Justia Lawyer Rating
Super Lawyers
The National Trial Lawyers
Avvo Rating

Sexual Battery

Defendants facing sexual battery charges have a high likelihood of being treated unfairly by the criminal justice system and the general public. Many people including judges, prosecutors, friends and even family can assume a defendant is guilty before looking at the actual evidence. A sexual battery charge carries a stigma that can sometimes feel unsurmountable, but this could not be further from the truth. A skilled and experienced lawyer can fight back against the state to protect your freedom and restore your reputation. Benjamin Herbst is a South Florida criminal lawyer who specializes in sexual battery defense. He has successfully defended dozens of clients who have been accused of rape and sexual battery, and has achieved multiple dismissals and charge reductions. Benjamin represents clients in the Tri-County jurisdictions of Miami-Dade, Broward and Palm Beach County, and is also an experienced Martin and St. Lucie County criminal lawyer. He is standing by to offer free consultation at (954) 543-0305, and has flexible office hours at his Fort Lauderdale and West Palm locations. Benjamin is also willing to meet at a convenient location anywhere from South Miami to Port St. Lucie.

Under Florida law a sexual battery means that there was some sort of penetration. Touching or rubbing typically will not fall under this statute, and could be charged as a different sex offense. In addition to penetration, the other main element that the state must prove in any Florida sexual battery case is that the act was done without the consent of the victim. Consent can be a more complicated issue, as the two sides can have completely different recollections of whether consent existed. In addition, the issue of consent is almost never supported by physical evidence, and rather comes down to the word of the victim. In contrast, the state will often be able to present physical evidence that penetration occurred. The problem is that law enforcement and prosecutors have a history of succumbing to pressure from the victim, and often file charges when consent is in doubt. Benjamin will not let charges based on the victim’s word stand up in court. He has extensive experience cross examining victims in court, and will fight tooth and nail to expose any inconsistencies in the victim’s story.

The basic definition of an act done without consent is when the victim says no or physically resists and the defendant ignores this and proceeds anyway. Under Florida law though, the definition of consent is more layered. The state does not actually have to prove the victim resisted or told the defendant to stop, as evidence of submission under duress or coercion would satisfy the consent element of sexual battery. The state may also try to prove the act was done without consent by arguing that the victim was mentally incapacitated or physically helpless. Mental incapacitation means that the victim was temporarily incapable of consenting due to the influence of drugs or alcohol. In these cases, the victim can actually consent to the sexual act in the moment but then later say it was done without consent. The state can technically prosecute an individual on this theory even if he or she did not know the mental state of the victim, which seems incredibly unjust. In this scenario the state would have to prove by circumstantial evidence that the defendant should have known the mental state of the victim. Benjamin has defended clients under this scenario and will do whatever it takes to show his client could not have reasonably known the condition of the victim.

Physically helpless is another common theory that the state may argue in order to prove there was no consent in a sexual battery case. Under Florida law a physically helpless victim is one that is either asleep or otherwise physically unable to communicate unwillingness to participate in an act. The theory of physically helpless often comes down to the word of the victim, as these types of cases rarely have objective witnesses who can testify to the condition of the victim at the time of the act. The state will try to produce evidence of the victim’s condition before and after the act, but Benjamin will put this theory under intense scrutiny. The bottom line is that the state must prove the victim was physically helpless at the time of the act, and not an hour before or after. Benjamin has successfully represented defendants charged with sexual battery on a physically helpless individual in Florida, and is standing by to offer a free consultation how he can defend you.

Sexual battery can range anywhere from a life felony if it was committed by the use of force, with a weapon or on a child, to a second-degree felony if there were no aggravating factors involved. Sexual battery on a physically helpless individual is a first-degree felony under Florida law, and is perhaps the most common charge due to the involvement of drugs and alcohol. It is also a charge that is commonly filed against a completely innocent individual who had no intention of committing a crime. Benjamin understands that the consequences involved with anyone facing a sexual battery charge, and will not only fight to keep his clients out of jail but also will preserve their future by fighting to have the charges dropped. All sexual battery charges carry mandatory sex offense registry upon conviction, and this could be a lifetime sentence that could affect a person for decades. Benjamin has the experience defending sexual battery cases in South Florida to be able to argue all available defenses, and he will never back down from the state at trial. If you have been charged or are under investigation for any sex offense call Benjamin today at (954) 543-0305.

Client Reviews
My family and I could not be more grateful for everything you did for me. I truly thought my future would be permanently impacted and I would never be able to join the military or even go to college. Because of your hard work I still have the opportunity to do both. Thank you so much! - T.S.
Hiring you was the best decision I’ve made in a long time. Thank you for supporting me and for your willingness to take the state to trial. Another lawyer may have tried to get me to take a plea, but you were ready to fight from day one. I’m so glad to have this case behind me, and have you to thank for it. - R.D.
I can’t thank you enough for your personal attention to the mess I got myself into. You don't know what a relief it is to be done with this criminal case. I never ever thought I would have been charged with a crime, but having you as my lawyer made the entire situation bearable. You gave me confidence that I would be able to overcome this from day one, and you followed through. Take care of yourself and your family, and thanks again for everything! - S.S.
You never backed down from the state, and you supported my decision to go to trial. Then you delivered in court. I appreciate you Ben. - T.C
I appreciate the hard work you put into my case, and my wife and I can’t thank you enough. Without you I could have lost everything. I’ll never forget what you did for me. - J.B.