What Is the Law Concerning an Adult Having Sex with a Minor Who Gives Consent?
I recently received an inquiry about whether an individual who is 22 years old can legally have sex with a 16-year-old, if the 16-year-old consents to the sex. The answer to that question is not simple.
The first law to be considered is Florida Statute Chapter 794, which provides definitions including:
- Consent is an intelligent, knowing and voluntary consent and does not include coerced submission. Consent shall not be deemed to exist because of the failure by the victim to offer physical resistance.
- Sexual battery is defined as oral, anal, or vaginal penetration or union with the sexual organ of another. It also includes penetration by an object.
Florida law provides different levels of punishment depending upon various factors, including the age of the offender and the victim. For example, a person less than 18 years of age who commits a sexual battery on a victim less than 12 years of age commits a life felony. A life felony can result in incarceration for one's entire life. When the victim is less than 12 years old, consent cannot be a defense.
A person 18 years of age or older who commits sexual battery upon a person 12 years of age or older but younger than 18 years of age, without that person’s consent, can be sentenced to 30 years in prison, or if other aggravating circumstances are proved, to life in prison. Consent by a victim under 18 cannot be given if the perpetrator is in the position of familial or custodial authority over the victim, or if the victim reasonably believes the perpetrator is in such a position.
Florida Statute §794.05 sets forth that a person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree. Some people may interpret this to mean that an individual who is 18 through 23 years of age can have consensual sex with a person 16 or 17 years old, without committing a crime. This is not necessarily correct because of other Florida laws.
Can Ignorance of a Minor’s Age Be Used as a Defense?
Florida Statute §800.04 sets forth lewd or lascivious offenses committed upon or in the presence of a person less than 16 years of age. Included within the definition of a lewd or lascivious act is any sexual activity. The statute defines consent as meaning intelligent, knowing, and voluntary consent and does not include submission by coercion.
The significance of this statute is the provision that "neither the victim's lack of chastity nor the victim's consent is a defense to the crimes prescribed in this section." Another significant section of this law is “The perpetrator's ignorance of the victim's age, the victim's misrepresentation of their age, or the perpetrator's bona fide belief of the victim's age, cannot be raised as a defense in a prosecution under this section." Therefore, consent cannot be given by a person less than 16 years of age to sexual activity.
A person under the age of 24 can be charged with sexual battery for having consensual sex with a person believed to be 16 or 17 years of age but who was actually under 16. It is often difficult to determine age based upon the physical appearance or mental abilities. It is common for a minor to have a false ID, such as a driver's license, indicating an age of 16, 17, or older. The fact that false identification is shown by the minor is not a defense.
The reality is that minors frequently lie about their age. The risk of accepting a stated age when compared to the drastic consequences of being convicted of a sexual crime should be seriously considered.
What’s the Law on Taking or Possessing Images of a Minor Engaged in a Sex Act?
Mobile phones and the use of social media play another important role in relation to sexual conduct performed by minors as well as young adults. There are several criminal statutes which define a minor as any person younger than 18 years of age, rather than under 16. An example of the importance of these criminal statutes is seen if an individual 23 years of age has consensual sex with a 16 or 17-year-old.
For example, if during a consensual sexual encounter, the adult takes photographs or causes the minor to take photos exhibiting sexual organs and/or engaging in consensual sex, the adult commits a felony. If the adult transmits the pictures to anyone, including the 16 or 17-year-old who participated in the sex acts, another felony has been committed. The criminal laws relating to the distribution and possession of sexual images define “minor” as anyone under 18 years of age.
It is a felony for an adult to promote a minor to engage in a sexual performance. It is also a crime if the adult possesses photographs or videos of the minor engaging in a sexual performance. The law defines promoting a sexual performance broadly. The adult commits a felony if, knowing that the material includes a sexual conduct by a child less than 18 years of age, the adult does something to help produce that performance, such as hiring the child, allowing the child to appear in the performance, or encouraging the child to appear in the performance.
The common use of cell phones to record sex acts can result in a 19-year-old being convicted of a serious sexual-related felony even if the person being recorded is 16 or 17 years old. The law also provides that the possession of 3 or more copies of photographs or videos of a minor in a sexual performance is evidence of intent to promote the sexual performance and therefore, a felony.
There are many reasons that people are arrested who have had consensual sex with a minor and/or made recordings of the sexual conduct.
Some of the more commonly seen reasons include:
- Parents confront the minor about a late evening out, and to avoid the wrath of the parents the minor responds that there was sex, but it was forced upon the minor.
- A boyfriend or girlfriend of the minor learns that the minor had a sexual encounter with another, and in order to save the relationship, the minor claims that the sex was not consensual.
- Sexually explicit pictures are shared between the minor and the adult and then discovered by the minor's parents, school officials, friends, or police.
These are just a few of the laws relating to an adult having sex with anyone under the age of 18. The adult may be arrested, charged with a sex crime, and sentenced to years in prison. In addition, the conviction of a sex crime will result in a person being required to register as a sex offender, which can have serious consequences. Once a person has been branded as a sex offender, their name goes on a website available to the public and stays there for 25 years.
The publication of a person’s name on the sex offender registry can have extremely serious consequences not only for the offender, but also the offender’s family.
The information on the registry is available to:
- Employers and potential employers,
- Spouse’s employer and potential employers,
- Parents of their children’s friends, and
- Other members of the community
Are you facing charges for a sex crime in Orlando? Reach out to The Law Offices of Horwitz & Citro, P.A. for aggressive defense by calling us at (407) 901-5852 or contacting us online.