Can Willing Participation Lead to Downward Departures in Florida Sexual Battery By Familial or Custodial Authority Cases?

March 5, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Decisions from Florida’s 4th and 5th District Courts of Appeal show that whether a downward departure (e.g. a lighter sentence) is warranted in a sexual battery by a person in familial or custodial authority case depends on the circumstances.

In Florida, sexual battery by a person in a position of familial or custodial authority is a very serious felony offense. For someone to be guilty of sexual battery, the State must prove all of the following beyond a reasonable doubt:

• The defendant engaged in an act that constituted sexual battery on the victim
• At the time, the victim was a minor 
• At the time, the defendant was in a position of familial or custodial authority to the victim

Sexual battery by a person in a position of familial or custodial authority is a first-degree, PBL felony in Florida. This means it is punishable by up to life in prison without the possibility of parole (Fla. Stat. 794.011(8)).

The impact of the “familial or custodial authority” enhancement is especially noticeable if the victim is between the ages of 12 and 17. 

If an adult (18+) engages in sexual activity that the alleged victim consented to (not legally, but was found to be a willing participant in the sexual activity), this is usually considered lewd or lascivious battery or lewd or lascivious molestation if the victim is 12 to 15. If the victim is 16 or 17, it is considered unlawful sexual activity with certain minors.

The above are second-degree felonies, punishable by up to 15 years in prison and a $10,000 fine. But if the defendant was in a position of familial or custodial authority at the time of the act, the offense is automatically enhanced to PBL felony sexual battery.

Important: Despite the fact that Florida defendants may be entitled to 12-person juries in capital sexual battery cases (post-2023), this does not apply to sexual battery by a person in a position of familial or custodial authority cases (only 6 jurors are to be impaneled). For more, click here.

But when is someone considered to have been in a position of familial or custodial authority? For a defendant to be considered in a position of familial or custodial authority, AT LEAST one of the following must have been true at the time of the offense (Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986)): 

• 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

Those in positions of familial authority typically include parents or other adult relatives. Those in positions of custodial authority may include religious leaders, family friends, sports coaches, and stepparents. Oliver v. State, 977 So.2d 673 (Fla. 5th DCA 2008)

Teachers and school faculty members are often “borderline” cases (e.g. can be considered in a position of familial or custodial authority, or not, depending on the circumstances). Hallberg v. State, 649 So. 2d 1355 (Fla. 1994)

As Hallberg makes clear, while sex offenses that occur during the school year and/or on school premises are likely to be considered sexual battery by a person in familial or custodial authority, this designation does not apply when school is “out” and the parties are off school grounds. The latter is likely to be charged as standard sexual battery or a lewd or lascivious offense.

If someone is found guilty in a sexual battery by a person in familial or custodial authority case, they are likely to seek a downward departure at sentencing. A downward departure occurs when the trial judge “departs” from the scoresheet sentence and imposes a “lighter” prison term than they otherwise would have, due to the presence of one or more mitigators (Fla. Stat. 921.0026).

Two cases make clear when downward departures are, and are not, warranted in a sexual battery by a person in familial or custodial authority to the victim case. The truth is that in Florida, it is very difficult to receive a downward departure sentence if someone is found guilty of sexual battery by a person in a position of familial or custodial authority.

However, rare cases have granted such a request from the defendant. One notable case is State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999) – which was decided by Florida’s 5th District Court of Appeal (Northeast Florida).

In Rife, the defendant was convicted of three counts of sexual battery on a minor by a person in custodial authority. Rife had sex multiple times with a 17-year-old girl while he was in a position of custodial authority to her (Rife took her in after she was homeless).

Prior 5th DCA decisions held that a minor (under 18) victim being a “willing participant” (e.g. “consenting” to the conduct, but not legally) could not be used as a mitigating factor. However, the trial judge in Rife’s case ordered a downward departure sentence, finding that the victim in the case enthusiastically had sex with Rife and was nearly eighteen.

The State appealed the downward departure sentence, citing State v. Smith, 668 So.2d 639 (Fla. 5th DCA 1996) to argue that Rife’s conduct was no “less illegal” regardless of the victim’s age, as she was a minor. Because minors cannot legally consent to sex, the State claimed the “victim was a willing participant” mitigator under 921.0026 could not be applied in Rife’s case.

But the 5th DCA disagreed, finding that the victim’s age and the fact that she pursued Rife made a downward departure sentence permissible. The 5th DCA framed the issue as follows:

“The issue squarely facing us is whether the willing participation of a seventeen-year-old young woman in a statutorily prohibited sexual relationship, although not a defense to the crime, can be considered by the judge in determining the appropriate sentence.”

Though the 5th DCA held that this cannot be considered in State v. Smith, 668 So.2d 639 (Fla. 5th DCA 1996), it changed its mind in Rife – writing:

“There is no question that a minor can consent. The legislature recognizes this but has decided that such consent shall not be a defense to the crime. But at the same time, it has provided that even though consent is not a defense, it may be considered by the court in determining an appropriate sentence. We find that a logic which holds that because consent may not be a defense, it cannot be a mitigator does not compute. A does not equal B nor is something true of A necessarily true of B. Defenses to a criminal charge and factors to be considered in mitigation are apples and oranges. Indeed, if consent were a defense to this criminal charge, there would be no need to mitigate in this instance. Although remorse is never a defense to a criminal charge, the legislature has made it a mitigating factor to be considered by the judge. Likewise, the legislature has made the willing participation of the victim a mitigating factor. And the legislature did not limit the applicability of this factor, as does the dissent, to only those victims “of age.”

