Understanding “Consent” As A Defense To Sexual Assault

If you are charged with some form of Sexual Assault, you are probably wondering how the law defines “consent” and how it will apply to your case.  This blog explains it.  Under Florida law, giving consent means that someone has knowingly and voluntarily agreed to an act. But it’s also important to realize that there are several nuances to what is and isn’t truly consent and how those nuances could impact a criminal case in Florida.

What Consent Isn’t?

While it’s fairly easy to understand, at least in general terms, what consent means, it’s a lot clearer when discussing what consent is not.

  • Consent is not coerced submission.  For example, if someone agrees to a sexual act because they are threatened with violence, this is not consent.
  • Consent also is not lack of resistance.  For example, if someone is sexually assaulted, the lack of attempting or mounting resistance doesn’t equal consent.

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. These definitions are available under  Florida Statutes § 794.011.

Not Everyone Can Consent

In order for an individual to consent to a sex act, they must have “agency”, which means the legal ability, granted by the State of Florida, to agree to acquiesce to an act. As such, certain individuals are unable to give their consent under specific circumstances.

In the State of Florida, a person under the age of 18 years-old cannot consent to sexual activity with a person who is in a position of familial or custodial authority. For example, a person could not consent to sexual activity with a foster parent. Florida Statutes § 794.011 (8). If a person in a familial or custodial authority engages in activity with a minor, they could be charged with sexual battery.

Even if a person is an adult (over 18 years-old), they may not have the power to consent to sexual activity under certain circumstances. For example, in the State of Florida, an incarcerated person would be unable to consent to sexual activity with a law enforcement officer or correctional officer. Florida Statutes § 794.011(5)(e)(7).  Also, if a person consents to sexual activity because they believe a person is someone who is an agent of the government, such as a police officer, this is also not considered consent.

Romeo and Juliet Clause

In Florida, the age of consent is 18 years old. However, a convicted offender may qualify for removal from the sex offenders list, if they qualify under the “Romeo and Juliet Clause.” Under the clause, offenders with no other sex offense convictions may have their name removed from the sex offenders list, if they had consensual sex with someone who was at least 14 years old and they were not more than 4 years older than the other person at the time of the offense.

If you’re facing a sexual assault charge, talk to a Florida Keys criminal defense attorney to find out if consent is an appropriate defense for your case.