Supreme Court of Florida ____________
No. SC21-119 ____________
GARRETT STATLER, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
October 13, 2022
COURIEL, J.
In this case we consider a facial challenge to the
constitutionality of a provision of Florida’s sexual battery statute,
section 794.011(5)(b), Florida Statutes (2015). We are asked to
decide whether it “must be read to include a requirement that the
State prove that a criminal defendant knew or should have known
the victim did not consent to sexual intercourse.” Statler v. State,
310 So. 3d 133, 134 (Fla. 1st DCA 2020). We have jurisdiction
because the First District Court of Appeal rejected the constitutional challenge below, and in doing so expressly declared
valid the sexual battery statute. Art. V, § 3(b)(3), Fla. Const.
We, too, find that the statute is constitutional. Subsection
(5)(b) requires the State to prove, beyond a reasonable doubt, that
the complainant in fact did not consent to sexual intercourse, but
not that the defendant knew or should have known anything in
particular about the complainant’s subjective state of mind.
Interpreting the sexual battery statute in this way does not violate a
defendant’s guarantee of due process under the Florida or United
States Constitution. It does not remove the State’s burden to prove
the defendant’s general intent to engage in the act that constitutes
the offense under the statute. Because the State met that burden
in this case, we approve the district court’s decision affirming
Statler’s conviction.
I
On April 15, 2016, A.B., a woman then twenty-two years old,
met Jonathan Tait at a bar in Gainesville, Florida. After talking and
flirting, Tait and A.B. agreed to return to Tait’s apartment.
Arriving at the apartment, Tait and A.B. went to Tait’s
bedroom where they kissed and, as A.B. testified, began
-2- “progressing” toward sexual intercourse. Later, upon finding out
that Tait did not have any condoms, the couple walked to a nearby
store. On the way, A.B. and Tait encountered three young men in
the apartment complex’s parking garage: Garrett Statler (Tait’s
roommate), Statler’s brother, and Statler’s friend.
A.B. testified that she smiled at the three men but denied
introducing herself, speaking to them, touching them, or inviting
them to accompany her and Tait anywhere. Tait likewise testified
that A.B. did not speak to the three men, touch them, or engage in
“any kind of flirtation.” A.B. estimated the conversation lasted
thirty seconds, and Tait testified that it lasted “only a few minutes.”
Statler’s brother testified that the conversation lasted closer to
fifteen minutes, that A.B. was flirtatious and “got close” to all three
men, and that A.B. asked the three men “[m]ultiple times” to “come
up and party” with her and Tait. Statler’s friend testified that A.B.
was “pretty flirty” and “grabbed [his] waist.” According to Statler’s
friend, A.B. was “flirtatious” and “touchy-feely” with Statler
throughout the conversation.
After parting ways with the three men, A.B. and Tait continued
to the convenience store, purchased condoms, and returned to
-3- Tait’s apartment alone. They entered Tait’s bedroom and had
consensual intercourse. At some point during their encounter, Tait
stopped and left the room. It is undisputed that as Tait left the
room, A.B. was lying stomach-down on the bed, facing the wall,
back to the doorway. As he left, Tait told A.B. something along the
lines of: “Stay right there. I’ll be right back,” or “Wait right there.
I’ll be right back.”
Tait testified that he used the bathroom, then went to the
other bedroom to talk to Statler and Statler’s friend, who by then
had arrived. Tait bragged to both men about his encounter with
A.B. and said to Statler, “You could try if you want.” According to
Tait, Statler said nothing in response. He “just walked in[to Tait’s
bedroom].” Tait explained he “wasn’t in [the other] bedroom more
than 45 seconds, and [Statler] was already in my room.” Tait did
not follow Statler, but instead smoked a cigarette from the balcony
connected to Statler’s room.
After he finished his cigarette, Tait looked through the crack in
his bedroom door and saw Statler having sex with A.B. Tait then
“got out of there” and stood in the kitchen waiting for Statler to
come out.
