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What is Consent for Sex Crimes Under Florida Law?

On October 1 several new laws took effect in Florida, including a law prohibiting “revenge porn.” Specifically, the law prohibits a person from posting sexually explicit videos or photographs of another person without the other person’s consent. But like a number of other sexual-related crimes, a defendant can escape criminal liability if the “victim” consented to the act. A number of sex crimes (including the new crime prohibiting “revenge porn”) have exceptions for cases where the victim consented, including sexual battery. But just what exactly is “consent”?

Requirements for Valid Consent:

In order to be effective, Florida law requires “consent” to be intelligent, knowing, and voluntarily given. Consent is invalid if it:

  • Is product of duress, fraud, or threats made upon the person;
  • Is made by a person who is drugged, intoxicated, or otherwise not in possession of their full intellectual capacities; or
  • Does not encompass the actual act performed (for instance, consent to a kiss does not mean the person has consented to sexual intercourse).

In order to be valid, the consent must be:

  • Intelligent, meaning the person must be in possession of their mental capacities. A person who is drugged or intoxicated, or who is of low intellectual functioning, may not be capable of giving intelligent consent.
  • Knowing, meaning that the person must know what it is he or she is consenting to. If a person consents to action A but the other person performs action B, the mere fact the person consented to A does not mean he or she has consented to B.
  • Voluntary, meaning that it must be the victim’s own free choice to engage in the sexual contact or conduct to occur. The person must be free from outside influences that are impermissibly influencing the person’s decision.

Florida law also states that a victim does not need to fight back or physically resist another person. In other words, the mere fact that a “victim” did not attempt to push a person off of him or her or try to strike his or her aggressor will not be construed as the person having consented to the topic.

How Do You Prove Consent Then?

In sexual assault and sex crimes cases, there are often only two eyewitnesses to what occurred: the victim and the defendant. The defendant may claim the victim consented while the victim will usually say there was no consent. How can you prove consent did in fact exist? You and your attorney can:

  • Talk to other people who saw the victim before or just after the alleged incident;
  • Investigate whether the victim filed any police report and, if so, how soon after the event this occurred; and
  • Examine and evaluate the actions of the “victim” after the alleged incident.

You should not attempt to prove consent without the assistance of an experienced and resourceful Florida criminal defense attorney like Miami criminal defense attorney Jeffrey S. Weiner. Having successfully represented numerous Florida residents charged with serious offenses like sex crimes, he is able to investigate the facts and circumstances of your case and determine if consent is a valid defense for you. Contact his office today by calling (305) 670-9919.

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