Answering Frequently Asked Questions About Sexual Battery in Florida

September 5, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, sexual battery is an extremely serious criminal charge. If someone is involved in a Florida sexual battery case or is conducting research into the state’s sexual battery statute (Fla. Stat. 794.011), many “frequently asked questions” tend to be asked. This blog will answer those questions.

#1 – What is sexual battery in Florida?

Sexual battery is commonly referred to as rape. It is defined under Fla. Stat. 794.011 as oral, anal, or vaginal penetration by, or union with, the sexual organ of another, without the victim’s consent. Sexual battery can also occur through the non-consensual anal or vaginal penetration of a victim with an object, including a finger.

Sexual battery does not include acts done for a bona fide (true) medical purpose (e.g. a licensed gynecologist performing a procedure on a patient with their consent). It also requires penetration or union (physical contact) with a bodily orifice, so unwanted touching does not rise to the level of sexual battery if no union or contact occurs. 

#2 – What is consent for purposes of sexual battery?

Consent occurs when someone eighteen or older voluntarily engages in a sexual act of their own free will, without being forced or coerced to do so. Someone does not have to physically resist for a lack of consent to be established. What matters is whether the victim actually consented. 

Someone who is unconscious, asleep, or otherwise physically unable to communicate their unwillingness to engage in a sexual act cannot consent under Florida law. Coley v. State, 616 So.2d 1017 (Fla. 3d. DCA 1993). Minors are legally incapable of consenting to sex in Florida.

#3 – What are the penalties for sexual battery?

Sexual battery is one of the most serious felonies in the state of Florida. As a result, the penalties are severe if someone is convicted.

Florida law outlines the following potential penalties for sexual battery:

• Victim under 12, defendant 18 or older: Sexual battery is punishable by death or a mandatory minimum of life in prison. Though the Florida and U.S. Supreme Courts have held the death penalty unconstitutional for rape that does not result in death, Florida law authorizes it. Kennedy v. Louisiana, 554 U.S. 407 (2008); Buford v. State, 403 So. 2d 943 (Fla. 1981)
• Victim 12 or older but under 18, defendant 18 or older: A first-degree felony punishable by up to 30 years in prison and a $10,000 fine, or up to life in prison with threat of violence or the use of a weapon.
• Victim under 18, defendant 18 or older and in a position of familial or custodial authority: A first-degree felony punishable by life (PBL) in prison.
• Victim over 18, defendant over 18: A second-degree felony punishable by up to 15 years in prison and a $10,000 fine (enhanceable to more severe penalties if actual force or a weapon was used).

Attempted sexual battery is charged one degree below the completed offense. Since the “least severe” penalty for sexual battery in Florida is a second-degree felony conviction (up to 15 years in prison), it is critical to seek out an experienced and aggressive Florida defense attorney if arrested and charged.

#4 – Does a conviction require sex offender registration?

Yes, if someone is convicted of sexual battery in Florida (Fla. Stat. 794.011), they are required to register as a sex offender. This places a series of restrictions upon anyone convicted, which may have significant impacts on someone’s ability to find a job or even a place to live.

This requirement also applies if someone was committed of sexual battery in another jurisdiction (e.g. if someone is convicted in Georgia and moves to Florida, they must also register in Florida).

#5 – What is the statute of limitations for sexual battery in Florida?

Under Fla. Stat. 775.15(1), capital felonies, life felonies, and any felonies resulting in death do not have a statute of limitations. If someone is facing a capital or life felony charge of sexual battery (e.g. victim under 12 or between 12-18 with weapon/use of force), there is no statute of limitations as to when a prosecution can be initiated.

There is no statute of limitations at all when it comes to initiating a sexual battery charge against someone accused of committing sexual battery against a minor (under age 18). This is a result of “Donna’s Law,” which passed in 2020.

If the victim of a sexual battery was not a minor and is not being charged as a capital or life felony, the statute of limitations follows standard Florida law unless designated otherwise by statute.

These standard limits are:

• For a first-degree felony, four years from the time of the alleged event
• For a second or third-degree felony, three years
• For a first-degree misdemeanor, two years (but sexual battery is never charged as a first-degree misdemeanor)
• For a second-degree misdemeanor, one year (sexual battery is never charged as a second-degree misdemeanor)

#6 – Can I be charged with sexual battery if we were both drunk?

Yes. If someone is drunk or high (intoxicated) to the point where they cannot legally consent to sexual activity, any sexual penetration or union that occurs is legally considered sexual battery. 

Moreover, voluntary intoxication is not a defense in Florida (Fla. Stat. 775.051). Thus, someone cannot defend against a sexual battery claim by arguing that they were drunk or high, so could not stop themselves from committing the act. 

