is clear to practice his/her profession in the state of Florida.”

The records also say there are no “discipline cases” found and no public complaints.

For weeks Local 10 News has been trying to obtain from the Florida Department of Health public information pertaining to this license holder and clarifying questions related to the Board’s oversight regulatory process of license holders.

On Friday at 4:57pm the Florida Department of Health’s Office of Communications sent a statement that read: “The Department is vigilant in its mission to protect the people of Florida from dangerous health threats. Through a robust licensing process and a dedicated investigative team, the Department works to ensure that only individuals qualified by education and experience can obtain a health care license. Patient safety is a top priority for the department in administering any disciplinary action against a practitioner.”

On Saturday Florida Department of Health Press Secretary Jeremy Redfern stated that he, “cannot say whether or not the Department received a complaint or plans to take any action against a practitioner until 10 days after probable cause is found. This is established by Florida Statute 456.073.”

At last check, the Florida Department of Health continued not to address questions pertaining to whether the license holder self-reported “all criminal activities” as is required.

VICTIM ADVOCATES PUSH FOR REFORM

“We have done a lot of work in Florida recently,” said Camille Cooper, vice president of public policy at RAINN. “Two years ago we removed the statute of limitations for sexual battery for victims 16 to 18, and this year we are going to be working on eliminating the entire statute of limitations for everyone.”

RAINN, (Rape, Abuse & Incest National Network), is the largest anti-sexual violence organization in the country. It also operates the National Sexual Assault Hotline 800-656-HOPE. Part of RAINN’s mission is to carry out programs to “prevent sexual violence, help survivors, and ensure that perpetrators are brought to justice.”

Cooper said in this case, where a massage therapist is accused of touching the victims’ external sexual organs without their consent while they were unclothed in the context of receiving a massage, presents a “next level” case in part due to the touching of their genitalia without even a barrier of clothing. “If Florida has a loophole where that would not be considered a felony, I definitely think that the Florida legislator would need to take a strong look at that.”

Weinstein explained that according to current Florida statutes, the lack of penetration is what prevents police from charging sexual battery versus a simple battery. Victims we spoke with said the lack of penetration did not make the unwanted touching of their external sexual organs any less traumatizing.

“Anytime that your consent is violated in any way, in any kind of sexual manner, it is going to be traumatizing,” Cooper said. “And I think that all of the descriptions of their reactions to it and their feelings around it are all very consistent with having been traumatized, so if I could say anything to the survivors and other people in Florida who are concerned about this is one, it is really important to give survivors the space to have their own reaction, and understand this is a violation of someone’s body, their intimate parts, so it would be very traumatizing.”

“Someone who is interested in sexually violating someone might actually put themselves in a position where they had a job, professionally, where they would have access to women, or men, in that manner so I think it is important to also look at the requirements for employment screening,” Cooper said. “So if you are running a business that employs people who are providing these kind of services, maybe Florida needs to set into motion legislation that would require certain aspects of a background check like asking someone not just if they have been convicted of an offense or whether they have been arrested or charged for a misdemeanor or felony” related to a sexual offense. “I definitely think that there are multiple areas here where legislation could impact and sort of tightening things up in the state of Florida to address these issues.”

RELATED LINKS:

From the legal definition of rape to the statute of limitation for a particular sex crime, where you live makes a difference. Here’s a guide to the laws in your state.

State-by-state guide on statutes of limitations.

If you are in immediate danger, call 911.

Rape, Abuse & Incest National Network: 1-800-656-HOPE (1-800-656-4673); Advocates are also available to chat 24/7

National Center for Victims of Crime: 1-855-4-VICTIM (1-855-484-2846)

Domestic Violence Hotline: 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)

Sexual Assault Hotline: 1-800-656-HOPE (4673)

Teen Dating Abuse Helpline: 1-866-331-9474, 1-866-331-8453 (TTY)

Victim Hotline: 1-855-4-Victim (855-484-2846)

Florida Council Against Sexual Violence: 850-297-2000; Hotline: 1-888-956-7273


About the Author:

Christina returned to Local 10 in 2019 as a reporter after covering Hurricane Dorian for the station. She is an Edward R. Murrow Award-winning journalist and previously earned an Emmy Award while at WPLG for her investigative consumer protection segment "Call Christina."