Ex-firefighter caught on video performing sex act in 6-year-old's room will not be charged

9 Investigates why a former Orange County firefighter won't be charged criminally after investigators say he was recorded on camera performing a sex act near a 6-year-old.

ORANGE COUNTY, Fla. — A former Orange County firefighter will not be charged for lewd and lascivious behavior.

He was arrested in February when the mother of a 6-year-old caught him on video committing a disturbing sex act.

WFTV investigative reporter Daralene Jones found out a nearly 20-year-old Florida Supreme Court ruling will keep this case out of court.

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According to a statement from the Orange-Osceola County state attorney, the decision centers around the fact that the child was sleeping when the incident happened.

Former firefighter Edward Negron was fired weeks after he was arrested on suspicion of lewd and lascivious exhibition.

Deputies said Negron was caught on camera walking around the bed of a 6-year-old child in his care and then pleasuring himself as he stood over the bed.

“When a lawyer looks at this case to prosecute, they know that in order to prove a lewd act in the presence of a child, the child has to witness the act,” said WFTV legal analyst Bill Sheaffer.

State attorney Aramis Ayala said in this statement: "The decision not to prosecute this case is based upon current Florida law and the most recent Florida Supreme Court decision State v. Wener (1992), which requires the child to be aware of the appalling conduct. The child in this case was sleeping. While this outcome is frustrating, it also serves as notice to the legislature that the law needs to be amended. We intend on working with our legislators to address this issue."

State Sen. Linda Stewart said she is committed to researching what she calls a loophole.

“The language of being present, I think that's questionable, that they have to be present and understand what's going on. I don't see how that's even possible,” Stewart said.

But efforts to change the law may be impossible.

“The law is designed to protect children from emotional or psychological harm,” Sheaffer said. “And the Supreme Court said if the child doesn't see it, even if it's in the child's presence, then it's not going to result in any harm to the child.”

When the child's mother confronted Negron with the video he said he was "sorry," and that he knew that what he did was "wrong."