Fla. Std. Jury Instr. (Crim.) 11.3

§§ 794.011(4)(a), (4)(b), and (4)(c), Fla. Stat.**

To prove the crime of Sexual Battery Under Specified Circumstances, the State must prove the following five elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable.

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] [female genitals**] [mouth] of the [(victim)] [(defendant)].

b. (Defendant) committed an act [upon] [with] (victim) in which the [anus] [female genitals**] of [(victim)] [(defendant)] [was] [were] penetrated by an object.

Give 2a – 2g as applicable.

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

b. (Defendant) coerced (victim) to submit by threatening to use force or violence likely to cause serious personal injury on (victim) and (victim) reasonably believed (defendant) had the present ability to execute the threat.

c. (Defendant) coerced (victim) to submit by threat of retaliation against (victim) or any other person and (victim) reasonably believed that (defendant) had the ability to execute the threat in the future.

d. (Defendant), without prior knowledge or consent of (victim), administered or had knowledge of someone else administering to (victim) a narcotic, anesthetic, or other intoxicating substance that mentally or physically incapacitated (victim).

e. (Victim) was mentally defective and (defendant) had reason to believe this or had actual knowledge of that fact.

f. (Victim) was physically incapacitated.

g. (Defendant) was at the time a[n] (insert official title or position) and was a[n] [certified [law enforcement officer] [correctional officer] [correctional probation officer]] [elected official exempt from certification] [person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting] and the [officer] [official] [person] was acting in such a manner as to lead (victim) to reasonably believe that (defendant) was in a position of control or authority as an agent or employee of government.

3. (Defendant’s) act was committed without the consent of (victim).

Give 4a or 4b as applicable.

4. a. At the time, (victim) was 12 years of age or older [but younger than 18 years of age].

b. At the time, (victim) was 18 years of age or older.

Give 5a or 5b as applicable.

5. a. At the time, (defendant) was 18 years of age or older.

b. At the time, (defendant) was younger than 18 years of age.

Give if applicable. § 794.011(1), Fla. Stat.

However, any act done for bona fide medical purposes is not a Sexual Battery.

Give if applicable. § 794.021, Fla. Stat.

Ignorance of (victim’s) age, (victim’s) misrepresentation of his or her age, or the defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged.

Give if applicable.

“Bona fide” means genuine.

Give in all cases. § 794.011(1), Fla. Stat.

“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.

Give if applicable. § 794.011(9), Fla. Stat.

Acquiescence to a person reasonably believed by (victim) to be in a position of authority or control does not constitute consent and it is not a defense that (defendant) was not actually in a position of control or authority if the circumstances were such as to lead (victim) to reasonably believe that [he] [she] was in such a position.

§ 794.022(4), Fla. Stat.

Evidence of (victim’s) mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent.

§ 794.011(1), Fla. Stat.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.

§ 794.011(1), Fla. Stat.

“Mentally defective” means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

Phillips v. State, 238 So. 3d 308 (Fla. 4th DCA 2018).

“Union” means contact.

Give if applicable. § 794.011(1), Fla. Stat.

“Female genitals**” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

Give if 2a alleged. § 794.011(1), Fla. Stat.

“Physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act.

Give if 2b alleged. § 794.011(1), Fla. Stat.

“Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.

Give if 2f alleged. § 794.011(1), Fla. Stat.

“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.

Give if requested. § 794.022, Fla. Stat.

(Victim’s) lack of chastity is not a defense to the crime charged.

§ 775.0862, Fla. Stat.

Enhancement for sexual battery against student by school authority figure.

Applicable only to §§ 794.011(4)(b), (4)(c), and (4)(d), Fla. Stat.

If you find that (defendant) committed the crime of Sexual Battery Under Specified Circumstances, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in § 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser-Included Offenses

SEXUAL BATTERY — DEFENDANT 18 OR OLDER; VICTIM 12 TO LESS

THAN 18— UNDER SPECIFIED CIRCUMSTANCES — 794.011(4)(a)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Sexual Battery

794.011(5)(a)

11.4

Battery

784.03(1)(a)1.

8.3

Sexual battery under specified circumstances (Defendant 18 or older, victim 18 or older)

794.011(4)(b)

11.3

Sexual battery under specified circumstances (Defendant younger than 18, victim 12 or older)

794.011(4)(c)

11.3

Sexual battery (Defendant and victim 18 or older)

794.011(5)(b)

11.4

Sexual battery (Defendant younger than 18, victim 12 or older)

794.011(5)(c)

11.4

Lewd or lascivious battery (Victim 12 or older but less than 16)

800.04(4)(a)1.

11.10(a)

Lewd or lascivious battery (Victim less than 16)*

800.04(4)(a)2.*

11.10(b)*

Attempt

777.04(1)

5.1

Aggravated battery

784.045(1)

8.4

Felony battery

784.041(1)

8.5

Aggravated assault

784.021(1)(a)

8.2

Battery

784.03(1)(a)2.

8.3

Assault

784.011

8.1

SEXUAL BATTERY — DEFENDANT AND VICTIM 18 OR OLDER —UNDER SPECIFIED CIRCUMSTANCES — 794.011(4)(b)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Sexual Battery

794.011(5)(b)

11.4

Battery

784.03(1)(a)1.

8.3

Sexual battery under specified circumstances (Defendant younger than 18, victim 12 or older)

794.011(4)(c)

11.3

Sexual battery (Defendant 18 or older, victim 12 or older but younger than 18)

794.011(5)(a)

11.4

Sexual battery (Defendant younger than 18, victim 12 or older)

794.011(5)(c)

11.4

Lewd or lascivious battery (Victim 12 or older but less than 16)

800.04(4)(a)1.

11.10(a)

Lewd or lascivious battery (Victim less than 16)*

800.04(4)(a)2.*

11.10(b)*

Attempt

777.04(1)

5.1

Aggravated battery

784.045(1)

8.4

Felony battery

784.041(1)

8.5

Aggravated assault

784.021(1)(a)

8.2

Battery

784.03(1)(a)2.

8.3

Assault

784.011

8.1

SEXUAL BATTERY — DEFENDANT LESS THAN 18; VICTIM 12 OR OLDER — UNDER SPECIFIED CIRCUMSTANCES — 794.011(4)(c)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Sexual Battery

794.011(5)(c)

11.4

Battery

784.03(1)(a)1.

8.3

Sexual battery under specified circumstances (Defendant 18 or older, victim 18 or older)

794.011(4)(b)

11.3

Sexual battery (Defendant 18 or older, victim 12 or older but younger than 18)

794.011(5)(a)

11.4

Sexual battery (Defendant 18 or older, victim 18 or older)

794.011(5)(b)

11.4

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Lewd or lascivious battery (Victim 12 or older but less than 16)

800.04(4)(a)1.

11.10(a)

Lewd or lascivious battery (Victim less than 16)*

800.04(4)(a)2.*

11.10(b)*

Attempt

777.04(1)

5.1

Aggravated battery

784.045(1)

8.4

Felony battery

784.041(1)

8.5

Aggravated assault

784.021(1)(a)

8.2

Battery

784.03(1)(a)2.

8.3

Assault

784.011

8.1