Date Rape Charges

Date rape is often associated with references from TV of a person secretly slipping a substance into someone’s drink to make sexual advances upon them. In legal terms, date rape is a form of sexual battery. It often occurs with someone the victim is already acquainted with such as a friend, date, or colleague. When a person believes they have been date raped, it means they have become incapacitated and cannot remember consenting to any sexual engagements. 

Allegations of date rape are most common among young adults in high school or college; however, it can take place anywhere. A person who is accused of date rape in Florida is likely to be charged with sexual battery. Depending on the severity of the offense, a sexual battery charge can range from a second-degree felony to a capital felony. 

Sex Crime Attorney in South Florida 

If you or someone you love has been accused of date rape, it is imperative that you seek out legal help. An experienced defense attorney in West Palm Beach and Fort Lauderdale can assist with strategizing a defense for your case. Sexual battery convictions have some of the harshest penalties in Florida, which is why it is extremely important to work with a sex crime attorney in your area. 

Defining Date Rape 

Date rape is defined as when a person is forced or coerced into having sexual intercourse with a person—possibly an acquaintance or a date. Date rape is a common trend in bars and on college campuses. A date rape allegation often involves the use of alcohol or substances to incapacitate the victim to the point of vulnerability. Using alcohol or “date rape drugs” as a means of coercion or as a chemical restraint is common in allegations of date rape. 

When a person is accused of date rape, the criminal charge they are likely to face is sexual battery. Sexual battery is defined under Florida Statute Section 794.011 as the “anal, oral, or vaginal penetration by, or in union with, the sexual organ or the anal or vaginal penetration of another by any other object.” However, medical purposes do not apply to the Florida law. 

If an individual is charged with sexual battery, it is the responsibility of the State prosecutors to prove the following factors beyond reasonable doubt: 

• The defendant committed sexual battery upon the victim in which 
  • The defendant penetrated or had union the victim’s anus, mouth, or vagina; or 
  • The defendant penetrated the victim’s anus or vagina with an object.
• The victim was physically helpless to resist, and
  • The victim was coerced by the defendant into submitting by threat of force or violence which was likely to cause serious personal injury; or
  • The victim was coerced by the defendant into submitting by a threat of retaliation against the victim, their family, or anyone else, in which the victim had reason to believe the defendant had the ability to carry out the threat; or
  • The defendant administered or had the knowledge of someone else administering an anesthetic, narcotic, or other intoxicating substances to incapacitate the victim physically and mentally without the victim’s consent or knowledge; or
  • The defendant was an officer or person in a position of authority at the time of the alleged date rape, or led the victim to believe they were in a position of power to coerce them; or
  • The defendant had the knowledge or reason to believe the victim was mentally defective; or 
  • The victim was physically incapacitated. 

In addition, the State must acknowledge and prove both the defendant and victim’s age in a date rape case. This is due to the differing charges and penalties that are codified under Florida’s sexual battery statute. Florida charges sexual battery offenses differently depending on the age of offender and victim. 

What is Consent? 

In any sex crime allegation, consent plays an important factor. In many cases, the existence of consent can work as the determining factor between getting charged with a sex crime or having the charges dismissed. 

Under Florida Statute Section 794.011, consent is defined as the “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.” 

After an individual is accused of a sex crime such as sexual battery, consent or the lack of consent is often the main piece of evidence the State will try to prove in order to prosecute the defendant. 

Most Common Date Rape Substances

In a case involving a date rape allegation, the alleged victim has reported the defendant for taking advantage of them without their consent and while unconscious or incoherent to what was happening. One of the reasons “date rape” has its name is due to the alleged offender facilitating the assault by discretely giving the victim a specific substance to incapacitate them. 

The substances listed below have similar effects since they are all considered depressants. However, each person may react differently. With each of these substances, they become more dangerous to the person ingesting it when mixed with alcohol. 

The following is a list of common substances which have been used in date rape cases: 

• Rohypnol – Also referred to as “roofies,” this is the most common date rape drug. The substance is a strong benzodiazepine which is often used to reduce insomnia in countries outside the U.S. Due to the powerful side effects and bad reputation for being used in date rape cases, Rohypnol is illegal in the United States. Rohypnol can be found in an odorless, colorless, and tasteless pill which is easily dissolved into liquid—this is where the term “roofing” comes from in TV and movies, when a person drops Rohypnol into a person’s drink without their knowledge. Within 30 minutes of ingesting, Rohypnol can start having effects on the body. The substance creates amnesia or extreme drowsiness when mixed with alcohol, with effects that can last up to eight hours. 
• Gamma-Hydroxybutyrate – Also referred to as GHB, this substance is commonly used as a prescription to treat or manage narcolepsy. GHB can be found in either a liquid or pill form, and has been used recreationally for the drowsy effect it causes users. The substance can easily be masked with liquids or other substances, as it is both colorless and odorless. The effects of ingesting GHB can kick in within 10 to 20 minutes, and can last up to four hours. When mixed with alcohol, GHB can cause memory loss and sedation. 
• Ketamine – Also referred to as Special K, this substance is a potent, dissociative anesthetic medication. Ketamine can be found in a white powder form or as a clear liquid. Ketamine has also been found mixed with other substances such as MDMA or cocaine. Within 1 to 30 minutes of ingestion, Ketamine can start to influence the body with effects including sedation, pain relief, amnesia, and dissociation. The higher the dose of Ketamine a person ingests, the more likely it is to cause the user to become unconscious or unable to move, sometimes lasting up to an hour. 

