Is the Death Penalty for Capital Sexual Battery Constitutional?

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

Does Florida’s statute allowing the death penalty for sexual battery on a minor stand up to constitutional scrutiny? This article will explore the content of Florida’s capital sexual battery statute, discuss the Florida and U.S. Supreme Court’s ruling on the constitutionality of the death penalty for sexual battery, and likely reasons for the statute’s passage.

In 2023, Florida’s legislature passed a bill making sexual battery on a child under the age of 12 a capital offense. Under Fla. Stat. Section 794.011, if someone over the age of 18 commits the offense of sexual battery on a child 11 years of age or younger, they are eligible to receive the death penalty.

Note: 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.

As this statute is just two years old, nobody has yet been sentenced to death in Florida after being convicted for capital sexual battery. However, the law allows for an adult defendant to be sentenced to death for the offense of sexual battery on a child under 12 years old if:

• Within 45 days of the defendant’s arraignment, the prosecutor announces intent to seek the death penalty
• The prosecutor provides a notice with that announcement 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 

Because a charge under Fla. Stat. Section 794.011(2)(a) is a capital offense, a defendant is entitled to a jury of twelve under Florida law. This contrasts with Florida law on all non-capital offenses, which mandates a jury of only six. Defendants in Florida are entitled to juries of just six members if charged with life felony or PBL felony sexual battery offenses such as: 

• 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

Note: Though juries (not judges) are required to find all facts (with the exception of the sole fact of a prior conviction) that may influence a defendant’s sentence, non-capital cases do not involve a “penalty phase.”

In the wake of Florida’s new capital sexual battery statute, many have asked if the death penalty can be constitutionally given for rape – including of a child. The answer to this is no, according to current Florida Supreme Court and U.S. Supreme Court precedent.

Under Fla. Stat. Section 921.1425(1), the Florida Legislature has expressly stated that the passage of the 2023 capital sexual battery statute is in direct conflict with the previous rulings of both the Florida and U.S. Supreme Courts. The statute reads:

“The Legislature finds that a person who commits a sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age carries a great risk of death and danger to vulnerable members of this state. Such crimes destroy the innocence of a young child and violate all standards of decency held by civilized society. The Legislature further finds that Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and that Kennedy v. Louisiana, 554 U.S. 407 (2008), was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

The legislature first addressed the Florida Supreme Court’s Buford decision in 1981. Buford, a 19-year-old, was accused of the sexual battery and murder of a 7-year-old girl. He challenged his conviction to the Florida Supreme Court, which upheld the trial court verdict.

Buford received the death penalty on the two grounds that he had:

• Committed sexual battery upon the child in a heinous, atrocious, and cruel manner (capital offense)
• Committed first-degree murder of the child (capital offense)

While the Florida Supreme Court confirmed Buford could receive the death penalty (on the grounds he was found guilty of first-degree murder), it struck down the trial court’s imposition of the death penalty on the additional basis of capital sexual battery of a child. 

Citing the U.S. Supreme Court’s Coker v. Georgia decision, the Buford majority ruled that rape (including of a minor) without murder of the victim cannot result in the death penalty. This is because the death penalty is considered cruel and unusual punishment for a non-murder offense. Buford v. State, 403 So. 2d 943 (Fla. 1981)

Though Coker had found the death penalty for the rape of an adult woman unconstitutional, Buford extended this to sexual battery of a child. Nearly 30 years later, the U.S. Supreme Court followed Buford’s logic in Kennedy v. Louisiana, ruling all state laws unconstitutional which allowed for the death penalty in cases involving sexual battery of a minor (if the minor was not also murdered.

The legislature’s decision to pass Fla. Stat. Section 794.011(2)(a), despite the U.S. Supreme Court’s current prohibition of such laws, indicates Florida may wish to challenge Buford and Kennedy. If a defendant in Florida is sentenced to death for sexual battery despite the Florida Supreme Court and the U.S. Supreme Court’s rulings, these courts may choose to reconsider the issue of whether the death penalty for child sexual battery (or sexual battery generally) is truly unconstitutional.

In sum, Fla. Stat. Section 794.011 allows the death penalty for sexual battery committed on a minor under the age of 12 by an adult. But the Florida and U.S. Supreme Courts currently hold that the death penalty for sexual battery of a child is unconstitutional under the Eighth Amendment’s prohibition of cruel and unusual punishment, even if there are aggravating circumstances.

As the state legislature is aware of this, the likely aim behind this legislation is to set up a legal battle that will cause these courts to reconsider their precedents. Given that the Florida and U.S. Supreme Courts are trending towards originalism and conservatism, this effort may succeed, but only time will tell. 

If someone is arrested and formally charged in Florida in a case involving alleged sexual battery, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

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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