By now, sex on the beach is a familiar concept to most Americans.
But actually doing it? In broad daylight?
Apparently that will earn you two and a half years in prison, particularly if you do it in front of children and if you happen to have already been convicted of drug trafficking.
On Monday, a Florida judge sentenced Jose Caballero to 30 months in prison and a spot on a sex offender registry for allegedly bedding his girlfriend on a public beach last summer.
Two months ago, a jury convicted Caballero, 40, and his girlfriend, Elissa Alvarez, 21, of two counts each of lewd and lascivious behavior for copulating on the sand in front of gawking bystanders on July 20, 2014.
A woman called 911 to complain she “was very upset because her 4-year-old daughter witnessed the couple having sex on the beach,” according to an affidavit.
“I couldn’t believe it,” the child’s grandmother, April Champ, told the Bradenton Herald. “I was like, ‘What?’”
The child “wanted me to explain what they were doing,” she continued. “I redirected her and we looked at seashells.”
During the trial, Caballero told jurors that Alvarez was merely dancing on top of him. Several witnesses provided graphic testimony to the contrary, however, and the video showed Alvarez grinding on top of Caballero.
Caballero’s defense attorney, Ronald Kurpiers, said that witnesses didn’t describe seeing genitals or penetration, so it was pure “speculation” to accuse his client of having sex on the beach.
But Assistant State Attorney Anthony Dafonseca said that what happened on the sand was all too clear.
“She wasn’t dancing,” Dafonseca said during the two-day trial. “It’s insulting your intelligence to say that she was dancing.”
“I’m not going to tell you how exactly sexual intercourse goes but as far as how she was moving and as far as what the witnesses described, there is no need to be moving your bathing suit aside,” he added on Monday after the sentencing, according to the Bradenton Herald. “So all the circumstances fell together just right and I don’t think the jury had any doubt that that was sexual intercourse either.”
Also up for debate was whether the child really witnessed the too-much-fun-in-the-sun felony, a detail harped on by prosecutors and reflected in the charges of “lewd or lascivious offenses committed by people 18 or older, upon or in the presence of people under 16 years old.”
Kurpiers said claims that kids saw the couple having sex were “hearsay” because no minors testified. He also criticized the judge for denying a hearing to determine if the children had truly seen Caballero and Alvarez having sex.
The case garnered international attention when it became clear that the couple could face as much as 15 years in prison for taking their romantic outing a tad too far.
One man started an online petition asking President Obama to pardon the couple. Nearly 1,400 people have signed.
Prosecutors took a hard line, arguing that letting the lewd act slide could have bigger consequences. Call it the broken windows approach to PDA.
“We’re dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they’re here on the beaches of Manatee County, our public beaches,” Dafonseca told the Herald. “So you want to make sure that this isn’t something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won’t be.”
The State Attorney’s Office offered the couple plea deals — 60 days time served for Alvarez and two and a half years for Caballero because of a prior drug sentence — but they rejected the deals because they would have been considered sex offenders.
But when a Manatee County jury convicted them on May 4 — deliberating for just 15 minutes — Caballero and Alvarez wound up with that label anyway.
Ultimately, prosecutors backed down from their threats to throw the book at the overly amorous couple. After initially threatening to push for 15-year sentences, the State Attorney’s Office agreed to the original plea deals. On Monday, a judge concurred.
Caballero’s attorney said he was relieved that his client wouldn’t be spending 15 years in prison, but that two and a half years was still too stiff a sentence.
“Do I believe, personally, that 2½ years is something that he should have to do? The answer is no,” Kurpiers said. “But I was caught between a rock and a hard place. If I rejected that, he was back to the exposure to 15 years.”
Kurpiers also said sex on the beach wasn’t worthy of sex offender status, which will prevent Alvarez and Caballero — upon his release — from living near a school, park, playground or day care. The couple will also have to register with the state.
“I don’t believe that his sex offender registration is applicable with what he’s convicted of,” the defense attorney told the Herald. “I just don’t. I think it’s horrifically unfair.”
Kurpiers said his client intends to appeal. Alvarez already appealed her conviction last month.
If Caballero does go to prison, his two-and-a-half-year stint will cost the state $45,160, the Herald calculated.
Reactions were split over the sentences.
“These two apparently have no regard for others and no scruples,” commented Theresa Dufore Long on the Herald article. “I don’t feel bad for this guy at all.”
But many more commenters objected to the public cost associated with incarcerating someone simply for having sex, or the practice of labeling consensual adults like Caballero and Alvarez “sex offenders.”
“Isn’t that supposed to be for child molesters and perverts?” wrote Gerald Gordon.
“This is absurd,” wrote Mary Lynn McDavid. “Look around — how did we all get here? This is Puritanism at its [worst]. As for kids, it is only bad if we tell them it is.”