When a criminal defense lawyer reviews a sexual battery case for possible defense, he/she will invariably analyze the victim’s claim, statements, and other evidence to determine if consent is an issue. Depending on the type of sexual battery charge you are facing will depend on whether or not this will make a difference. In some sexual battery cases, consent is not a defense, such as when the alleged victim is under 12 years of age.
When a jury considers evidence regarding consent, they will consider the testimony of the victim and other witnesses presented by the prosecution. In some cases, medical evidence of ripping, tearing, or other lacerations discovered in the victim’s vagina or anus can be used as evidence that force was applied. When there is evidence of force, the implication is that the victim did not consent.
In many cases, consent is simply a matter of the victim’s say so versus the defendant’s. Experienced criminal lawyers refer to these types of cases as “he said/she said.”
In yet other cases, Florida law allows a jury to consider mental incapacitation or mental defect when determining whether or not the alleged victim consented to the sex act and whether such consent was voluntary, knowing, or intelligent.
Under Florida law, “mental incapacitation” occurs when a person is temporarily unable to control/appraise his/her conduct due to the administration of any intoxicating substance, narcotic, or anesthetic against their consent, such as a date rape drug. Mental incapacitation can also occur when any other act is done against the victim’s will that renders him/her unable to control/appraise his/her conduct.
When a person is considered to have a mental defect or to be mentally defective, Florida law states that such persons suffer from a mental defect or mental disease that causes the alleged victim to either be permanently or temporarily unable to appraise his/her behavior.
Sexual Battery – Victim 12 Years of Age or Older
Use of Deadly Weapon or Great Physical Force
Adding the element of great force to a sexual battery charge makes the case much more serious. In these types of cases, the prosecution has the burden of proving the following legal elements beyond a reasonable doubt:
- The alleged victim was 12 years of age or older at the time of the offense.
- The defendant did a sex act with/upon the victim in which either party’s sex organ(s) penetrated or had union with the anus, vagina, or mouth of the other party, or
The defendant did a sex act with/upon the victim in which an object penetrated or had union with the victim’s anus or vagina. - While committing the above act or actions, the defendant either used a deadly weapon or threatened to use a deadly weapon, or
While committing the above act or actions, the defendant “used actual physical force likely to cause serious personal injury.” - The victim did not consent to the sex acts in question.
Therefore, in essence, this crime amounts to an unconsensual sex act where a weapon was used to either hard or threaten harm to the victim. This type of offense is one of the most serious crimes on the books because it involves two forms of illegal conduct.
First, the defendant is committing a sex offense against another person. At the same time, the defendant is also committing a crime of violence against that person by either harming them with a weapon or using one to threaten harm.
The combination of sexual violation and violence makes for an extremely aggravated type of offense. As one might imagine, people who are convicted of sexual battery using a weapon or great physical force are typically sentenced to very lengthy terms of prison.