Senate approves bill upgrading charge if rape victim is ‘mentally incapacitated’

Sexual battery on someone incapacitated would be a first-degree felony.

The Senate on Tuesday unanimously approved a bill that makes it a first-degree felony for someone to sexually batter someone who is so drunk or stoned it should be clear the victim is mentally incapacitated.

“Anybody who takes advantage of anyone who is incapacitated, whether they caused it or not, is going to be held accountable, because rape is rape,” said the sponsor, Orlando Democratic Sen. Linda Stewart.

The Sexual Battery on a Mentally Incapacitated Person bill (SB 868) got a 38-0 approval vote on the Senate floor Tuesday, after it sailed through three committees without ever getting a single “nay” vote.

SB 868 aims to close something of a loophole in Florida laws involving sexual battery.

The law makes sexual battery — rape — a first-degree felony if the perpetrator makes the victim drunk or stoned to the point of mental incapacitation without the person’s consent, by providing the alcohol or drugs, and then sexually assaults an unwitting victim.

Under current Florida law, a person is not deemed “mentally incapacitated” if the person knowingly and voluntarily consumed a narcotic, anesthetic, or other intoxicating substance. That makes a sexual battery no more than a second-degree felony.

The committees heard testimony from rape victims who told of awakening to find they had been sexually assaulted while unconscious, but who acknowledge that they took the intoxicating substances themselves.

SB 868 would change the sexual battery statute to make it a first-degree felony if the batterer did not make the victim incapacitated, but should have seen that the victim was unable to give conscious consent, Stewart said.

A problem remains with Democratic Rep. Emily Slosberg-King’s House version of the bill (HB 525), which has stalled without any committee hearings.

“We’re still being challenged on what to do with that on the House side,” Stewart said. “We’re looking for a vehicle to attach it to. That’s where we’re at right now.”

Scott Powers

Scott Powers is an Orlando-based political journalist with 30+ years’ experience, mostly at newspapers such as the Orlando Sentinel and the Columbus Dispatch. He covers local, state and federal politics and space news across much of Central Florida. His career earned numerous journalism awards for stories ranging from the Space Shuttle Columbia disaster to presidential elections to misplaced nuclear waste. He and his wife Connie have three grown children. Besides them, he’s into mystery and suspense books and movies, rock, blues, basketball, baseball, writing unpublished novels, and being amused. Email him at [email protected].


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