Sexual Battery vs. Sexual Assault in Florida

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

In Florida, sexual battery (Fla. Stat. Section 794.011) and sexual assault are often used as interchangeable terms. However, there are key differences between these offenses. To the surprise of many, there actually is no crime called “sexual assault” in Florida law.

However, if a sexual assault occurs (commonly thought of as a nonconsensual sexual touching without penetration), it is likely to be charged as either battery if the victim is over the age of 18, or a lewd or lascivious offense if the victim is a child.

This blog will discuss the elements of both sexual assault and sexual battery in Florida, as well as the penalties someone may face if convicted of these and potential defenses.

Sexual Battery in Florida

Sexual battery is one of the most serious crimes in Florida, charged under Fla. Stat. Section 794.011.

For someone to be proven guilty of sexual battery, the State must prove all of the following elements 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 
• The act was not performed for a bona fide (real) medical purpose

Note: “Union” involves 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).

If sexual battery occurs, the penalties for this vary significantly depending on the age of the victim and the age of the defendant. Fla. Stat. 794.011 outlines the following penalties:

• 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.
• If the victim was 12 or older (but under 18) and the sexual battery involved the use of a deadly weapon with severe force, the offense 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 in prison (mandatory minimum 25 years)
• For a victim aged 12 to 18 with coercion or threat: A first-degree felony, punishable by 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 term “familial authority” in Florida is defined as a relationship that creates “a recognizable bond of trust” similar to that between a child and a father, grandfather, uncle, or guardian. “Custodial authority” implies a duty or obligation to care for the child, often in loco parentis (in place of a parent), and requires both custody and control. Crocker v. State, 752 So.2d 615 (Fla. 2d. DCA 1999).

Under Florida law, all sexual penetration with a child under 12 is classified as capital sexual battery. However, if the alleged victim who is a minor 12 or older and the act did not involve force or coercion (even though the child cannot legally consent), the offense is more likely to be classified as a lewd or lascivious offense (such as lewd or lascivious battery, a second-degree felony).

But this does not apply for a defendant who is alleged to have familial or custodial authority (such as a stepparent, teacher while on school property, a religious figure who often supervises the child, etc.). Even if the alleged act did not involve force or coercion and the alleged victim did not resist, sexual battery by a person in familial or custodial authority (794.011(8)(b)), this cannot be reduced to a lewd or lascivious offense. 

If someone is alleged to have committed sexual battery, various defenses are available, one or more of which may apply in a given case. These include:

• False allegations: If there is no corroborating evidence of the event and the victim has a motive to lie, this can be a particularly effective defense.
• Consent: Not applicable to children (but applicable to encounters involving an alleged victim over the age of 18). Under limited circumstances, “consent” (apparent lack of force or coercion) may play a role in reducing sexual battery to a lewd or lascivious offense, but this is not a complete defense in any case where the victim cannot legally consent.
• Alibi/mistaken identity: A particularly effective defense 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, motioning for the suppression of evidence, 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.)
• Contesting the validity or probative value of forensic evidence (discussing transferability of DNA, etc.)

Though there are various valid defenses to a sexual battery charge, defenses that are not legally valid include:

• Mistake of age (even if the alleged victim misrepresented their age)
• Consent (if the victim was a minor)
• Sexual history of the victim (generally inadmissible unless someone other than the accused was the source of relevant physical evidence, such as semen, in the case)
• Victim initiated the contact
• Voluntary intoxication/getting drunk or high (Fla. Stat. 775.051)

Sexual Assault in Florida

In contrast to sexual battery, sexual assault is not a distinct crime in Florida. However, it is often characterized as any nonconsensual, non-penetrative sexual touching (penetration would make it sexual battery). If “sexual assault” occurs in Florida, it is likely to be charged as either battery or aggravated battery (Fla. Stat. 784.03) or a lewd or lascivious offense (if the victim is <16).

Examples of “sexual assault” that are likely to be charged as battery may include any of the following:

• A person grabs another adult’s buttocks, breasts, or genitals over clothing without consent
• A person forcibly kisses another adult without consent
• A person touches another adult’s thigh or rubs their back or neck in a sexualized manner, but without exposure or intent to sexually gratify in front of children

Battery is a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine.

However, battery becomes aggravated battery (second-degree felony punishable by up to 15 years in prison and a $10,000 fine) if a battery occurs under any of the following conditions:

• The battery causes great bodily harm, permanent disability, or disfigurement
• The battery involves the use of a deadly weapon (gun, knife, etc.)
• The victim of the battery is a person who is pregnant, knowing or having reason to know she is pregnant

If a sexual assault occurs and the offense involves a child victim (under the age of 16), it is likely to be charged as a lewd or lascivious offense.

Under Fla. Stat. Section 800.04, various lewd or lascivious offenses exist under Florida law, which include: 

• Lewd or lascivious battery: Often called “statutory rape,” involves sexual penetration (without the use of force or coercion) of a minor victim between the ages of 12 and 15.
• Lewd or lascivious molestation: Intentionally touching the breasts, genitals, or buttocks of a child under 16, or forcing the child to touch the offender, in a sexual manner.
• Lewd or lascivious exhibition: Intentionally exposing genitals, masturbating, or engaging in sexual conduct in the presence of a child under 16.
• Lewd or lascivious conduct: Intentionally touching a child under 16 in a lewd manner, or soliciting the child to commit a lewd act.

Given the above, if a nonconsensual and nonpenetrative touching occurs and the victim is a minor, it is likely to be considered lewd or lascivious molestation under Florida law. 

Lewd or Lascivious Molestation

Lewd or lascivious molestation is a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine) if the defendant is an adult, and a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine) if the defendant is a minor (under 18).

If someone is charged with sexual assault as lewd or lascivious molestation (Fla. Stat. Section 800.04(5)), the State must prove all of the following beyond a reasonable doubt:

• The defendant intentionally touched the breasts, genitals, genital area, buttocks or clothing covering them of the victim without the victim’s consent, or enticed or solicited the victim to touch them in this manner (enticement still requires physical contact under Sylvaince v. State, — So.3d —- (Fla. 6th DCA 2025))
• The victim was under 16 years old
• The touching was lewd or lascivious (“wicked,” “unchaste,” or done with the intent of sexual gratification)

If someone is accused of lewd or lascivious molestation, various defenses exist to the charge, one or more of which may be applicable in a given criminal case. These may include:

• Challenges to child hearsay (CPT interviews, etc.)
• Lack of sexual intent behind the touching (such as roughhousing between friends and family members, a simple hug, etc.)
• False allegations
• Alibi/mistaken identity
• Procedural challenges (Miranda, motions to suppress, etc.)
• Lack of corroborating evidence

In sum, sexual assault and sexual battery (Fla. Stat. Section 794.011) are two separate offenses. Though they are often confused, it is critical to note that sexual assault is not a distinct crime in Florida. 

Sexual battery (Fla. Stat. 794.011) involves a nonconsensual penetrative sexual act using genitalia or an object (often called rape). It is a very serious felony, punishable by up to life in prison or death if the victim is under 12 (though the death penalty is legally currently unconstitutional for rape).

By contrast, sexual assault is generally understood to be a nonconsensual but nonpenetrative sexual touching. As there is no “sexual assault” statute, it is usually charged in Florida as either battery, aggravated battery, or lewd or lascivious molestation (if the victim is under the age of 16). 

The penalties for sexual assault can range from a first-degree misdemeanor punishable by 1 year in jail (simple battery) to a second-degree felony punishable by up to 15 years in prison (aggravated battery and lewd or lascivious molestation).

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.

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