Age of Consent for Statutory Rape in Florida
For sexually motivated crimes, the “age of consent” often dictates when an otherwise consensual act is a crime. Generally, the age of consent in Florida is 18 years old. This means Florida law allows a person who is 18 years old to consent to sexual activity with a person of any age, provided the person is not under the age of 18 years old. If both persons are under the age of 24, then the age of consent is effectively 16 years old under most circumstances.
Under Florida law, statutory rape and other crimes involving sexual activity are “strict liability” crimes which means that ignorance of the other person’s age is not a defense. Even an honest and bona fide belief that the victim is older than the age of consent is not a defense. Even if the victim lies about their age, it is not a defense.
Florida’s Romeo & Juliet Law for Close in Age Exceptions
In some circumstances, Florida law might permit a person under the age of 24 years old to engage in sexual activity with 16 or 17-year-olds (sometimes called “close-in-age exemptions” or “Romeo & Juliet Law”). For example, Section 794.05 provides:
(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
Outside of those Romeo and Juliet exceptions, any sexual activity with someone under 18 can be prosecuted under various statutes including:
- § 794.05 – Unlawful Sexual Activity with Certain Minors
- § 800.04 – Lewd or Lascivious Offenses
Other laws in Florida create enhanced penalties for sexual activity with any person under the age of 16 years old, and even more enhanced penalties for anyone under the age of 12 years old.
The Age of Consent When Both Participants are Minors
If a person engages in consensual sexual activity with a minor, even if they are minors themselves, they may be charged with a crime. For instance, in State v. J.A.S., 686 So.2d 1366, 1369, (Fla. 5th DCA) (1997), the Fifth District Court of Appeal held that minors cannot consent to sexual activity even with another minor. The court held that sexual activity between minors is prohibited whether or not each of the participants believes that they have consented.
The Florida Supreme Court, in Jones v. State, 640 So.2d 1084 (Fla. 1994), ruled that Section 800.04, F.S., was not unconstitutional as applied to two 15-year-old boys who engaged in “consensual” sex with two 12-year-old girls. The constitutionality of this statute was upheld. As a result, even a minor child may be charged with violating the statute.
In Acevedo v. Williams, 985 So. 2d 669, 670, 2008 Fla. App. LEXIS 9880, *3-5, 33 Fla. L. Weekly D 1681, the Florida Legislature has distinguished between 16- and 17-year-olds, on the one hand, and younger children, on the other.
For example, it noted that under § 794.05(1), Fla. Stat. (2007), “A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree . . . .”
Under § 800.04, Fla. Stat. (2007), “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”
For the version of section 794.05 at issue in B.B. v. State, 659 So. 2d 256, 257, 260 (Fla. 1995), the court held that Florida’s statutory rape statute could not constitutionally apply in case of 16-year-old lovers, provided: “Any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree . . . .” § 794.05(1), Fla. Stat. (1991).
Section 794.05 was amended in 1996 so that only persons over the age of twenty-four, instead of “any person,” could be guilty of violating the statute. See Ch. 96-409, § 1, at 2937, Laws of Fla.
Appellate courts have also acknowledged the capacity of 16- and 17-year-olds to consent to sexual intercourse. “The sexual battery statute . . . requires proof by the State . . . that the [17-year-old] victim did not consent to the battery.” McIlwain v. State, 402 So. 2d 1194, 1196 (Fla. 5th DCA 1981).
In Soukup v. State, 760 So. 2d 1072, 1074 (Fla. 5th DCA 2000), the court declined to order entry of judgment under section 794.011(5) where the state failed to prove the 16-year-old victim did not consent.
The Florida Supreme Court in Khianthalat v. State, 974 So. 2d 359, 362 (Fla. 2008), left little doubt as to its views on whether 16- or 17-year-olds have the capacity to consent to sexual intercourse, finding:
Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven. Subsections (3), (4), and (5) define sexual batteries involving victims twelve or older. To constitute sexual battery under those subsections, the State must prove the victim did not consent. This requirement recognizes that a person twelve or older has the ability to consent.
The “twelve or older” formulation represents a change from the view expressed in Schmitt v. State, 590 So. 2d 404, 411 n. 10 (Fla. 1991):
“Obviously, [unmarried] minor children are legally incapable of consenting to a sexual act in most circumstances.”
The absence of any reference to consent in sections 794.011(2)(a) and (2)(b), Florida Statutes (2007), does not eliminate lack of consent as an element of the offense of sexual battery upon a child under twelve, but reflects an irrebuttable presumption that children under twelve cannot consent. See Khianthalat, 974 So. 2d at 362.
Read more how attorneys for sex crimes in Florida defend clients charge with serious crimes.
When the Police Lie About the Age of Consent During Interrogations
The “age of consent” is mentioned in other cases in Florida including in Light v. State, 20 So. 3d 939 (Fla. 1st DCA 2009). In the Light case, the police interrogated the defendant for unlawful sexual activity with minors.
The defendant confessed only after the police misrepresented the law concerning the age of consent as sixteen rather than eighteen. Id. at 941. When, in fact, the age of consent was 16 only if the defendant was younger than age 23. As a result, the misrepresentation of law rendered the defendants’ confessions involuntary.
The interrogating officer’s misstatement of law was not the only factor that weighed in favor of a finding that the confession was involuntary. The investigator knew that the defendant was older than 23. The court agreed that the investigator’s misstatement of law was meant to cause the defendant to think his actions were lawful and, therefore, that confessing could not lead to arrest or prosecution. Id. at 941.
Ultimately, however, the court held that suppression was warranted based on that misstatement “coupled with” the interrogator’s false promise to the defendant that, even if he admitted to having sexual relations with a 16-year-old girl, he could go home that day. Id. at 940-41.
Additional Resources
Florida’s Age of Consent Laws – Visit the website of the Florida Senate to find an interim report from September of 2011 by the Committee on Criminal Justice. The reports examine’s Florida’s “ROMEO AND JULIET” exemptions for sexual activity between two young people who are close in age. The report stated the issue as follows:
Florida’s “Romeo and Juliet” law was created during the 2007 Legislative Session to address concerns about high school age youth being labeled as sexual offenders or sexual predators as a result of participating in a consensual sexual relationship. The stigma and consequences that come with that classification have lifelong consequences that affect things such as an offender’s future employment opportunities, an offender’s ability to attend his or her own child’s school functions, and where an offender can live. The registry provides no clear distinction between the young “Romeo and Juliet” sex offenders who had consensual sex and the offenders who harm children and pose a real risk to society. Section 943.04354, F.S., creates a mechanism for this group of offenders to file a motion or petition in state court for removal of the registration requirement if they meet certain criteria while still complying with federal law requirements set forth in the Adam Walsh Act. Because this mechanism does not conflict with the Adam Walsh Act, federal grant money from the Edward Byrne Justice Assistance Grant is not jeopardized. The purpose of this issue brief is to review the “Romeo and Juliet” law, provide data regarding the offender population using the mechanism created in the law, and compare the law with that of several other states.
This article was last updated on Monday, November 3, 2025.