However, just because someone was under the influence does not automatically invalidate their consent.

Consent is invalid, making sexual penetration or union sexual battery, if:

• The alleged victim was unable to give knowing or voluntary consent, and this inability was known or apparent to the defendant (Coley v. State, 616 So.2d 1017 (Fla. 3d. DCA 1993))
• The intoxication of the alleged victim was involuntary (e.g. their drink was spiked or they were forced to get drunk)(Buonanotte v. State, 356 So.3d 824 (Fla. 4th DCA 2023))
• The alleged victim was so impaired that they were unaware or unable to comprehend their actions and communicate rationally (Taylor v. State, 316 So.3d 420 (Fla. 1st DCA 2021))
• The alleged victim was physically helpless (e.g. unconscious or asleep, blacked out, or otherwise unable to communicate a desire for the act not to take place)(Clark v. State, 969 So.2d 573 (Fla. 1st DCA 2007))

As you can see, Florida’s courts are clear that being under the influence can render someone unable to consent to sex. But it is not true that every time someone has had a drink or is above the legal limit to drive (for example), that any sexual act with them constitutes sexual battery. 

#7 – Can charges be dropped if the victim does not want to prosecute?

Under Marsy’s Law, victims have the right to be heard at all stages of a criminal proceeding. However, this does not mean that if a victim indicates they do not want to press charges, the charges will be dropped. 

The decision to charge belongs squarely to the State Attorney’s Office (prosecutors). When someone is accused of a crime as serious as sexual battery, the key consideration for prosecutors is usually not the victim’s opinion on the charges, but what they can prove to a jury.

Moreover, if the alleged victim is a minor, the “will” of the child is irrelevant as they could not legally consent. The only question is whether the sexual conduct occurred. A child’s desire for charges not to be brought will not sway a prosecutor if they can prove illegal sexual activity happened.

#8 – Is “Romeo and Juliet” a defense to sexual battery?

No, Florida’s Romeo and Juliet law is not a defense to sexual battery.

It can occasionally be used to avoid the sex offender registry if someone is convicted of a lewd or lascivious offense, and the following are true:

• The alleged victim was 14 to 17 years old
• The defendant was less than 1,460 days older than the victim at the time of the offense (4 years)
• The alleged victim “consented” to the sexual activity (no force or coercion was used, no resistance was offered, and the victim wanted the act to occur)
• The defendant does not have a criminal history

If someone engages in a sexual act with a minor in the age covered by Romeo and Juliet (14-17) and the minor did not want this to occur, it is considered sexual battery rather than a lewd or lascivious offense (e.g. lewd or lascivious battery or molestation). Romeo and Juliet cannot be used to avoid the registry for someone convicted of sexual battery.

#9 – What is a family member or custodian for sexual battery purposes?

A family member or custodian for purposes of sexual battery purposes is defined by a Florida 1st District Court of Appeal case – Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986).

To be considered someone in familial or custodial authority to a child, at least one of the following must be true of the defendant:

• They maintained a “close relationship” with the alleged child victim or other children of the specified age (such as a school employee)
•  They lived in the same household as the alleged child victim

“Familial authority” is defined as a relationship that creates “a recognizable bond of trust” like that between a child and a father, grandfather, uncle, or guardian. Crocker v. State, 752 So.2d 615 (Fla. 2d. DCA 1999). 

“Custodial authority” implies a duty or obligation to care for the child, often in loco parentis (in the place of a parent), and requires both custody and control (e.g. a teacher during the school year on school property, stepparents).

Sexual battery by a person in familial or custodial authority in Florida (Fla. Stat. 794.011(8)) is punishable by a mandatory minimum of life (or the death penalty) if the child is under 12, or a first-degree felony punishable by life (PBL) in prison if the child is between 12 and 18. This is an extremely serious enhancement, making it critical to discuss with an attorney.

#10 – What defenses are available to a sexual battery charge in Florida?

Available defenses to a sexual battery charge vary depending on the facts of a case (especially if the alleged victim was a minor).

However, some of the most common defenses include:

• Lack of evidence (no corroboration of the act occurring)
• Mistaken identity
• Consent to the act (if the alleged victim was an adult)
• False allegations
• Alibi (if the defendant can establish they were somewhere else when the alleged battery occurred)
• Procedural defenses (e.g. motions to suppress and exclude evidence unfavorable to the defendant on the basis that it was unlawfully obtained/the State is procedurally barred from using it)

By understanding the answers to these frequently asked questions about sexual battery, someone in Florida will be better informed if they or someone they love are currently (or ever are involved in) a sexual battery-related case.

If someone is charged in a case involving alleged sexual battery, including by a family member or person in custodial authority, it is critical to seek out experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to hefty fines and prison time. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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