Sexual battery (sometimes also called “sexual assault,” or rape) is illegal in Florida, and punished as a felony. The circumstances of the offense determine the level of felony, which in turn determine which defenses and penalties that apply to the crime.

When it comes to rape, the law strives to protect strangers, acquaintances, and married people equally. In Florida, as in all states, there is no exception or defense to prosecution for rape that occurs within a marriage (to learn more about marital rape laws in Florida, see Marital Rape in Florida).

Sexual Battery

In Florida, “sexual battery” and “rape” are synonymous, and occur when someone compels a victim to engage in sexual intercourse against the victim’s will.

This crime also includes circumstances when the victim is mentally incapable of giving consent to sex (such as being in a coma or having passed out from drug or alcohol use).

(Fl. Stat. Ann. § 794.011.)

Penalties

Penalties vary depending on the ages of the parties, and the circumstances of the crime

Offender is 18 or older, victim is younger than 12 years old. An adult who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of someone younger than 12 years old is guilty of a capital felony. Penalties include a fine, life in prison, or both. Offenders are required to serve at least 25 years in prison before becoming eligible for parole. Under some circumstances, the court may impose the death penalty.

Anyone threatening to use or actually using a deadly weapon, or who uses physical force likely to cause serious personal injury commits a life felony. Penalties include a fine, up to life (not to exceed 40 years) in prison, or both.

Offender is younger than 18, victim is younger than 12 years old. A minor who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of someone younger than 12 years old is guilty of a life felony. Penalties include a fine, up to life (not to exceed 40 years) in prison, or both.

Offender is 18 or older and victim is 12 or older. It is a felony in the first degree to commit sexual battery on someone older than 12 when specified circumstances exist. For example, when the victim is physically helpless to resist or is mentally incapacitated, when the offender uses threats of force or violence or uses a drug or other substance to incapacitate the victim. Penalties include a fine, up to 30 years in prison, or both.

When the offender does not use physical force or violence likely to cause serious personal injury commits a felony of the second degree. Penalties include a fine, up to five years in prison, or both.

(Fl. Stat. Ann. § 794.011.)

Defenses to a Charge of Sexual Assault or Battery

Defendants charged with sexual assault or battery have the usual defenses available to all criminal defendants, starting with “Someone else committed this crime.”

A defendant can also claim that the sexual activity was consensual. In a criminal sexual battery case, there can be significant questions about what constitutes consent or what constitutes refusal. This has led to the infamous question of when does “No” mean “No”? Does the word constitute a lack of consent as soon as it is spoken, or must the victim object more vigorously?

Another possible defense is an insanity plea, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior, to form criminal intent or to understand what he was doing or that his actions were unlawful.

See a Lawyer

If you are facing a sexual assault charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses apply to charges of felony sexual assault and battery, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.

Help for Sexual Assault and Rape Survivors

If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

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