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Sexual Battery when Physically Incapacitated

Rape and sexual assault are called “Sexual Battery” under Florida criminal law. Many sexual battery charges involve an allegation that the victim was either physically incapacitated under section 794.011(1)(j), Florida Statutes, or physically helpless under section 794.011(1)(e), 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.

Rape cases can involve accusations between all kinds of people including people who are strangers, acquaintances, co-workers, neighbors, dating partners, or even married.

The alleged victim in many of these cases claims to have been severely intoxication from alcohol or impaired from drugs to the extent that the woman was “physically incapacitated.”

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 with specified circumstances of being physically helpless or incapacitated.

The issue in these cases is whether the accuser consented to the sex act or was really physically helpless or incapacitated.

When both the accused and the accuser are adults, the crime of sexual battery with specified circumstances is charged as a felony of the first degree, punishable by up to 30 years in Florida State Prison.

Call 813-250-0500 to discuss the case.


What is “Physically Incapacitated” under Section 794.011(1)(j)?

In order to show that the victim was physically incapacitated, the prosecutor with the State Attorney’s Office must present evidence that the victim was “bodily impaired or handicapped and substantially limited in ability to resist or flee.” § 794.011(1)(j).


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.       f.  (Victim) was physically incapacitated.

         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 incapacitated” under § 794.011(1)(j), Fla. Stat., the term “physically incapacitated” means that a person is bodily impaired or handicapped and substantially limited in his or her ability to resist or flee an 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.

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