-4- A.B. testified that she knew Tait had left the room because she
felt him move off the bed and heard no one else breathing in the
room; after he was gone, she remained facing the wall away from
the doorway. Thirty seconds later, A.B. heard someone come in,
then felt hands grab her hips. She “assumed that it was Tait
coming back and we were going to finish.”
Although the lights were on, her view was unobstructed, 1 and
she was not heavily intoxicated or otherwise impaired, A.B. did not
turn around when Statler pulled her close and began having
intercourse with her. He never spoke or identified himself. A.B.
testified that she had no reason “at all” to think it was not Tait. She
told him to “go harder” several times and “it feels good.” When it
was over, she sank into the bed, still on her stomach and facing the
wall.
Tait testified that Statler eventually stepped halfway out the
bedroom door into the kitchen, whereupon Tait told him, “Hey, tell
[A.B.] to leave.” Tait then saw Statler go back into the bedroom.
1. A.B. testified that Statler was not wearing any kind of mask to conceal his identity, he never told her not to turn around, and he never held her head in place to prevent her from looking at him.
-5- A.B. testified that the person behind her “laughed a little bit . . . like
a nervous laugh,” causing her to turn around. She then realized
that he “was not the same person I was initially having sex with.”
A.B. testified that Statler was “grinning like he knew he did
something bad” and “was waiting to see my reaction.”
A.B. testified that once she realized “it was a different person”
she “was overwhelmed.” She “tr[ied] to gather [herself]” and put her
pants on. Then, she said:
[B]y the time I got my pants on, I knew that I was going to attack this person because what they did to me was attack me. So I wasn’t going to attack him naked, so I put my pants on and I looked up at him and I said, You raped me.
A.B. testified that Statler
looked at me and he said, What? No. We’re just partying. And I said, No, you fucking raped me. And I got up and I tried to jump at him and claw at him. . . . I was trying to scratch him and do as much harm as I possibly could.
The fight spilled into the living room, with A.B. “chasing [Statler]”
and “screaming at the top of [her] lungs.” Tait intervened and
pulled A.B. off Statler, carrying her back toward Tait’s bedroom.
Once A.B. was separated from Statler, Tait handed A.B. her
shirt and attempted to calm her, saying, “You’re okay. It’s fine. It’s
-6- all going to be fine.” A.B. testified that she continued to scream at
Tait, “No, it’s not. You raped me.” A.B. then attempted to call the
police on her phone, but before she could talk to an operator, Tait
took the phone from A.B. and hung up on the 911 operator. Tait
then grabbed A.B. by the arm and physically threw her out of the
apartment. Tait and Statler closed the door and locked A.B.
outside.
A neighbor in another apartment heard “someone yelling for
help” and “went upstairs to investigate.” He testified that when he
walked out of the stairwell, he saw A.B. “on the ground crying,” with
a “doe-in-headlights look.” The neighbor described A.B. as
“terrified,” “scared of everything,” and repeating the phrase, “It
wasn’t him.” A.B. picked up her phone and called 911 a second
time as the neighbor led her downstairs to his apartment. In the
neighbor’s apartment, A.B. spoke to the 911 dispatcher and stated
she had been raped. A.B. waited in the neighbor’s apartment until
the police arrived. A.B. spoke to the police in the neighbor’s
apartment. They accompanied her to a hospital.
Based on these events, the State charged Statler with one
count of sexual battery under subsection (5)(b). At trial, when the
-7- State rested its case, Statler moved for judgment of acquittal. His
counsel argued that
in terms of intent, the state cannot refute a reasonable hypothesis of innocence that Mr. Statler believed that he had consent from the alleged victim, who was not physically incapacitated and whose physical response and all of the evidence that he could have had at the time suggested that it was a consensual act.
The trial court disagreed, noting that the “issue is not whether he
believes he has consent,” but “whether she gave consent.” The trial
judge continued:
[T]he [element the State has] to prove is to beyond a reasonable doubt that she did not give consent. Whether he believes he has consent is not a defense. It goes to—it may go to the reasonable doubt in terms of the—all of those actions may give rise if the jury believes they have a doubt as to whether she gave consent, but the issue is not what he believed.