A person may believe they’ve been a victim of a “date rape drug” if they feel drunk without drinking alcohol, or if they feel as if the effects from drinking alcohol are much stronger than they usually are. A person may feel as if they have been given a date rape drug in any of the following situations: 

• Waking up in an unknown place, possibly with ripped or torn clothes or unusual stains without any memory; 
• Your body feels as if you have had sex without remembering it; and/or
• Finding unexpected bruises, bleeding, scrapes, or pains. 

After a person believes they have been the victim of sexual assault through date rape, they are advised to seek medical help right away. This is partially due to the fact that some date rape drugs leave the body very quickly—often between 24-72 hours. Waiting to receive medical attention could potentially make it harder to prove they had been drugged. When receiving medical attention, the doctor may test the alleged victim’s hair, blood, urine, or oral fluids to detect date rape drugs or signs of sexual assault. 

Even if there are no traces of a date rape drug, the American Addiction Center has estimated that almost half of all sexual assault cases involve the consumption of alcohol by the offender, the victim, or both. However, it is important to remember that alcohol consumption is not a valid defense to a sexual battery charge. 

Penalties for Sexual Battery 

After a person believes they have been date raped, they can file charges for sexual battery against the alleged offender. 

Florida Statute Section 794.011 explains that a person accused of sexual battery who is 18 years or older and commits sexual battery on a person 18 years or older, without their consent and without the use of physical force or violence likely to cause serious injury can be charged with a felony in the second degree. 

A person younger than 18 years old who commits sexual battery on a person 12 years or older, without their consent and without the use of physical force or violence likely to cause serious injury can also be charged with a felony in the second degree. 

In Florida, the penalties for a second-degree felony include up to $10,000 in fines and up to 15 years in prison. 

Aggravated Penalties 

There are certain circumstances in which a sexual battery charge can have enhanced penalties. Enhancements usually depend on the age of the alleged offender and victim, and whether the assault involved physical force, violence, or resulted in lasting injuries or damages. 

An individual can face a first-degree sexual battery charge in any of the following circumstances:

• A person 18 or older who commits sexual battery upon a victim who is between the ages of 12-18 years and without that person’s consent, in which the victim was physically helpless to resist or was coerced by the offender to submit by either using force or violence in which the victim believed the offender had the ability to execute the threat;
• A person younger than 18 years-old who commits sexual battery upon a victim between the ages of 12-18 years and without that person’s consent, and in the process does not use physical force or violence likely to cause serious personal injury; 
• A person 18 or older who commits sexual battery upon a person between the ages of 12-18 and without that person’s consent, and in the process does not use physical force and violence likely to cause serious personal injury; 
• A person who was previously convicted of a sex crime against a minor and commits sexual battery upon a victim 12 years or older and without that person’s consent, and in the process does not use physical force or violence likely to cause serious personal injury; 
• A person who was previously convicted of a sex crime against a minor and commits sexual battery upon a victim 12 years or older and without that person’s consent, in which the victim was physically helpless to resist or was coerced by the offender to submit by either using force or violence in which the victim believed the offender had the ability to execute the threat; or 
• A person who engages in any act with a person while they are between the ages of 12-18 which constitutes sexual battery. 

In Florida, the penalties for a first-degree felony include up to $10,000 in fines and up to 30 years in prison. 

An individual can face a life felony for a sexual battery charge for any of the following circumstances:

• A person younger than 18 years-old who commits sexual battery, or attempts to commit sexual battery upon a victim and causes injury to the sexual organs of a victim less than 12 years-old; 
• A person who commits sexual battery upon a victim 12 years or older and without that person’s consent, and in the process uses physical force likely to cause serious personal injury, or uses or threatens to use a deadly weapon; or
• A person who engages in any act constituting sexual battery with a victim younger than 12 years-old, and in the process injures the sexual organs of the victim. 

In Florida, the penalties for a life felony include up to $15,000 in fines and up to life imprisonment. 

An individual can face a capital felony for a sexual battery charge for any of the following circumstances: 

• A person 18 years or older who commits or attempts to commit sexual battery upon a victim younger than 12 years-old and in the process causes serious personal injury to the victim’s sexual organs; 
• A person who engages in any act constituting sexual battery with a victim younger than 12 years-old, and in the process injures the sexual organs of the victim (can be charged as a life or capital felony). 

