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Special Consent Rules in Florida Sex Crimes Cases


Many states very narrowly define consent in sexual battery matters. But Florida’s definition is rather broad. The law defines “consent” as “intelligent, knowing, and voluntary consent.” Perhaps most significantly, there is no reference to prior encounters between the two parties. So, in the Sunshine State prior consent could be evidence of current consent. Nevertheless, as outlined below, there are some significant limitations.

Consent is an affirmative defense. The defendant must admit to the conduct charged in the information or indictment, and argue that, under Florida law, that conduct did not constitute a crime.

So, before committing to a consent defense, a Tampa criminal defense attorney should thoroughly review your case. Even if the alleged victim arguably consented, in light of the other law and facts, consent might not be the best defense. Other approaches, like a procedural defense, might have a better chance of success.

Legally Unable to Consent

In many states, alleged victims under 16 are unable to consent to sexual activity as a matter of law. The facts are completely irrelevant. But in Florida, the age of consent is 18. Furthermore, some states have a “Romeo and Juliet” exception if the parties were underage and about the same age. But Florida has no exception.

Furthermore, the defendant’s status could be a factor. Essentially, there are some situations, according to Florida law, in which people over 18 cannot effectively say no. The inability to say no invalidates a yes. This rule applies, regardless of the alleged victim’s age if the defendant was a:

  • Law enforcement officer,
  • Correctional officer,
  • Probation officer, or
  • School authority figure.

That last category includes not only paid administrators, teachers, and other school workers, but also people like student teachers and field trip chaperones or other unpaid volunteers.

Significantly, there must be a special relationship between the defendant and alleged victim. That does not necessarily mean student-teacher or something that close. Almost any attachment could defeat the consent defense.

Mental Incapacity

Once again, regardless of age, mentally incapacitated people cannot consent to most sexual activities.

That incapacity could be a mental defect of some kind. Many people are over 18, but they are immature. The brain does not fully develop until people are at least in their mid-20s. However, immaturity is not a mental defect, so immature people can legally provide consent.

That mental incapacity could also be temporary, mostly due to alcohol or drug impairment. In Florida, the alleged victim must normally be legally intoxicated, which means that s/he has lost the normal use of his/her mental or physical functions.

Additionally, voluntary intoxication or drug use does not invalidate consent. The line between voluntary and involuntary intoxication in this area is often somewhat blurry.

Physical Disability

This final rule is similar to the previous one. The disability could be a permanent loss of function or handicap which substantially limits the alleged victim’s ability to flee or resist. Not every physical handicap qualifies as such. Alternatively, the disability could mean the alleged victim was “unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.”

Connect with an Experienced Attorney

Florida’s consent defense is often complex. For a free consultation with an experienced Tampa criminal defense lawyer, contact the OA Law Firm. Virtual, home, and jail visits are available.

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