The trial court denied the motion for judgment of acquittal and
moved on to discuss the verdict form and jury instructions. Statler
did not object to the jury instruction listing the following elements
of sexual battery:
Number one, that Garrett Statler committed an act upon [A.B.] in which his penis penetrated or made contact with the vagina of [A.B.].
Number two, that Garrett Statler’[s] act was committed without the consent of [A.B.].
-8- Number three, at the time of the offense, [A.B.] was 18 years of age or older.
And number four, at the time of the offense Garrett Statler was 18 years of age or older.
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.
The jury found Statler guilty of sexual battery as charged. The trial
court sentenced Statler to eighteen months in prison, followed by
ten years of sex-offender probation. Statler appealed.
The First District summarily affirmed Statler’s conviction for
sexual battery and wrote solely “to address his argument that
Florida’s sexual battery statute is facially unconstitutional or must
be read to include a requirement that the State prove that a
criminal defendant knew or should have known the victim did not
consent to sexual intercourse.” Statler, 310 So. 3d at 134. It
rejected both contentions, citing Watson v. State, 504 So. 2d 1267,
1269 (Fla. 1st DCA 1986), for the proposition that “whether a
defendant knew or should have known that the victim was refusing
sexual intercourse is not an element of the crime of [sexual
battery].” Statler, 310 So. 3d at 134 (quoting Watson, 504 So. 2d at
-9- 1269). The district court continued that “the plain text of the
statute supports [this] interpretation,” and Watson is “well-
established law” that “has not been questioned for decades.” Id. at
134-35. Therefore, the First District held, the trial court correctly
ruled that whether Statler believed he had consent was no defense
to the crime of sexual battery. Id.
On the matter of constitutionality, the First District noted that
Statler relied on State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004),
for the proposition that “absent explicit statutory language, criminal
statutes must be read to include a mens rea element.” Statler, 310
So. 3d at 134 (citing Giorgetti, 868 So. 2d at 515). “However,” the
district court continued, “the Florida Supreme Court limited its
holding in Giorgetti to statutes punishing otherwise ‘innocent
conduct,’ such as failing to register as a sexual offender after
relocating residences.” Id. The First District reasoned that “[t]he
crime of sexual battery under section 794.011(5)(b) is
distinguishable from such ‘innocent conduct.’ ” Id. “Therefore,” the
First District concluded, “based on our prior precedent in Watson
and the inapplicability of Giorgetti, we disagree with [Statler] that
- 10 - section 794.011(5)(b) is unconstitutional because it does not require
the State to prove a defendant’s mens rea.” Id.
The First District affirmed Statler’s conviction and declined to
certify a question of great public importance. Id. This Court
exercised discretionary review because the district court expressly
declared valid subsection (5)(b).
II
The First District’s holding implicates issues of statutory
interpretation and constitutionality, both of which we review de
novo. See Richards v. State, 288 So. 3d 574, 575 (Fla. 2020)
(statutory construction); State v. Adkins, 96 So. 3d 412, 416 (Fla.
2012) (constitutionality) (citing Crist v. Ervin, 56 So. 3d 745, 747
(Fla. 2011)).
The questions before us are: what, if anything, the State must
prove about a defendant’s criminal intent on the issue of the
complainant’s nonconsent in order to obtain a conviction under
subsection (5)(b); and do the guarantees of article I, section 9 of the
Florida Constitution and the Fourteenth Amendment to the U.S.
Constitution permit the Legislature to have required what it in fact
did in subsection (5)(b)? We answer that the Legislature made
- 11 - sexual battery a crime of general intent, meaning that subsection
(5)(b) includes no scienter requirement as to the complainant’s
nonconsent, and that this determination is safely within the
Legislature’s constitutional authority.
