A Kissimmee man faces life in prison after being arrested on sex crime charges of sexually assaulting a 16-year-old girl multiple times at the University Behavioral Center mental health facility on Discovery Drive in Orlando. According to police reports, Fernando Ortiz-Marrero, 33, was taken into custody after being reported by the facility’s management.
WFTV Channel 9 News interviewed Orlando criminal defense attorney and television legal analyst Jose Rivas about the case. To begin with, Rivas said, under Florida law, a 16-year-old cannot legally give consent for sexual activity with anyone who is 18 or older; the age of consent in Florida is 18. There is an narrow exception to sex crime charges known as the “Romeo and Juliet” law (Florida Statute 943.04354), which was designed to prevent young people close in age from facing the harshest consequences of statutory rape laws. But that law doesn’t apply in this situation.
Age of Consent and Custodial Authority
The state’s Romeo and Juliet laws provide limited protection for consensual sexual relationships between individuals close in age. However, these protections only apply when the minor is at least 14 years old and the older person is no more than four years older. Ortiz-Marrero is 33 years old, while the alleged victim is 16. “The age difference is a big concern here,” Rivas said. “The 17-year age gap between the defendant and victim places this case far outside any legal protection, making consent irrelevant under Florida law.”
In addition to that, there are enhanced penalties involved because the alleged victim was in “custodial care” at the time of the reported assaults.
Rivas said that there is a simplified burden of proof in this situation that demonstrates how Florida law prioritizes protecting minors over complex legal defenses.” All the state needs to prove in this case is that this victim was underage and that there was some kind of illegal sexual activity,” he said.
Defining Custodial Authority in Healthcare Settings
Florida courts have broadly interpreted custodial authority to include healthcare workers, teachers, coaches, and other professionals who work with minors. Legal precedent establishes that a ‘custodian’ is someone who has custody of another. ‘Custody’ connotes a duty or obligation to care for the other. This definition encompasses anyone who has care responsibilities for another person, particularly in institutional settings where patients are vulnerable.
In mental health facilities, this authority is particularly pronounced. The victim in the Ortiz-Marrero sex crime charges was admitted under Florida’s Baker Act, which allows for involuntary psychiatric examination. Such patients are often in crisis and may be held against their will for their safety, creating an inherent power imbalance that the law specifically addresses.
Florida’s Enhanced Sentencing for Sex Crime Charges
Florida law recognizes that sexual offenses committed by those in positions of trust and authority warrant significantly harsher punishment than other sex crime charges. Under Florida Statute 794.011(8)(b), sexual battery committed by a person in familial or custodial authority over a minor between 12 and 18 years old constitutes a first-degree felony punishable by life imprisonment. This enhanced penalty reflects the state’s commitment to protecting vulnerable individuals from those who abuse their positions of trust.
This statute recognizes that patients in mental health facilities are in particularly vulnerable positions and may not be able to provide meaningful consent due to their mental health conditions, medications, or the inherent power imbalance between staff and patients. The law defines “sexual misconduct” broadly to include any sexual activity between an employee and a patient, making it clear that consent is not a defense to these charges.
Legal Challenges and Defense Perspectives
Rivas said that from a defense perspective, cases like that of Ortiz-Marrero involving custodial authority present significant challenges. “He has his side of the story. Which doesn’t quite make sense, and it’s going to be a challenge for the defense,” he said. “The defendant’s admission that he knew he was in the wrong, combined with security camera footage showing him entering and exiting the victim’s room, creates substantial evidence for sex crime charges.”
Orlando Criminal Defense Attorney Jose Rivas is a veteran bilingual TV Legal Analyst who has appeared on Univision, Fox News, Telemundo, and many other news outlets.