Fla. Std. Jury Instr. (Crim.) 11.4

§§ 794.011(5)(a), (5)(b), (5)(c), and (5)(d), Fla. Stat.**

To prove the crime of Sexual Battery, the State must prove the following four 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.

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

Give 3a or 3b as applicable.

3. 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 4a or 4b as applicable.

4. 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.

§ 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. § 794.022(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 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.

If you find that (defendant) committed the crime of Sexual Battery, 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 OVER; VICTIM 12–LESS THAN 18 — WITHOUT FORCE — 794.011(5)(a)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Battery

784.03(1)(a)1.

8.3

Sexual battery (Defendant 18 or older, 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