A
As a matter of statutory interpretation, the First District is
correct that subsection (5)(b) does not require the State to prove
that a criminal defendant knew or should have known the victim
did not consent to sexual intercourse.
We begin, as always, from the premise that “[i]n construing
this statute, this Court must give the ‘statutory language its plain
and ordinary meaning,’ and is not ‘at liberty to add words . . . that
were not placed there by the Legislature.’ ” McDade v. State, 154
So. 3d 292, 297 (Fla. 2014) (quoting Exposito v. State, 891 So. 2d
525, 528 (Fla. 2004)). Subsection (5)(b) provides:
A person 18 years of age or older who commits sexual battery 2 upon a person 18 years of age or older, without
2. Elsewhere, section 794.011 defines “sexual battery” as:
[O]ral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object;
- 12 - that person’s consent, 3 and in the process does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.
§ 794.011(5)(b), Fla. Stat. Notably absent from these words is any
reference to the defendant’s state of mind. “Nevertheless, silence on
this point by itself does not necessarily suggest that [the
Legislature] intended to dispense with a conventional mens rea
element . . . . On the contrary, we must construe the statute in light
of the background rules of the common law, in which the
requirement of some mens rea for a crime is firmly embedded.”
Staples v. United States, 511 U.S. 600, 605 (1994) (citations
omitted); see also United States v. U.S. Gypsum Co., 438 U.S. 422,
436 (1978) (“[T]he existence of a mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal
however, sexual battery does not include an act done for a bona fide medical purpose.
§ 794.011(1)(j), Fla. Stat.
3. “Consent” under the statute means “intelligent, knowing, and voluntary consent and does not include coerced submission”; consent “shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.” § 794.011(1)(a), Fla. Stat.
- 13 - jurisprudence.” (quoting Dennis v. United States, 341 U.S. 494, 500
(1951))). The language and structure of chapter 794, as well as the
common law of rape from which it evolved, make plain that the
crime of sexual battery set forth in subsection (5)(b) is a crime of
general intent—that is, the statute requires the State to prove “no
specific intent . . . other than that evidenced by the doing of the
acts constituting the offense.” Askew v. State, 118 So. 2d 219, 222
(Fla. 1960). Here, “the act constituting the offense” is the sexual
battery, as defined in the statute; the absence of consent is an
attendant circumstance (and a distinct element) separate from the
act.
The plain language of subsection (5)(b) requires the State to
prove that sexual contact occurred “without . . . consent.” But it
does not, on its face, demand any proof of the defendant’s
subjective understanding of whether the complainant consented to
the sexual act.
These two different questions—whether the complainant in
fact consented to sex, versus whether the defendant knew or should
have known that the complainant did not—seem close, especially
- 14 - because some evidence may be relevant to either question. 4 But the
statute only requires the State to establish the former, not the
latter. As to the absence of consent, the determination that
subsection (5)(b) puts to the jury depends not on the inner workings
of each party’s mind, but on how each party’s state of mind is made
manifest to the other. Watson, 504 So. 2d at 1269. As the high
court of another state has held, it is the existence of consent,
objectively manifested between the parties, and not the defendant’s
subjective perception of the complainant’s thoughts, that is at
issue. See State v. Smith, 554 A.2d 713, 717-19 (Conn. 1989)
(examining this distinction in depth).
Because the existence or absence of consent is an objective
determination to be made from facts observable by a reasonable
person, the jury’s finding must turn on what the complainant said
and did. See id. at 717 (explaining that although “consent” is
“commonly regarded as referring to the state of mind of the
complainant in a sexual assault case, it cannot be viewed as a
4. A statement of affirmative consent from the complainant, for example, would be relevant both to the actual existence of consent and to each party’s state of mind.
