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Sexual Battery

July 28, 2015

In Florida, assaults that are sexual in nature are punishable under the state’s sexual battery statute. A conviction for sexual battery can have lifelong consequences for both the victim and defendant, so it is vital that all parties have a sound understanding of the law in this area. If you have been charged with sexual battery, it is essential to retain the services of an experienced criminal defense attorney.

Sexual Battery Defined

In Florida, sexual battery includes:

  • The 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; however, sexual battery does not include an act done for a bona fide medical purpose.

Penalties (General)

The penalties for a conviction for sexual battery vary depending on the age of the offender and the age of the victim, and range from second degree felonies to capital felonies. Depending on the severity of the offense, penalties include a prison sentence of up to fifteen years and a fine of up to $10,000 (for a second degree felony), a death sentence (for a capital felony), or something in between.


There are several defenses that may be useful to a person charged with sexual battery. Possible defenses include misidentification, insufficient evidence, consent, and false allegations.


Sexual battery defendants can argue that there were problems with the evidence that helped identify them as the offender and may request re-testing of any forensic evidence used against them in court. This could include semen, DNA samples, hair combings, and clothing. However, each defendant should keep in mind that re-testing may work against them, if the re-testing only confirms the identification of the defendant.

Insufficient Evidence

If there is no physical evidence to prove the sexual battery, a defendant may be able to argue that there is insufficient evidence to prove the crime beyond a reasonable doubt.


Consent is one of the most common defenses against a charge of sexual battery, although it is only available as a defense for an adult victim who does not suffer from a mental defect. In order for the defense of consent to apply, the consent must have been intelligently, knowingly, and voluntarily given.

If the victim was drugged or incapacitated in some way, that incapacitation would make consent impossible, and the defense thus unavailable. The use of the date rape drug gamma hydroxybutyric (GHB) is one common cause of mental incapacitation in sexual battery cases. The failure of the accuser to show proof of physical resistance through injury will not be considered consent. Furthermore, marriage is no longer considered automatic consent to sexual relations.

False Allegations

The defense of false allegations is a possibility for a defendant who believes that he or she has been falsely accused for ulterior purposes such as jealousy, revenge, anger, or an effort to interfere with a child custody dispute. This legal defense often overlaps with an insufficient evidence argument.

If you have been charged with sexual battery, the advice of an attorney is important to help you avoid or minimize the devastating repercussions that such a charge can have in your personal and professional life. Please contact West Palm Beach criminal defense attorney William Wallshein for a free consultation.

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