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Consent

Florida Statute § 794.011 defines consent as “intelligent, knowing, and voluntary consent and does not include coerced submission.” The statute explicitly states that the term is not to be deemed or construed to mean the failure by an alleged victim to offer physical resistance to an alleged offender.

The age of consent in Florida is 18, although the state’s “Romeo and Juliet” does allow people as young as 16 years of age to legally consent to sex with another person no older than 23 years of age. Consent is often a central issue in many alleged sex crime cases because alleged offenders believe that they cannot be held criminally liable because the alleged victim consented to sexual activity.

Lawyer for Consent Issues in Tallahassee, FL Sex Crime Cases

Have you been arrested or do you think that you might be under investigation for a criminal sexual offense in North Florida? No matter how confident you are in your innocence, you should still exercise your right to remain silent until you have contacted an experienced criminal defense attorney such as Pumphrey Law.

Don Pumphrey and the Tallahassee criminal defense attorneys at Pumphrey Law aggressively defend clients accused of sex crimes in communities throughout the Florida Panhandle and Big Bend region, such as Crawfordville, Monticello, Quincy, Tallahassee, Bristol, and many others. You can have our lawyers review your case and answer all of your legal questions when you call (850) 681-7777 to schedule a free, confidential consultation.


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Overview of Consent in Leon County


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Consent Issues in Florida Sexual Battery Cases

Sexual battery (also known as rape) is the criminal sexual offense that most commonly involves disputes about consent. The definition of consent is established the sexual battery statute and is described as intelligent, knowing, and voluntary consent.

In other words, a victim, at the time of the offense, was in possession of his or her mental capacities (i.e. not under the influence of alcohol or a controlled substance), knew what he or she was consenting to, and did so on his or her own free will without any influence from the alleged offender or other parties.

When there is a disagreement between the alleged offender and the victim about whether a sexual encounter was consensual, an investigation may be able to help the alleged offender establish proof of consent—or at least present facts that are not inconsistent with casual sex.

Some of the issues that may be investigated include:

  • The testimony of any witnesses who saw the alleged offender or victim before or after the incident in question;
  • The time, if at all, that the victim filed a police report; and
  • The review of any statements made on social media accounts (Facebook, Twitter, Instagram, etc.).

It is important to remember that when a person is charged sexual battery, the prosecutor is required to prove beyond a reasonable doubt (the highest possible legal standard) that not only was there oral, anal, or vaginal penetration by, or union with, the sexual organ of the alleged offender or the anal or vaginal penetration of the alleged victim by any other object, but also that the alleged offender’s act was committed without the consent of the alleged victim.

If a jury has any doubt about whether the victim consented to the sexual activity, it must find the alleged offender not guilty.


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Age of Consent Offenses in Leon County

Even when certain people provide intelligent, knowing, and voluntary consent to sexual activity, they may not be legally able to do so. Alleged offenders can be charged with any number of sex crimes for engaging in prohibited sexual conduct with parties who are not legally able to consent to sexual activity.

The age of the alleged offender and victim play important roles in determining the grade of the crime when a person is accused of sexual battery.

Some of the other crimes that a person may be charged with for engaging in sexual acts with minors include:

  • Lewd or Lascivious Battery
    Under Florida Statute § 800.04(4), it is a second-degree felony punishable by up to 15 years in prison and a fine of up to $10,000 if a person engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity. If the offender has been previously convicted of an enumerated offense in the statute, this crime becomes a first-degree felony punishable by up to 30 years in prison and a fine of up to $10,000.
  • Lewd or Lascivious Molestation
    Florida Statute § 800.04(5) establishes that a person who intentionally touches, in a lewd or lascivious manner, the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

    •  If the offender is less than 18 years of age and the victim is 12 years of age or older but less than 16 years of age, then the crime is charged as third-degree felony, punishable by up to five years in prison and a fine of up to $5,000.
    • If the offender is less than 18 years of age and the alleged victim is less than 12 years of age, or the alleged offender is 18 years of age or older and the victim is 12 years of age or older but less than 16 years of age, then the crime is a second-degree felony. Although the crime can become a first-degree felony if the offender has been previously convicted of an enumerated offense in the statute.
    • If the offender is 18 years of age or older and the alleged victim is less than 12 years of age, lewd or lascivious molestation is a life felony punishable by life in prison or death.
  • Lewd or Lascivious Conduct
    Under Florida Statute § 800.04(6), it is a third-degree felony if an offender less than 18 years of age intentionally touches a person under 16 years of age in a lewd or lascivious manner; or solicits a person under 16 years of age to commit a lewd or lascivious act. If the alleged offender is 18 years of age or older, lewd or lascivious conduct is a second-degree felony.
  • Traveling To Meet a Minor
    Florida Statute § 847.0135(4) establishes that it is a second-degree felony if an offender travels any distance either within this state, to this state, or from this state by any means, attempt to do so, or cause another to do so or to attempt to do so for the purpose of engaging in any illegal act described in Chapter 794, Chapter 800, or Chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any aforementioned illegal act or to otherwise engage in other unlawful sexual conduct with a child; or solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any aforementioned act or to otherwise engage in any sexual conduct.
  • Lewd or Lascivious Conduct
    Under Florida Statute § 800.04(6), it is a third-degree felony if an offender less than 18 years of age intentionally touches a person under 16 years of age in a lewd or lascivious manner; or solicits a person under 16 years of age to commit a lewd or lascivious act. If the offender is 18 years of age or older, lewd or lascivious conduct is a second-degree felony.
  • Unlawful Sexual Activity with Certain Minors
    Florida Statute § 794.05 establishes that it is a second-degree felony if an offender 24 years of age or older engages in sexual activity with a person 16 or 17 years of age.

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Consent Resources in Florida

  • What Consent Looks Like | Rape, Abuse & Incest National Network (RAINN)
    RAINN identifies itself as “the nation’s largest anti-sexual violence organization” and claims to have helped more than 2.5 million people since 1994. It created and operates the National Sexual Assault Hotline in partnership with more than 1,100 local sexual assault service providers across the country. On this section of the RAINN website, you can learn more about what consent is, how consent works in real life, and what positive consent looks like.
  • Rape and Sexual Consent | Information For Teens
    Planned Parenthood Federation of America, Inc. (better known simply as Planned Parenthood) is a nonprofit organization providing reproductive health care in the United States. Visit this section of the Planned Parenthood to find information about why consent matters, what consent looks like, and giving consent. Links are also included that provide information about help for rape victims.

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Pumphrey Law | Tallahassee Sex Crime Defense Attorney

If you believe that you might be under investigation or you were already arrested for an alleged sexual crime in North Florida, it is in your best interest to refuse to make any statement to authorities until you have legal counsel. Pumphrey Law represents residents and visitors in Jefferson County, Liberty County, Wakulla County, Leon County, and Gadsden County.

Don Pumphrey and the criminal defense lawyers in Tallahassee at Pumphrey Law will work tirelessly to help you achieve the most favorable outcome to your case that results in the fewest possible penalties. Call (850) 681-7777 or complete an online contact form to have our attorneys provide an honest and thorough evaluation of your case during a free initial consultation.


This article was last updated on Friday, September 15, 2017.