- 15 - wholly subjective concept,” so “a defendant should not be found
guilty because of some undisclosed mental reservation on the part
of the complainant,” but instead, “whether a complainant has
consented to intercourse depends upon [the complainant’s]
manifestations of such consent as reasonably construed”); cf. State
v. Ayer, 612 A.2d 923, 926 (N.H. 1992) (noting that if a victim
“objectively communicates lack of consent and the defendant
subjectively fails to receive the message, [the defendant] is guilty,”
since the “appropriate inquiry is whether a reasonable person in the
circumstances would have understood that the victim did not
consent”). The question is whether the State has proven beyond a
reasonable doubt, from the admissible evidence, that the defendant
did not have a willing partner.
Here, the jury drew permissible inferences from the facts in
evidence to determine that consent was absent—that A.B. was not a
willing partner. Those facts included testimony about Statler’s
failure to identify himself upon entering the room where A.B. was
waiting for Tait; about A.B.’s reactions upon learning that it had
been Statler, and not Tait, who had engaged in intercourse with
- 16 - her; and about Statler’s conduct before, during, and after the
episode.
Our construction and application of subsection (5)(b) fits into
the provision’s statutory context. The presence of an express
requirement about the defendant’s knowledge elsewhere in chapter
794—specifically, in some aggravating circumstances that elevate
the crime to a felony of the first or second degree—supports the
conclusion that the wording of subsection (5)(b) is no mistake, but a
deliberate choice by the Legislature not to include a requirement
about the defendant’s subjective knowledge as to the element of
nonconsent. 5 And consider section 794.08, Florida Statutes (2021)
(criminalizing female genital mutilation), which requires that the
5. Where subsection (5)(b) outlines the least serious, or “basic,” crime of sexual battery—resulting in a felony of the second degree—section 794.011(4) lists various factors that, if present, increase the seriousness of the crime to a felony of the first degree. § 794.011(4), Fla. Stat. Two of these aggravating circumstances contain an express knowledge requirement. § 794.011(4)(e)(4), Fla. Stat. (elevating sexual battery to a felony of the first degree if the offender either “administers or has knowledge of someone else administering to the victim any [substance] that mentally or physically incapacitates the victim”); § 794.011(4)(e)(5), Fla. Stat. (doing the same if the “victim is mentally defective, and the offender has reason to believe this or has actual knowledge of this fact”).
- 17 - State prove beyond a reasonable doubt that the defendant acted
knowingly. We do not presume that the Legislature would create a
requirement of specific knowledge by omission in one section of
chapter 794 when it affirmatively and expressly included such a
requirement elsewhere in the same statute. See Beach v. Great W.
Bank, 692 So. 2d 146, 152 (Fla. 1997) (“As a general rule, ‘[w]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’ ”) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).
The Legislature’s treatment of other sexual crimes is also
telling. Section 825.1025, Florida Statutes (2021), for example,
criminalizes lewd or lascivious offenses committed upon or in the
presence of an elderly or disabled person. The statute prohibits
three categories of sexual activities, all of which contain an express
requirement that the defendant knew or reasonably should have
known that the elderly or disabled victim “either lacks the capacity
to consent or fails to give consent.” § 825.1025(4)(a), Fla. Stat.
Plainly read, with the benefit of the context provided by these other
- 18 - relevant statutory provisions, subsection (5)(b) does not contain the
specific knowledge requirement that Statler says it does.
On what basis, then, do we conclude that it requires the State
to prove any criminal intent at all? The answer is that a correct
reading of the statute acknowledges the long common-law tradition
of treating rape as a crime of general intent.
At common law, rape was defined as (1) “the carnal knowledge
of a woman” (2) “forcibly” and (3) “against her will.” 4 William
Blackstone, Commentaries on the Laws of England *210. Florida
adopted this common law conception of rape at its first territorial
legislative session in 1822, enacting a law that provided:
Any person or persons who shall have carnal knowledge of any woman, forcibly and against her will, shall be deemed guilty of rape, and upon conviction thereof, shall suffer death.