In Florida, a capital felony carries the harshest of punishments. A person convicted of a capital felony offense will face the penalty of life imprisonment without the possibility, or the death penalty. 

College Campuses and Date Rape Trends

One of the most common places for date rape to occur is at a college campus. The combination of young people moving away from home and experimenting with sex and alcohol can turn into a potentially dangerous situation. According to the organization RAINN (Rape, Abuse, & Incest National Network), around 13% of college students will face some type of sexual assault by incapacitation, force, or violence. 

Below is a list of data on date rape trends on college campuses: 

• 26.4% of undergraduate women experience sexual assault during their time in college, as compared to 6.8% of undergraduate men. 
• 9.7% of graduate women experience sexual assault during their time in college, compared to 2.5% of graduate men. 
• It is 78% more likely for male college students between the ages of 18-24 to experience sexual assault than non-college students. 
• It is 20% less likely for women college students between the ages of 18-24 to experience sexual assault than non-college students. 

It is important for college students to be aware of campus police officers and their ability to make arrests both on and off campus. A college student accused of date rape and sexual battery can be arrested by local or campus police, which can lead to criminal charges. 

Possible Defenses to Date Rape 

Sex crimes are some of the harshest prosecuted crimes in the state of Florida. Any person accused of date rape could face serious, life-altering consequences. Each allegation of date rape and sexual assault should be taken very seriously. However, that does not mean each allegation is true. It is extremely important to receive legal guidance as a person who has been accused of date rape, so they can strategize a defense to their case. 

The following is a list of possible defenses that can be used in a case where the defendant has been accused of date rape or sexual battery: 

• Violation of Constitutional Rights – If during any part of the investigation the defendant’s constitutional rights have been violated, this can be used as a defense in a criminal case. 
• Mistaken Identity – Testimonial or DNA evidence can help prove that the accused person was not the offender in the sexual battery case. 
• Factual Challenge – If the defendant claims the sexual assault never occurred, or if there is not enough evidence to prove the sexual battery took place, the defense can make a factual challenge. It is the responsibility of the State to prove the defendant is guilty beyond reasonable doubt. 
• Consent – The victim does not remember that they have provided consent, or have felt a sense or remorse after the sexual engagement occurred. In cases where the victim is younger than 18 years-old, consent is not a valid defense. 
• Mutual Lack of Consent – Both the victim and the defendant were unable to consent due to being incapacitated, meaning both parties were unable to consent to the sexual activity. 

The best way to determine which defense can be used in a date rape case is to speak with a South Florida Defense Attorney. 

Gail’s Law and New Rape Kit Testing

Florida Legislature passed HB 673 in 2021 titled “Gail’s Law” to create stricter regulations regarding rape kit testing. When a person believes they have been the victim of sexual assault, a health care provider will advise the victim to use a sexual offense evidence kit—also known as a “rape kit.” 

Gail Gardner is a Florida citizen who was a victim of sexual battery in 1988, after a man broke into her house with a knife and raped her. After the assault, Gail took a rape kit test, but waited over 30 years for the result. This is partially due to previous massive backlog of rape kits Florida had experienced over the years. 

Now amended under Florida Statute Section 943.326, HB 673 requires all Florida Departments of Law Enforcement (FDLE) to maintain a database for victims to track the process of their rape kit. Now, rape kits will have a barcode placed on it, in which victims can create an account for the tracking website. 

The tracking system will provide information on the test analysis, in hopes of providing sexual assault victims a faster and more efficient way to view evidence provided from the test. In a date rape case, a rape kit test can provide an essential piece of evidence. The passing of Gail’s Law is a step in the right direction to retrieve possible evidence—or lack thereof—from an allegation of sexual battery.   

Resources

• Safe Space Foundation – A webpage of various resources in South Florida for sexual assault, rape, and domestic violence. 

• Florida Council Against Sexual Violence – Certified sexual assault programs in Florida, with information on crisis centers in each county. 

• Project GHB – Information provided on the dangers of GHB and other dangerous substance mixtures. 

Finding a South Florida Date Rape Defense Attorney 

Accusations of date rape are serious, and could lead to serious criminal charges. A conviction for sexual battery has harsh penalties including fines, imprisonment, or both. Sex crime convictions also require the defendant to register as a lifelong sex offender with the Florida Sex Offender Registry. 

It’s important to know that in addition to the legal consequences, a person convicted of a sex crime in Florida will face other negative consequences. This can include getting expelled from university, losing a job, or the possibility of finding housing. If you or someone you know has been accused of date rape, speak with an experienced Palm Beach criminal defense attorney about your options. The attorneys at Ian Goldstein Law have years of experience representing clients accused of criminal offenses in Palm Beach County. Contact our team today to receive a free consultation regarding your case at (561) 600-0950.