What Constitutes Consent in Florida?

October 13, 2020 Sex Crimes


Rape and sexual assault occur almost 50 times every hour in the United States. Often these crimes go unreported, and sometimes there are false reports that undermine the legitimate outcry of victims. Unfortunately, this is one area of the law where the criminal justice system frequently gets it wrong. Rape and sexual assault incidents as well as false allegations are especially prevalent and troubling on college campuses, where the rate is much higher. A large portion of accusations and legitimate incidents occur due to confusion over what constitutes consent, as opposed to truly malicious behavior, but it is important to understand that distinction. A mistake that results in a criminal conviction can carry extremely steep consequences, it’s important to be prepared with the knowledge of what constitutes consent before any sexual encounter. The issue of consent under Florida Law is far more complicated than the average citizen is aware.

How is Consent Defined in Florida?

There are a few ways a sexual encounter can result in criminal charges when consent is not given by one of the individuals involved. First, consent cannot be present when a person is forced or coerced into the act. Second, consent can be impossible due to the permanent or temporary traits of the victim. It is the second category that is particularly complicated, because a victim can verbally and physically consent, but law enforcement and prosecutors can decide to file charges and argue in court that a crime was still committed.

In Florida, consent must be “intelligent, knowing, and voluntary” under Florida Statutes § 794.011. When a person is forced or coerced into a sexual encounter either by physical force, or by some coercive threat, consent is not present. Most people recognize that this is both wrong and illegal. Unfortunately, this type of encounter is very standardly thought of as the only type of sexual assault based on the prevalence in movies and television. The reality is that the second category is far more common.

A victim can be unable to consent either based on a permanent status that prevents consent ever being established, or there can be a temporary factor present that prevents consent being given.

Some individuals can never legally consent to sexual activity under Florida law.

  • Minors – Individuals under the age of 18 cannot consent to sexual activity unless they are 16-17 years old and the other consensual partner is between 16-23
  • Mentally Defective – Individuals with “mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct”
  • Conduct by a person of authority/ usually an agent of the government – This applies to a law enforcement officer, correctional officer or probation officer that has a place of authority over other individuals, those people cannot consent to sexual activity with the officer.

Other circumstances can render a person unable to consent at that time.

  • As mentioned above, a mental disease can be temporary in nature
  • Mentally Incapacitated – this includes people who are at that time under the influence of an intoxicating substance without their consent, this is traditionally referred to as “date rape”
  • Physically Helpless – those who are unconscious, asleep or unable to convey a presence of consent or lack thereof
  • Physically Incapacitated – This may also be a permanent issue, but applies to those who limited in their physical ability to resist or flee


There are a few defenses to sex crimes based on a lack of consent. This is not an exhaustive list though, as every case is unique. It’s important to discuss any accusations with an experienced sex crime defense lawyer who can create and execute the best possible strategy.

  • Sexual activity did not occur
  • Consent was given
    • Non-verbal consent (an act on the part of the other party indicating consent) for example performance of sexual acts; request to perform safe sex by requesting use of a condom; taking off clothes and disrobing consciously
    • Verbal consent (a verbal fact or act indicating consent) for example requesting whether or not an individual has a condom as a precursor to sex; asking to have sex; requesting one party to perform a sexual act;
  • “Romeo and Juliet” – Ordinarily a minor cannot consent to sexual activity in the state of Florida. In practice this blanket rule only applies to those under the age of 16. Individuals who are 16 and 17 years old can consent to sexual activity with a person who is between the ages of 16-23 and is not an authority figure. Authority figures include but are not limited to:
    • Family members
    • Teachers
    • School Staff
    • Law Enforcement Officers in a position of authority
    • Probation officers

Not knowing a partner’s age is not a defense, statutory rape is a “strict liability” crime. This means that even if a person tells you a false age, or you have reason to believe they are older, that is not a defense after a sexual encounter occurs.

Criminal Defense Lawyer near me

Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience representing those accused of sex crimes involving the issue of consent. The legal team at Pumphrey Law have decades of experience obtaining dismissals and not guilty verdicts in these types of cases. They are dedicated to defending the rights of clients in any circumstance and will fight for the best possible result. Call a Florida Sex Crime Defense Attorney today at (850) 681-7777 or send an online message today to discuss your rights during an open and free consultation with a criminal defense attorney in our legal team.

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