An Act for the Apprehension of Criminals and the Punishment of
Crimes and Misdemeanors, § 21, Acts of the Legislative Council of
the Territory of Florida, First Session (1822). These three basic
elements remained more or less unchanged for many decades. As
late as 1973, Florida’s rape statute provided:
- 19 - Whoever ravishes or carnally knows a person of the age of eleven years or more, by force and against his or her will . . . shall be guilty of a life felony . . . .
§ 794.01(2), Fla. Stat. (1973).
And for just as long, this Court continued the common-law
tradition of interpreting rape as a crime of general intent. Askew,
118 So. 2d at 222. As the crime of rape required no specific intent
on the part of the defendant other than to have acted intentionally
in performing the acts that constituted these common-law
elements, we said that “the requisite intent [in a rape prosecution]
is presumed or inferred from the act itself, [and therefore] voluntary
intoxication is only a defense to the crime of rape when its use
produces a mental condition of insanity.” Id. (citing Cochran v.
State, 61 So. 187, 190 (Fla. 1913)).
During the 1970s, in line with many other states, Florida
replaced its resistance-based rape statute—requiring proof of carnal
knowledge “against [the victim’s] will”—with a statutory requirement
that the State prove the absence of consent. 6 It repealed the rape
6. See Cassia C. Spohn, The Rape Reform Movement: The Traditional Common Law and Rape Law Reforms, 39 Jurimetrics 119 (1999).
- 20 - statute—by then codified as section 794.01—in its entirety in 1974
and adopted the modern statutory scheme criminalizing “sexual
battery.” The 1974 statute defined sexual battery as:
[O]ral, anal, or vaginal penetration by or union with the sexual organ of another; or the anal or vaginal penetration of another by any other object, provided, however, sexual battery shall not include acts done for bona fide medical purposes.
§ 794.011(1)(f), Fla. Stat. (Supp. 1974). It then provided that:
A person who commits sexual battery upon a person over the age of eleven (11) years, without that person’s consent and in the process thereof uses physical force and violence not likely to cause serious personal injury, shall be guilty of a felony of the second degree . . .
§ 794.011(5), Fla. Stat. (Supp. 1974) (emphasis added).
Significantly, the new statute did not affirmatively alter the State’s
burden as to the defendant’s mental state. 7
7. Although no case of ours from this period appears to pass upon the question, in Buford v. State, 492 So. 2d 355 (Fla. 1986), a homicide case, we determined that trial counsel was not ineffective for having failed to request an instruction on voluntary intoxication, where the State had proceeded under both a premeditation and a felony-murder theory. The felony-murder theory was
based upon the fact that the murder occurred during the commission of a sexual battery. Intoxication would be a possible defense to the specific intent crime of premeditated murder but not to felony murder since the
- 21 - Then, in 1992, the Legislature amended the sexual battery
statute in response to this Court’s opinion in Gould v. State, 577 So.
2d 1302 (Fla. 1991). In Gould, we passed upon section 794.011(5),
which at the time provided that:
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury is guilty of a felony of the second degree[.]
Id. at 1304 n.4. We read this section to mean that “the actual use
of some physical force beyond that which is required to accomplish
the ‘penetration’ or ‘union’ is an essential element of [sexual battery
as defined in] section 794.011(5).” Id. at 1305.
Within two years, the Legislature amended chapter 794 in two
ways. It amended subsection (5) to provide:
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury is guilty of a felony of the second degree . . . .
underlying felony—sexual battery—is not a specific intent crime.
Id. at 359 (emphasis added) (citing Askew v. State, 118 So. 2d 219 (Fla. 1960)).
- 22 - Ch. 92-135, § 3, at 1091, Laws of Fla. (codified at § 794.011(5), Fla.
Stat. (1993)).8 And it added the following clarification on legislative
intent as to the “basic charge of sexual battery”:
The Legislature finds that the least serious sexual battery offense, which is provided in s. 794.011(5), was intended, and remains intended, to serve as the basic charge of sexual battery and to be necessarily included in the offenses charged under subsections (3) and (4), within the meaning of s. 924.34; and that it was never intended that the sexual battery offense described in s. 794.011(5) require any force or violence beyond the force and violence that is inherent in the accomplishment of “penetration” or “union.”
