Does Sexual Battery in Florida Require Physical Resistance By a Victim?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, someone may face a sexual battery charge (Fla. Stat. 794.011) even if a victim did not physically resist the act. A common question is – if the victim was not incapacitated and did not physically attempt to stop the alleged battery, can someone still be convicted? 

The answer is yes, because the legal question is whether or not the victim consented – not whether they physically resisted. This blog will explore the law in Florida regarding when sexual battery occurs, even when a victim does not physically resist. 

Prior to 1974, Florida law broadly defined sexual battery as “carnal knowledge of a person by force and against his or her own will.” Before the law changed, courts generally required there to be some level of physical force involved in a sexual battery – or at a minimum, awareness of a victim that a sexual act was occurring that they objected to.

However, Florida’s current law on sexual battery (Fla. Stat. 794.011) is far more broad. Rather than focusing on whether physical force was employed or whether the victim’s conscious will was for the sex act to occur (or not occur), the question is one of whether the victim actually consented. 

As of 2025, sexual battery is defined broadly in Florida as:

• Oral, anal, or vaginal penetration by (or union with) the sexual organ of another, or anal or vaginal penetration of another by any other object (including a finger) 
• Without the consent of the victim 
• Excluding acts done for a bona fide medical purpose

For someone to be guilty of sexual battery in Florida, the following elements must be proven beyond a reasonable doubt:

• The defendant engaged in oral, anal, or vaginal penetration of (or union with) the sexual organ of another, or anal or vaginal penetration by any object (including a finger)
• The victim did not consent to the act (regardless of whether or not they physically resisted)
• The act was not performed for a bona fide (real) medical purpose

“Union” entails the physical contact of the genitals or an object with a relevant portion of the victim’s anatomy (mouth, anus, vagina), whereas “penetration” requires actual entry into the relevant part. Seagrave v. State, 802 So. 2d 281 (Fla. 2001).

Penalties for sexual battery vary if someone is convicted (depending on the facts of a case), but it is considered a very serious felony in all cases:

• If the victim is under the age of 12 and the defendant is over 18, sexual battery is a capital felony punishable by death or a mandatory minimum of life in prison. Florida’s capital sexual battery statute is currently under legal scrutiny as the Florida and U.S. Supreme Courts have held that the death penalty cannot be a penalty for rape (including of a minor) if the victim does not die. (Kennedy v. Louisiana, 554 U.S. 407 (2008); Buford v. State, 403 So. 2d 943 (Fla. 1981))
• If the victim was 12 or older (but under 18) and the sexual battery involved the use of a deadly weapon with severe force, sexual battery is punishable by up to life in prison and a $15,000 fine.
• If the victim was under the age of 18 and the defendant was an adult in a position of familial or custodial authority to the victim, sexual battery is a first-degree felony punishable by up to life (PBL) in prison (mandatory minimum 25 years)
• If the victim was under the age of 18 and the sexual battery involved coercion or a threat, sexual battery is a first-degree felony (up to 30 years in prison and a $10,000 fine)
• For standard sexual battery (adult on adult, involving force or coercion necessary for the charge but no weapons or severe force), a second-degree felony punishable by up to 15 years in prison and a $10,000 fine

Note: The penalties for sexual battery may be even more serious if someone is sentenced under PRR, HFO, HVFO, or any other sentencing enhancement under Fla. Stat. 775.082 or 775.084.

Lack of physical resistance by the victim does not negate a sexual battery if the act was not done with the victim’s consent. Consent in Florida is defined as “intelligent, knowing, and voluntary agreement” – and explicitly states that consent cannot be said to have occurred if someone is the victim of coerced submission or fails to offer physical resistance (Fla. Stat. 794.011(1)(a)).

As noted above, Florida’s courts have observed that the current statutory definition of consent reflects a shift from older legal standards that required victims to demonstrate resistance, such as fighting or screaming, to prove lack of consent. Russell v. State, 576 So.2d 389 (Fla. 1st. DCA 1991)

Because of this change, Florida law has recognized another category of sexual battery victims: those who are “physically helpless to resist.” The state’s sexual battery statute provides a specific definition of “physically helpless” – the victim is unconscious, asleep, or otherwise physically unable to communicate unwillingness to an act. 

Victims who are physically restrained but still able to communicate unwillingness do not meet the statutory definition of “physically helpless to resist.” Coley v. State, 616 So.2d 1017 (Fla. 3d. DCA 1993). Whether a victim is physically unable to communicate unwillingness is a factual determination for the jury. State v. Sedia, 614 So.2d 533 (Fla. 4th DCA 1993) 

Though Florida law has a broad definition of “consent”, the State bears the burden of proving lack of consent beyond a reasonable doubt. Evidence of the victim’s resistance is no longer required to establish lack of consent – but the State must present substantial, competent evidence to support the claim that the victim did not intelligently, knowingly, and voluntarily consent to the sexual act. Soukup v. State, 760 So.2d 1072 (Fla. 5th DCA 2000)

However, this does not matter if the victim is a minor. If any sexual penetration or union occurs with a victim under 12, it is automatically classified as capital sexual battery. If the victim is between 12 and 15, sexual penetration is classified as sexual battery if the penetration or union resulted from force or coercion – or lewd or lascivious battery (800.04) if force or coercion was not involved. 

Despite the fact that physical resistance is not required for sexual battery to occur, there are still various defenses that exist to a sexual battery allegation. These include:

• False allegations 
• Consent: Not applicable to children. Under limited circumstances, “consent” (apparent lack of force or coercion) may play a role in reducing sexual battery to a lewd or lascivious offense (victim aged 12 to 15), but this is not a complete defense in any case where the victim cannot legally consent. Consent also cannot be given by a victim helpless to resist. 
• Alibi/mistaken identity: Effective if little to no evidence supports the alleged offense occurring and evidence indicates that the defendant was either not present or otherwise could not have committed the alleged act (GPS, phone records, etc.)
• Procedural challenges (Improper Miranda warnings/invalid waivers, motioning for the suppression of evidence, etc.)
• Lack of evidence (no DNA, witnesses, etc.)
• Challenging child hearsay (such as motioning to exclude CPT interview tape based on Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011), ensuring cross-examination of the alleged child victim under Crawford v. Washington, etc.)

In sum, consent in Florida is defined as “intelligent, knowing, and voluntary consent,” and does not include coerced submission. Examples of coerced submission may include:

• Someone threatens to injure a relative of the victim if they do not have sex with them
• Someone threatens to withhold something the victim needs (food, medication, etc.) unless they agree to sex
• Someone pulls out their phone and threatens to share nude footage of the victim on social media if they refuse to have sex

Florida’s sexual battery statute explicitly states that consent “shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.”

Sexual battery in Florida occurs any time oral, anal, or vaginal penetration by (or union with) the sexual organ of another – or anal or vaginal penetration of another by any other object – without the consent of a victim. It does not include acts done for a bona fide medical purpose, such as a gynecologist performing legitimate medical testing (including on a minor female).

If someone is charged in a case involving alleged sexual battery or sexual assault, 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.

  Social Share