What counts as sexual consent under Florida law?

In Florida, sexual assault charges often hinge on the issue of consent. While consent may seem straightforward—a simple "yes" or "no"—it's a far more nuanced concept under Florida’s consent laws. 

The experienced criminal defense lawyers at the Law Offices of Robert David Malove understand Florida's complex legal standards for consent in sex crimes cases. When you retain us, we’ll mount a robust sexual assault defense strategy to fight the charges and protect your rights, freedom, and future.

What Is Consent Under Florida Law?

Florida Statute § 800.04 defines consent as intelligent, knowing, and voluntary consent. It specifically doesn’t include submission based on coercion. 

Under Florida’s consent laws for sexual activity, consent requires all parties to willingly and knowingly engage in the act. Significantly, a lack of verbal or physical resistance doesn't imply consent. Neither does the alleged victim's past sexual history with the defendant or others.

Factors That Can Invalidate Consent Under Florida’s Consent Laws

Several factors can negate what might appear to be the victim’s consent in a sexual assault case:

Age of the Participants

The legal age of consent in Florida is 18 years old. Those under 18 can't lawfully consent to sex. An exception is the "Romeo and Juliet" law, which provides that if one party is at least 14 and the other is no more than four years older, the older individual may face lower penalties or be exempt from sex offender registration if they are charged with statutory rape or other sex crimes.

Mental Capacity

People with a mental illness or diminished capacity are deemed unable to consent. Mental incapacity can stem from a disability or impairment. Penalties increase for sexual offenses against those with cognitive impairments.

Intoxication

If the victim was intoxicated due to the consumption of alcohol or drugs at the time of the sexual encounter, the court will determine whether their intoxication affected their ability to consent. If they couldn’t understand the nature of their consent, any sexual encounter would not be considered voluntary.

Manipulation or Coercion

Consent must be given freely. If the alleged victim was pressured, threatened, or manipulated into sex, there's no legal consent.

Can You Be Charged With a Sex Crime If Consent Is Withdrawn?

Even if someone initially agrees to intimacy, if they withdraw consent, any continued sexual activity may be non-consensual under Florida’s consent laws. These situations are highly fact-specific and depend on the details of your communication with your accuser.

Why Consent Disputes Are So Complex in Sex Crimes Cases

Consent cases rarely have witnesses beyond the two people involved. They often hinge on credibility battles between he-said/she-said versions of what occurred. This can be especially hard to accept when you know the allegations are false. 

Other factors can make consent cases even thornier:

• Inconsistent statements due to trauma. Victims' memories can be influenced by the emotional impact of the event, resulting in variations in their accounts. This can make a sexual assault harder to prove in court.
• Misinterpretation of nonverbal cues. Consent is often communicated through body language and nonverbal signals, which can be ambiguous. These signals can be interpreted differently by each party and contribute to misunderstandings about consent.
• Impairment from alcohol or drugs. When one or both parties are under the influence, it can be challenging to determine if consent was freely and knowingly given. Impairment can affect memory, judgment, and communication, making it difficult to reconstruct what happened and assess whether there was legal consent.
• Delayed reporting. Victims may wait days, weeks, or even months to report a sexual assault for a variety of reasons, including fear, shame, or uncertainty about what happened. This delay can make it more challenging to gather physical evidence and witness statements.
• Complicated relationship dynamic. When the parties have a prior relationship (e.g., friends, dating, or married), their history together can influence the interpretation of the events and make it more difficult to determine if there was genuine consent. 

What Evidence Can You Use to Prove the Sexual Encounter Was Consensual? 

When defending against sex crime allegations, showing that the sexual activity was mutual and voluntary is a strong sexual assault defense strategy that our skilled criminal defense lawyers may use to try to get your charges dismissed or reduced to a less serious offense. Here are some ways we may prove this: 

• Texts and digital communication. Messages, social media posts, or other digital evidence from before or after the alleged assault may demonstrate flirtatious behavior, sexual interest, or plans to meet up, supporting the argument that the encounter was consensual. However, it's essential to note that prior consent does not necessarily imply consent on the specific occasion in question.
• Witness testimony. If others saw the victim and interacted with them before or after the alleged assault, their testimony about the interactions, body language, or statements made can provide context about the nature of the encounter and whether there were signs of mutual agreement. Character witnesses may also be used to bolster your credibility or cast doubt on your accuser's claims.
• Inconsistencies in the accuser's account. If the alleged victim's story changes over time or conflicts with physical evidence or other witness statements, our attorneys can argue that their credibility is questionable and that there is reasonable doubt about whether a crime occurred. Even minor discrepancies can be used to poke holes in the prosecution's case.
• Lack of physical evidence of force. While not conclusive, an absence of injuries, DNA evidence, or signs of struggle may support your defense that the sexual activity was consensual and not forced or coerced. However, it's crucial to recognize that many sexual assaults do not result in visible physical trauma, so a lack of injury does not necessarily mean a crime did not occur.

Defending Against Sexual Assault Allegations in South Florida

Sexual assault allegations are devastating, especially when you believed the encounter was consensual. Given Florida's nuanced consent laws, it's critical to have our knowledgeable South Florida criminal defense lawyers at the Law Offices of Robert David Malove assess your case. Attorney Robert Malove is a Florida Bar Board Certified Criminal Trial Law lawyer with decades of experience successfully representing clients facing sexual assault charges.

Our lawyers understand the high stakes of a sex crimes conviction. We'll thoroughly investigate, gather exculpatory evidence, and craft a tailored defense to fight for your future.