1005 N. Marion St.
Tampa, FL 33602
813.250.0500
Sammis Law Firm

Sexual Battery when 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, and the case was decided on the grounds that the evidence demonstrated that the victim was a “willing participant” in the alleged criminal conduct. Id. at 1074.

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, with specified circumstances of being so physically helpless or physically incapacitated that it prevented the accuser from consenting to the sex act.

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.”


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:

          1.      a. (Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)]; or

                   b. (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.

         2.       a. (Victim) was physically helpless to resist.

         3.    (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 10, 2020.

Contact Form

Free Case Evaluation

Schedule a consultation

Schedule a Consultation
Schedule a Free Consultation at Our Office

Call us to schedule a time to talk with the attorneys in the office or over the phone.

Office: 813.250.0500 Fax: 813.276.1600

Contact Our Office

Contact Our Office
Our Tampa Office

Sammis Law Firm 1005 N. Marion St. Tampa, FL 33602 » Get Directions

Attorneys

Staff

Side Menu