Ch. 92-135, § 2, at 1089, Laws of Fla. (codified at § 794.005, Fla.
Stat.).
Since these amendments, the weight of the authority on the
question has consistently favored the conclusion that the statute
retained the general intent requirement that had prevailed at
common law. See Boroughs v. State, 684 So. 2d 274, 275 (Fla. 5th
8. The Legislature enacted subsection (5)(b)—the provision under which Statler was convicted—in 2014. See ch. 2014-4, § 3, at 5, Laws of Fla. For the purposes of determining what the state must prove about a defendant’s criminal intent on the issue of the complainant’s nonconsent in order to obtain a conviction, subsection (5)(b) and subsection (5) following Gould are materially the same.
- 23 - DCA 1996) (noting that “sexual battery is a general intent crime”);
Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004)
(“[U]nder Florida law, sexual battery is a general intent crime and
does not require that a defendant act with specific intent.”); see also
Whitfield v. State, 923 So. 2d 375, 379 (Fla. 2005) (holding that the
defense of voluntary intoxication was not available for general intent
crimes such as sexual battery). Florida law on these questions
- 24 - comports with the law of numerous states 9 and federal 10 law
regarding nonconsensual sex.
9. See State v. Koperski, 578 N.W.2d 837, 847 (Neb. 1998) (concluding that sexual assault is a crime of general intent, “[t]herefore, the only burden on the prosecution . . . is to prove beyond a reasonable doubt that the accused subjected another person to sexual penetration”); Smith, 554 A.2d at 717 (concluding that “no specific intent, but only a general intent to perform the physical acts constituting the crime, is necessary for the crime of first degree sexual assault”); People v. Witte, 449 N.E.2d 966, 971 n.2 (Ill. App. Ct. 1983) (finding that “the crime of rape must be understood as not including an element of knowledge of the woman’s lack of consent, from which it follows that not every mistake by the defendant by which he believes the woman is consenting will be a defense” (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 47, at 358 (1972))); State v. Bauer, 324 N.W.2d 320 (Iowa 1982) (determining that a defendant’s knowledge of his or her partner’s lack of consent is not an element of Iowa’s sexual abuse statute); Com. v. Lopez, 745 N.E.2d 961, 965 (Mass. 2001) (“Historically, the relevant inquiry has been limited to consent in fact, and no mens rea or knowledge as to the lack of consent has ever been required.”); State v. Elmore, 771 P.2d 1192, 1193 (Wash. Ct. App. 1989) (holding that since the Legislature “chose not to include a degree of culpability as an element of rape,” but instead “specifically included lack of consent,” a knowledge requirement cannot be “inferred” into the statute); People v. Langworthy, 331 N.W.2d 171 (Mich. 1982) (listing cases to this effect).
10. See United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019) (analyzing the similarly worded federal statute and holding that “Congress clearly intended a general intent mens rea”); United States v. Lavallie, 666 F.2d 1217, 1219 (8th Cir. 1981) (“Rape is a crime requiring general intent—only that indicated by the commission of the offense.”); United States v. Thornton, 498 F.2d 749, 753 (D.C. Cir. 1974) (“ ‘Rape is not a crime which requires a specific intent.’ This is in accord with the great weight of authority
- 25 - B
We turn now to Statler’s argument that, unless we read into it
the particular subjective knowledge requirement that he proposes,
subsection (5)(b) is facially unconstitutional because it lacks a mens
rea requirement as to the nonconsent element, and therefore denies
an accused due process. 11
In weighing a challenge to a statute’s constitutionality, we
“accord legislative acts a presumption of constitutionality and . . .
construe challenged legislation to effect a constitutional outcome
whenever possible.” Adkins, 96 So. 3d at 416-17 (quoting Fla. Dep’t
of Revenue v. City of Gainesville, 918 So. 2d 250, 256 (Fla. 2005));
see also Giorgetti, 868 So. 2d at 518 (“We are also obligated to
which holds the crime of rape requires no intent other than that indicated by the commission of the acts constituting the offense.” (quoting McGuinn v. United States, 191 F.2d 477, 479 (D.C. Cir. 1951))).
