In Florida, sexual battery is the statutory term for rape. It is defined as nonconsensual oral, anal or vaginal penetration of another person by use of a sexual organ or another object. In the case of an adult victim, consent is a crucial issue in a prosecution. Although the initial burden falls on the prosecutor to show lack of consent, the defendant can seek to prove that consent was freely given.

Consent, according to Florida statute, must be “intelligent, knowing, and voluntary,” which means it cannot be obtained through coercion. To meet its burden, the prosecution does not have to prove that the alleged victim tried to physically resist the defendant. Usually, the victim’s testimony that he or she did not agree to a sexual encounter will be sufficient. The burden then shifts to the defendant to prove that consent was in fact given.

There are numerous forms of evidence that can establish consent. The defendant can take the stand and testify about what the alleged victim said or did prior to or during the encounter. Other witnesses may be called to testify about surrounding circumstances, such as the defendant’s prior relationship with the victim, if any, or events occurring before the encounter or about. There may also be emails, texts, voicemails, photos and videos to support the existence of a consensual relationship.

In addition to presenting affirmative evidence of the alleged victim’s consent, a defendant can attempt to make the jury question the prosecution’s case. The alleged victim may have been under the influence of drugs and/or alcohol at the time of the encounter. Evidence of the alleged victim’s intoxication or drug-influenced state can call into question the validity of his or her memory of the event. On the other hand, the victim’s impaired condition may also permit a jury’s finding that he or she was not capable of giving consent.

Finally, defense counsel can cross-examine the alleged victim to expose weaknesses in his or her testimony that the encounter was nonconsensual. However, questioning too aggressively may run the risk of seeming to cast blame on the victim, which can backfire with a jury. An experienced Florida criminal defense attorney will be able to analyze the facts of the case and devise a careful strategy for proving consent without attacking the victim.

If you or a family member has been charged with or is under investigation for sexual battery in Florida, the Law Offices of Tad A. Yates, P.A. in Orlando is ready to provide effective legal assistance. Mr. Yates will diligently protect your rights and fight to achieve the most favorable outcome possible in your case. Please contact us online or call 407-608-7777 for an initial consultation.