What is Attempted Sexual Battery in Florida?

June 9, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, sexual battery is a very serious felony offense. Under Fla. Stat. Section 794.011, 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.

However, attempting the criminal act of sexual battery is itself a crime. This article will discuss the offense of attempted sexual battery in Florida, potential penalties, and various defenses that can be raised to such a charge.

Though attempted sexual battery is often considered a lesser-included offense of sexual battery, it can be charged independently of any other crime under Fla. Stat. Section 777.04, as it is a form of criminal attempt. But what constitutes attempted sexual battery under Florida law?

An attempted sexual battery is said to occur if the following occur:

• The defendant had a specific intent to commit a sexual battery 
• The defendant committed an overt act towards the commission of the offense of sexual battery that fell short of completing it

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 or measures necessary to commit a crime. An overt act consists of some movement towards committing the crime that comes after mere preparation – but it does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Under Florida law, attempt is punishable by a criminal penalty one degree below the completed offense. This means that:

• For capital felony sexual battery (adult on a minor under the age of 12), attempt is punishable as a first-degree felony, carrying up to 30 years in prison and a $10,000 fine
• For life felony sexual battery, PBL felony or first-degree felony sexual battery, attempt is considered a second-degree felony, punishable by 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 or other aggravating factors), attempt is considered a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine

Florida’s courts have noted that before someone may be convicted of attempted sexual battery, the State must prove beyond a reasonable doubt the defendant had a specific intent to commit the particular crime of sexual battery. This means the defendant must have intended to orally, anally, or vaginally penetrate, or have union with, the sexual organ of a victim and must have directly moved towards doing so. Donovan v. State, 821 So.2d 1099 (Fla. 5th DCA 2002)

Cases where specific intent may be established for the purposes of proving attempted sexual battery may include:

• Someone announces they intend to “rape” a victim before rushing over and grabbing them 
• Someone is interrupted just before they are about to engage in an act constituting penetration or union with an unwilling victim (or minor)
• Someone commands a victim to perform a penetrative sex act they do not wish to engage in, and moves to make this happen, but the act is not completed

Put simply, attempted sexual battery involves actions directed towards achieving penetration or union with a victim’s mouth, anus, or genitals that are interrupted before completion. Kaczmar v. State, 104 So.3d 990 (2012) 

Florida’s courts have attempted to define what constitutes an overt act for the purpose of attempted sexual battery charges. In Donovan, the defendant was accused of pulling the victim (a kidnapped juvenile) towards his groin area after telling her he wanted her to perform oral sex on him. The victim fled before he completed the sexual battery. 

The Fifth District Court of Appeal upheld Donovan’s conviction, holding that his conduct was indeed an “overt act” sufficient to constitute attempted sexual battery.

Conversely, in Mizner, the Second District Court of Appeal held that communication with a child victim online – even if the communications describe an act that would constitute sexual battery upon the child – cannot be the sole basis for charging attempted sexual battery. While such messages can be used to establish intent in the event an overt act occurs, communications do not constitute an overt act under the statute. Mizner v. State, 154 So.3d 391 (Fla 2d. DCA 2014)

What if someone engages in chats with a minor describing their specific intent to engage in an act constituting sexual battery, then travels to meet the minor and is arrested? 

Florida’s Supreme Court held in Berger v. State, 259 So.3d 933 (2018) that traveling can be considered an overt act towards the commission of sexual battery, and thus, support a charge of attempted sexual battery. This includes if a child is an undercover officer participating in a sting operation.

Berger reiterated the specific intent requirement, noting that unless the defendant traveled for the purpose of engaging in a prohibited penetrative act with a minor, an attempted sexual battery is not committed. In ruling traveling to meet a minor can be considered an overt act for purposes of charging attempted sexual battery, the Florida Supreme Court receded from its 1998 ruling in State v. Duke, which held the opposite.

Various defenses to the crime of attempted sexual battery exist. These may include:

• Lack of specific intent to commit the offense of sexual battery
• Entrapment, if a defendant traveled to meet an alleged minor that was actually an undercover officer
• No overt action/no substantial step towards commission
• Consent (if an adult victim)
• Alibi or identity challenge if a defendant can establish they weren’t present

It is critical to consult with an experienced and aggressive criminal defense attorney as soon as possible to explore which of these defenses may be relevant in someone’s case.

In sum, attempted sexual battery is a serious felony in Florida. Attempted sexual battery in Florida occurs when a person, with the specific intent to commit sexual battery, commits an overt act toward committing the sexual battery – but ultimately does not complete the offense. 

Florida’s courts have heard various cases defining what constitutes attempted sexual battery. It is typically punished one degree below the completed offense. Moreover, various defenses exist to the alleged offense of attempted sexual battery.

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. The attorneys at Pumphrey Law have decades of experience fighting sex charge cases to win for clients across Florida.

Sex Crime 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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