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The Definition of Consent in Florida

By Hager & Schwartz, P.A.

September 23, 2019

Florida Consent Laws

Due to a large number of sex scandals uncovered in Hollywood and beyond in the past decade, sex crimes are now regularly on the hearts and minds of the American public. At the center stage of these thoughts and feelings is an all-important term: consent.

One could argue that the limitations and boundaries of consent have never been more important as they are in this social and political climate. Determining the definition and practical application of consent is so crucial because it’s the line that separates a sex crime from an innocent act.

That’s why we at Hager & Schwartz have created this blog post, to define and help people examine what consent is and when it may apply to real-life circumstances.

Florida’s Consent Law Definition

As stated in Florida law, consent means, “intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.”

Based on this definition we can say that consent consists of three parts:

  • Intelligent: The person agrees to and commits the act with sound judgment.
  • Knowing: The person understands every aspect of the potential act and agrees to all of it.
  • Voluntary: The person is not pressured to commit or continue the act at any time.

Therefore, acts that are committed intelligently, knowingly, and voluntarily by all parties are consensual. However, let’s examine other aspects of Florida law to determine the boundaries of consent in particular circumstances.

Physically Helpless, Mentally Defective, & Mentally Incapacitated

Someone who is physically helpless, mentally defective, or mentally incapacitated cannot legally consent to sexual acts. Therefore, it’s important to understand the legal definition of these terms.

Physically helpless: Someone who is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. Under this definition, sexually touching a significant other while they are asleep could result in criminal penalties.

Mentally defective: Someone who has a mental disease or defect which renders him or her temporarily or permanently incapable of appraising the nature of his or her conduct. Therefore, certain mental disorders may bar certain people from giving consent to sexual acts.

Mentally Incapacitated: Someone who is temporarily incapable of appraising his or her own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.

As you can see, there are many situations where people cannot legally consent to sexual acts. In most of the situations listed above, one’s ability to consent is fairly black-and-white; however, in other situations, that’s not necessarily the case.

Physically Incapacitated in Florida

The physically incapacitated part of Florida’s definition of consent is arguably the portion of the law that is most heavily debated.

Someone is defined as physically incapacitated (and thus unable to consent to a sexual act) when “bodily impaired or handicapped and substantially limited in ability to resist or flee.” What makes someone bodily impaired: is it when alcohol dampens one’s physical capabilities to resist, even though they didn’t want to during the act? Is it the use of ropes or other binding tools during a sexual act, even though these tools were used consensually?

These questions create much confusion about the exact nature of when someone is either consenting or not consenting to a particular action based on physical incapacitation. Unfortunately, these questions can only be answered on a case-by-case basis, which is why anyone accused of committing a sex crime should hire experienced criminal defense for their cases.

Florida Legal Age of Consent

In Florida, the age of consent is 18; therefore, anyone younger than 18 cannot legally consent to sexual acts in most circumstances. However, Florida has a close-in-age exemption where anyone 23-years-old or younger can engage in legal sexual activity with a minor aged 16 or 17. Therefore, a 23-year-old can have consensual sexual relations with a 16-year-old in Florida.

It should be noted that Florida does not recognize ignorance or belief of someone’s age to be a viable defense for underage sexual interactions. Therefore, if someone is accused of sexual assault of a minor, that person cannot defend their case by saying they never asked for the minor’s age.

Additionally, if someone is accused of sexual assault of a minor, it’s not a defense that the person assumed that the minor was older then they actually were. Therefore, if you have any suspicions about the person’s age, it’s best to assume they are a minor and steer clear of the situation.

Have You Been Accused of a Sex Crime?

As you can see, consent is not a simple as many say it is, and this can lead to situations where people are surprised to find that they are the target of an accusation of sexual assault. If you or a loved one is accused of a sex crime and you need experienced representation, look no further than Hager & Schwartz. Our team of award-winning attorneys can help you fight for your rights.

Call (954) 840-8713 now for a free consultation for your case.