Different Number of Jurors, Same Potential Punishment: Sexual Battery in Florida

June 6, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, sexual battery is a very serious felony. Depending on the offense, sexual battery is punishable by the death penalty (under Florida law). An adult who commits a sexual battery upon a child under the age of 12 is eligible for the death penalty if:

• Within 45 days of a defendant’s arraignment, the State announces intent to seek the death penalty
• The prosecutor provides a notice to the court that lists the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt
• The defendant is convicted at trial of capital sexual battery, and a jury of twelve has at least 8 jurors vote during the trial’s penalty phase for capital punishment 

Under Fla. Stat. Section 794.011(1)(h), sexual battery is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object, except for acts done for bona fide medical purposes,” without consent.

But according to the Florida and U.S. Supreme Courts (Buford v. State, 403 So. 2d 943 (Fla. 1981) and Kennedy v. Louisiana, 554 U.S. 407 (2008)), a defendant can receive a maximum penalty of life in prison for sexual battery (including sexual battery of a child). As the death penalty is currently unconstitutional for rape, making the maximum permissible penalty life in prison, some have raised questions regarding jury sizes in Florida sexual battery cases. 

If someone is charged with capital sexual battery, they are to receive twelve jurors at trial under Florida law. However, if they are charged with a life felony or PBL felony sexual battery, they are only entitled to six jurors – in line with Florida’s requirement for non-capital felony cases.

Fla. Stat. Section 794.011 authorizes the death penalty for capital sexual battery committed by a defendant over the age of 18, if the victim is a child under 12 years of age. But no defendant has yet been sentenced to death under this statute – and state and federal courts both hold the death penalty for sexual battery to be a violation of the Eighth Amendment prohibition on cruel and unusual punishment.

As Florida courts and lawmakers are bound by the Florida and U.S. Supreme Courts, the current maximum permissible penalty for capital sexual battery (unless Buford and Kennedy are reversed) is life in prison. This is also the minimum penalty for a conviction of capital sexual battery (Fla. Stat. Section 794.011(2)(a)).

But various other sexual battery offenses under Florida carry a potential sentence of up to life in prison if a defendant is convicted, including when:

• A person under the age of 18 commits a sexual battery on someone under 12 years of age
• A person commits a sexual battery upon someone 12 or older and either uses or threatens to use a deadly weapon, or actual physical force likely to cause physical injury
• A person found to be in a position of familial or custodial authority commits a sexual battery upon a minor between the ages of 12 and 17

Despite potentially facing the same maximum prison sentence for someone charged with capital sexual battery (life in prison), anyone charged for the above offenses is entitled only to a jury of six members. This inconsistency is an issue unique to sexual battery law in Florida. 

In Buford, by contrast, the Florida Supreme Court affirmed the constitutionality of the death penalty for a capital (first-degree) murder charge. As someone charged with capital murder can permissibly face the death penalty, this makes capital murder distinct from all other murder charges – which carry a maximum sentence of life in prison.

Because Florida currently authorizes the death penalty for capital sexual battery, it qualifies as a capital offense – meaning 12 jurors must be impaneled as a matter of law. But in practice, some defendants who may be acquitted (or have a mistrial) if a 12-person jury is impaneled, may be convicted if there is a six-person jury. This is because, as Justice Neil Gorsuch of the U.S. Supreme Court observed:

“An array of studies … suggest that 12-member juries deliberate longer, recall information better, and pay greater attention to dissenting voices.” – Khorrami v. Arizona, 143 S.Ct. 22, 26-27  

The Florida and U.S. Supreme Courts have held juries of six are constitutionally permissible – in spite of British common law consistently recognizing that a jury should be composed of 12 members. Williams v. Florida, 399 U.S. 78 (1970).

But since defendants in sexual battery cases may face life in prison without being charged with capital sexual battery (if charged with life felony or PBL felony), defendants who are charged with capital sexual battery may actually benefit in some circumstances relative to a life felony or PBL felony charge. 

This is because capital sexual battery defendants are eligible to receive the same maximum punishment (life in prison), but are entitled to a jury of 12, which may be more likely to acquit or fail to reach a verdict than a jury of six.

In sum, individuals charged with life felony or PBL felony sex offenses are entitled to a jury of just six members. This contrasts to those charged with capital sexual battery, who must receive a jury of twelve members under Florida law.

While this is coherent in theory due to the distinction between capital and non-capital felonies, it is not as coherent in practice. Individuals charged with life felony or PBL felony sexual battery offenses under Fla. Stat. Section 794.011(3) face the same maximum penalty as those charged with capital sexual battery (life in prison, according to Buford and Kennedy), but will receive a jury only half the size, which may be more likely to convict the accused.

This creates a paradox – capital sexual battery charges may actually benefit a defendant in certain circumstances relative to those charged with a noncapital sexual battery offense that is also punishable by life. It is yet to be seen how, or if, this will be addressed by Florida’s courts and lawmakers.

In the event someone is charged with sexual battery, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida who have been charged with marijuana-related crimes.

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. Do Police Have to Record a Confession in Florida?

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