11. Evaluating Statler’s facial challenge to the constitutionality of subsection (5)(b), we set aside the fact that, in this particular case, the jury heard ample evidence from which it could conclude that consent was lacking, and that Statler had tricked A.B. into a nonconsensual encounter. Among other things, the jury heard that he entered the room voluntarily, did not identify himself, and laughed nervously when he was discovered.
- 26 - construe statutes in a manner that avoids a holding that a statute
may be unconstitutional.” (citing Gray v. Central Fla. Lumber Co.,
140 So. 320, 323 (Fla. 1932))). When we say that a statute is
facially unconstitutional, we mean “that no set of circumstances
exists under which the statute would be valid.” Fla. Dep’t of
Revenue, 918 So. 2d at 256.
We cannot say that here. For starters, “[g]iven the broad
authority of the legislative branch to define the elements of crimes,
the requirements of due process ordinarily do not preclude the
creation of offenses which lack a guilty knowledge element.”
Adkins, 96 So. 3d at 417. It follows that
[i]t is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result.
Id. at 418 (quoting State v. Gray, 435 So. 2d 816, 819-20 (Fla.
1983)). For the reasons we have discussed, the Legislature’s reach
did not approach the extent of its constitutional grasp, because the
statute makes sexual battery as a crime of general intent, not a
strict liability offense.
- 27 - Long ago, the United States Supreme Court recognized that
strict liability offenses would commonly be “found in regulatory
measures in the exercise of what is called the police power where
the emphasis of the statute is evidently upon achievement of some
social betterment rather than the punishment of the crimes as in
cases of mala in se.” United States v. Balint, 258 U.S. 250, 252
(1922). Subsection (5)(b) would be an odd fit in that category, as it
criminalizes not “wholly passive” conduct or conduct that might
arguably be committed unwittingly, but indisputably active,
purposeful conduct by the defendant. Cf. Lambert v. California, 355
U.S. 225, 226 (1957) (striking down on Fourteenth Amendment due
process grounds a municipal ordinance that criminalized “any
convicted person” who remained in Los Angeles for more than five
days without registering with the city); see also Giorgetti, 868 So. 2d
at 519-20 (reasoning from Lambert that sexual offender registration
statutes include a requirement that the alleged offender knows of
the obligation to register and maintain a current address).
We likewise reject Statler’s argument that interpreting the
statute as we do risks the criminalization of innocent conduct
without due process of law. In a sexual battery case, it is the
- 28 - State’s burden to prove, beyond a reasonable doubt, the absence of
consent. A jury’s finding of guilt will therefore require the State to
overcome any evidence of the complainant’s willing participation
contained in the record. In that regard, Florida law contains the
same constitutional safeguards recognized by other states and
federal courts as protections against the criminalization of innocent
sexual activity. See, e.g., State v. Elmore, 771 P.2d 1192, 1193
(Wash. Ct. App. 1989) (noting that “having sexual intercourse with
another person without his consent could not reasonably be
mistaken to be an innocent act”); United States v. McDonald, 78
M.J. 376, 381 (C.A.A.F. 2019) (clarifying that “only consensual
sexual intercourse is innocent”).
III
We approve the decision of the First District affirming Statler’s
conviction for sexual battery in violation of section 794.011(5)(b).
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, and GROSSHANS, JJ., concur. FRANCIS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
- 29 - Application for Review of the Decision of the District Court of Appeal Statutory Validity
First District - Case No. 1D19-264
(Alachua County)
Jessica J. Yeary, Public Defender, Glen P. Gifford and Megan Long, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, David M. Costello, Assistant Solicitor General, and Steven Woods, Assistant Attorney General, Tallahassee, Florida,
for Respondent
- 30 -