Sexual Battery while Physically Helpless
Many sexual battery charges involve an allegation that the victim was either:
- physically helpless under section 794.011(1)(e), Florida Statutes; or
- physically incapacitated under section 794.011(1)(j), Florida Statutes.
Whether the prosecutor with the State Attorney’s Office presented sufficient evidence at trial to support a conviction with an enhancement for physical helplessness or physical incapacitation is generally a jury question. The conviction will not be reversed on appeal if there is competent substantial evidence supporting the jury’s finding.
Many of these cases involve severe intoxication from alcohol or impairment from drugs. The theory is that a person so drunk or drugged suffers from a form of bodily impairment that substantially limited her ability to resist or flee.
In some cases, a woman’s drunken or drugged state does not rise to the level of incapacitation contemplated by the statute.
For example in Soukup v. State, 760 So. 2d 1072, 1074 (Fla. 5th DCA 2000), the alleged victim and some of her friends hired a stripper who engaged in lewd conduct with the alleged victim, who was intoxicated at the time. Id. The witnesses to this conduct did not describe it as anything other than consensual. Id. at 1074. The case was decided on the grounds that the evidence demonstrated that the victim was a “willing participant” in the alleged criminal conduct. Id.
Attorney for Sexual Battery in Florida
If you were accused of sexual battery or rape, then contact an experienced criminal defense attorney. Our attorneys fight serious criminal charges of sexual battery in Tampa, FL.
Many of these sexual battery cases involve an allegation of specified circumstances because the alleged victim claims to have been physically helpless or physically incapacitated which prevented consent to a sex act.
Our main office is located in downtown Tampa, FL, in Hillsborough County. We have a second office in New Port Richey in Pasco County. Our attorneys fight sexual battery and rape cases throughout the greater Tampa Bay area including Hernando County, Pasco County, Pinellas County, Hillsborough County and Polk County, FL.
Contact an experienced criminal defense attorney to discuss the case. During the free initial consultation, we can explain the elements of the crime charged, the evidence normally needed to prove the charge, and the best defenses to fight the accusation.
Call 813-250-0500 to discuss the case.
“Physically Helpless” under Section 794.011(1)(e)
In order to show that the victim was physically helpless, the prosecutor with the State Attorney’s Office must present evidence at trial that the victim was “unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act” at all relevant times. § 794.011(1)(e).
According to the Florida Sexual Violence Benchbook:
“By defining physically helpless in this way the legislature chose to focus on a victim’s ability to communicate as opposed to her ability to physically resist an attack.
This approach is logical because the crimes of sexual battery essentially deal with the victim’s consent, and there is no legal requirement for a victim to attempt to physically resist an attack.”
In the dissenting option in State v. Sedia, 614 So. 2d 533, 536, 1993 Fla. App. LEXIS 54, *6-8, 18 Fla. L. Weekly D 271, Judge Farmer disagreed “with Judge Stone’s conclusion that, in using the words ‘physically helpless to resist,’ the legislature may have meant to include circumstances akin to those here, in which the victim is, by reason of bodily orientation, deprived of the opportunity, rather than the ability, to sense or anticipate the commencement of the act and hence communicate her prior lack of consent, is certainly a plausible reading of the statutory words.”
Instead, Judge Farmer reasoned:
“…the statutory text is equally capable of being limited to that recognizable state of unconscious, physical and nervous inactivity characterized by a lessened responsiveness to external stimuli–i.e., conditions such as sleep, paralysis, stupor, coma or trance–in which communication is usually thought to be impossible, rather than merely avoided or delayed.
Under this additional meaning, the legislature intended that there be a lack of present physical awareness of external stimuli to which one is then and there capable of responding in some way.
In this sense, “physically helpless to resist” connotes the present inability to initiate voluntary movement of one’s own muscle systems.
Where the one meaning is just as plausible as the other, we are obliged by section 775.021(1), Florida Statutes (1991), to adopt that construction which favors the accused, not the one adopted by Judge Stone which favors the State.”
Id.
Jury Instructions for Sexual Battery with Specified Circumstances
The jury instructions for sexual battery under specified circumstances are found in Chapter 11.3 for crimes charged under §§ 794.011(4)(a), (4)(b), (4)(c), and (4)(d), Fla. Stat. provide:
To prove the crime of Sexual Battery Under Specified Circumstances, the State must prove the following five elements beyond a reasonable doubt:
- The defendant committed an act [upon] [with] (victim) in which either:
- the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)]; or
- (Defendant) committed an act [upon] [with] (victim) in which the [anus] [vagina] of [(victim)] [(defendant)] was penetrated by an object. [The definition of “an object” includes a finger.]
- [Victim] was physically helpless to resist; and
- Defendant’s act was committed without the consent of (victim).
Under § 794.011(1)(a), Fla. Stat., the term “consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent does not mean the failure by the alleged victim to offer physical resistance to the offender.
In cases in which it is alleged that the “victim was physically helpless to resist” under § 794.011(1)(e), Fla. Stat., the term “physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act.
As explained in § 794.022, Fla. Stat., and the jury instructions, the alleged victim’s lack of chastity is not a defense to the crime charged.
This article was last updated on Friday, January 21, 2022.
