Garrett Statler v. State of Florida

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

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“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

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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.

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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

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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

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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.].

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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

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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

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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

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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;

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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.

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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.

1

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

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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.

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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

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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”).

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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

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relevant statutory provisions, subsection (5)(b) does not contain the

specific knowledge requirement that Statler says it does.

2

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:

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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).

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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

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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)).

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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.

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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

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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

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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.

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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.

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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

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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.

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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

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