FAQs About Attempted Sexual Battery in Florida

September 23, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, attempted sexual battery is a very serious offense (Fla. Stat. 794.011 and 777.04). However, it is often misunderstood. This blog will answer frequently asked questions about the crime of attempted sexual battery in Florida.

#1 – What is attempted sexual battery?

Attempted sexual battery occurs when someone intends to commit the crime of sexual battery and “overtly acts” towards completing it, but falls short of completing the actual offense.

#2 – What must be proven for someone to be guilty of attempted sexual battery?

For someone to be guilty of attempted sexual battery, the State must prove the following two elements beyond a reasonable doubt:

• The defendant had the specific intent to commit a sexual battery
• The defendant committed an overt act towards the commission of sexual battery but failed to complete the actual offense

#3 – What must someone actually attempt to do?

A completed sexual battery occurs when either of the following are true and the victim did not consent:

• The defendant engaged in oral, anal, or vaginal penetration of (or union with) the sexual organ the victim
• The defendant engaged in anal or vaginal penetration of (or union with) the victim by using an object (including a finger), except for a bona fide (legitimate) medical purpose

#4 – Must the State prove specific intent to commit a sexual battery?

Yes, it is. For someone to be guilty of attempted sexual battery, the State must prove that they specifically intended to commit sexual battery – not any other sex crime. Donovan v. State, 821 So.2d 1099 (Fla. 5th DCA 2002).

If someone tried to commit another offense (e.g. lewd or lascivious battery, molestation, conduct) but did not complete it, they are not guilty of attempted sexual battery under Donovan.

#5 – How are “penetration” and “union” defined?

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

Though attempted penetration or union both make someone guilty of sexual battery, penetration is treated more harshly than union for sentencing purposes. For more on this, click here.

#6 – Is attempted sexual battery a felony?

Yes, attempted sexual battery is a felony. However, the severity of the charge depends on the sexual battery that was attempted. As a general rule, attempt is punishable by one degree below the completed felony under Florida law. This means:

• For capital sexual battery (victim under 12, defendant 18 or older), attempt is a first-degree felony (up to 30 years in prison and a $10,000 fine)
• For life felony, PBL felony or first-degree felony sexual battery (minor victims over 12, use of deadly weapon, familial/custodial enhancement, etc.) attempt is a second-degree felony (up to 15 years in prison and a $10,000 fine)
• For second-degree sexual battery (adult perpetrator and adult victim without use of force/other aggravating factors), attempt is a third-degree felony (up to 5 years in prison and a $5,000 fine)

#7 – Can traveling to meet a minor be considered attempted sexual battery?

It depends. Traveling to meet a minor is a separate offense under Fla. Stat 847.0135(4). Courts have held that traveling to meet a minor is not usually an “overt act” necessary to support an attempted sexual battery charge. Mizner v. State, 154 So. 3d 391 (Fla. 2d. DCA 2014)

Traveling to meet a minor over 12 (even if it was ultimately an undercover officer posing as a minor) can serve as the basis for an attempted lewd battery charge. Bist v. State, 35 So. 3d 936 (Fla. 5th DCA 2010)

Moreover, if someone travels with the intent to engage in intercourse with a child under 12 (or a child over 12 against the child’s will), this can be considered attempted sexual battery rather than attempted lewd battery. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

For more information on traveling to meet a minor in Florida, click here. 

#8 – What does an “overt act” mean in the context of attempted sexual battery?

An over act is defined as an act that goes beyond mere preparation to commit the offense. Mizner v. State, 154 So.3d 391 (Fla 2d. DCA 2014). 

Mere preparation involves devising or arranging the means to commit a crime. An overt act consists of movement towards committing the crime that comes after mere preparation, but does not have to be the final act before the offense is completed. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Essentially, someone does not have to be physically on top of someone and about to commit a sexual battery to be guilty. However, they must go beyond simply “planning” it (e.g. thinking about it) – they must take a concrete step towards completing the offense.

#9 – What are some examples (and non-examples) of attempted sexual battery?

Some examples of attempted sexual battery may include:

• A announces to B that he intends to rape her in an alley. He rushes over and grabs her, but a passerby notices and A runs away
• C grabs D, who does not wish to have sex with him, and pins her down – before he can actually complete the sexual battery, E walks in the door and calls the police
• F forces G onto the ground against her will and attempts to have her perform her oral sex on him, but H interrupts before this can happen and calls 911

In all of these cases, sexual battery would have occurred but was not completed. Moreover, the perpetrator performed an overt act towards the commission of the offense.

However, examples of conduct that are unlikely to be considered attempted sexual battery include:

• A fantasizes about having sex with B, who they know isn’t interested in them, but A doesn’t actually do anything other than thinking 
• M repeatedly makes lewd jokes and propositions to N at work, but never actually attempts to force her to have sex
• L buys condoms and alcohol while thinking about forcing P to have sex with him, but never acts to make this happen

As you can see, these situations are quite different – there is no “overt act” towards committing sexual battery, so the crime has not occurred.

#10 – Does a conviction require sex offender registration?

Yes, someone convicted of attempted sexual battery must register as a sex offender. There is no possible “Romeo and Juliet” exception (unlike lewd battery), because sexual battery (or attempt) involves a lack of willingness by the victim to engage in the conduct.

For more information on sex offender and sexual predator designations in Florida, click here.

#11 – What if someone changes their mind before the sexual battery is completed?

Someone “changing their mind” and deciding not to go through with a sexual battery may or may not be a defense. It depends on the facts of a case. 

For example, if someone intends to commit sexual battery and takes a substantial step towards the completion of the offense (e.g. jumping on top of the victim and taking off their clothes), they are likely still guilty even if they ultimately do not commit the sexual battery.

By contrast, if someone drives to the victim’s house intending to commit sexual battery and changes their mind before taking further action, this is unlikely to be considered sufficient to support the charge (it remains “mere preparation”).

#11 – What are some defenses to attempted sexual battery?

There are many potential defenses to attempted sexual battery in Florida, one or more of which may apply in any given case. These include:

• Lack of specific intent/intent to commit another offense (e.g. lewd or lascivious, not sexual battery)
• No overt act/no substantial step (mere talk, fantasy, or planning)
• Consent (if the alleged victim was an adult, not incapacitated, and agreed to the activity knowingly, intelligently and voluntarily)
• Alibi/mistaken identity
• Statute of limitations (where applicable)
• Procedural defenses (e.g. moving to suppress a defendant’s post-arrest statements, motions to exclude unlawfully obtained evidence)
• Involuntary intoxication: Rare, but may apply in cases where a defendant did not know they were consuming a substance/did not know its nature – and it caused them to act in a manner that may have constituted attempted sexual battery. However, voluntary intoxication is not a defense (Fla. Stat. 775.051).

In sum, attempted sexual battery is a serious felony in Florida that is charged one degree below a completed sexual battery. Someone must specifically intend to commit a sexual battery and act overtly towards this goal, but fall short of completing the actual offense.

By understanding the answer to the above FAQs, someone will be much better informed about the offense of attempted sexual battery in Florida. In the event someone is charged with sexual battery or attempted sexual battery, it is vital to seek out aggressive and experienced legal counsel as soon as possible. 

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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