In essence, the 5th DCA distinguished between the “legal” consent of a minor (cannot be used as a defense) and the “factual” consent of a minor (e.g. what the minor was actually thinking). 

If the minor victim was more “mature” (e.g. older) and wanted the activity to occur, according to the 5th DCA, a trial judge could reasonably find a basis for a downward departure (even though the defendant is legally just as guilty):

“In this case, there is ample support that in fact the young woman willingly participated in this sexual endeavor. Hence, the record supports the presence of this mitigating factor. Because of the sordid testimony more particularly described in the dissent, perhaps the closer question is whether the court abused its discretion in mitigating even though the mitigating factor is present. 

“The jury, being instructed to ignore the minor’s consent, convicted him of the offenses. Sentencing, however, is a different matter and involves the judge’s view of the evidence as it relates to mitigation. It is clear that the judge did not believe the young woman so immature that she could not agree to the encounter or that she was incapable of loving the defendant. The judge saw the minor, heard her testify and observed her demeanor, and was free to determine for herself the maturity (emotional and otherwise) of the young woman. We are not in that position. Further, insofar as it involves sentencing, the court was free to believe such witnesses and such testimony, or portion thereof, that she found credible. She might not have believed all of the “facts” set out in Judge Thompson’s dissent.”

“Quite clearly, a young woman does not become “mature” on her eighteenth birthday. Maturity is an evolving process. The court must consider the age and maturity of the victim when considering the willingness of her action and the consequence of that willingness. That is not to say that a young victim cannot willingly participate (suppose two children of about the same age “play doctor”); but it does mean that a court must consider the circumstances even more carefully depending on the victim’s age.”

As the majority noted, Judge Thompson of the 5th DCA wrote a vociferous dissent, in which he argued the minor faced various pressures to “consent” to sexual activity with Rife that eliminated any basis for a downward departure:

“Here the minor’s consenting to sexual activity was the result of her efforts to keep a roof over her head and food in her stomach, in addition to her emotional immaturity, and need for affection. Further, Rife was an experienced man who had held positions of authority and trust. As noted earlier, this case does not involve two minors, or an adult who is close in age to a minor, but a 49 year old man taking advantage of a 17 year old girl who was homeless and in need of affection and the necessities of life. Rife was a sexual predator in the truest sense of the word. He sexually used and abused the minor, and provided her with alcohol and drugs in return for sexual favors. There is no clear and convincing evidence to support the departure.”

Despite dissenting opinions filed by Judge Thompson and two others on the 5th DCA, State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999) remains in effect. A victim’s “willing participation” (even though they can’t legally consent) can act as a mitigating factor in sentencing for sexual battery by a person in a position of familial or custodial authority.

However, Rife is likely only to be applied in a context where the alleged victim was close to the age of consent. This was made clear in a case decided by Florida’s 2nd District Court of Appeal in the same year as Rife – State v. Hoffman, 745 So.2d 985 (Fla. 2d. DCA 1999).

There, Hoffman was sentenced to 15 years’ probation after he pled no contest to sexual battery on an 11-year-old minor victim (over whom he had custodial authority). The judge downward departed in Hoffman’s case on two grounds (under 921.0026):

• Testimony from an expert that Hoffman’s “inferior intelligence” rendered him incapable of appreciating the criminal nature of his acts and made Hoffman unable to conform his conduct to the law
• The trial judge’s belief that on at least one occasion, the 11-year-old victim was a “willing participant” in the alleged conduct

The State appealed the downward departure, arguing that neither basis was valid. The 2nd DCA affirmed the downward departure sentence of 15 years’ probation on the first basis – finding the downward departure based on the expert testimony was supported by a “preponderance of the evidence.”

However, the 2nd DCA rejected analogizing Hoffman’s case to Rife, finding that the “willing participation” of a child as young as 11 cannot serve as a mitigator for purposes of downward departure (due to the relative immaturity/lack of sexual awareness of the child):

“The second reason given for departure is without question invalid. We recognize that at least one court has found that under certain circumstances, a victim’s consent may serve as a mitigating factor in favor of downward departure for this offense, see State v. Rife, 24 Fla. L. Weekly D746, 733 So.2d 541 (Fla. 5th DCA 1999) (en banc); nevertheless, such a finding cannot obtain in the present case where the victim was merely eleven years old. The defendant in Rife, was convicted of three counts of sexual battery on a seventeen year old minor under his custodial care. …”

“There are significant factual distinctions between Rife and the present case, e.g., the victims’ ages, and circumstances under which Rife became the victim’s guardian. We conclude that “consent” to sexual activity given by an eleven-year-old is not a valid reason for the downward departure sentence. However, we affirm this case because Hoffman presented a valid reason for the departure sentence through the testimony of Dr. Carpenter.”

In sum, State v. Hoffman, 745 So.2d 985 (Fla. 2d. DCA 1999) and State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999) make clear when a downward departure based on “willing participation” of a victim can (and cannot) occur in a sexual battery by a person in familial or custodial authority case. 

If a victim is not approaching the age of consent (18), Florida courts are unlikely to find “willing participation” as a statutory mitigator. On the other hand, if the alleged victim is nearing the age of consent (e.g. 17), courts such as the 5th DCA have held a downward departure can be justified at sentencing.

It is important to note that downward departures are entirely discretionary. Just because there is a valid downward departure basis, does not mean a judge is required to impose a “lighter” sentence in the defendant’s case. To learn more, click here.

If someone is charged in a case involving alleged sexual battery 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 criminal 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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