MEMORANDUM OF LAW Date: APRIL 16, 2010 To: RDC From: MLS RE: Consent to Battery Involving Criminal Sexual Activity This memorandum addresses the issue of consent as a defense to a civil action based upon criminalized sexual activity between a minor and adult. I have not had an opportunity to finish researching the Legislative History or additional §796.09 issues that you discussed with me this morning and later this afternoon. The question of whether a plaintiff in a civil action can use the criminal statute to negate consent will depend on the statute's underlying purpose. This particular issue is unsettled in Florida, as it appears to be in other jurisdictions as well, based on the particular language in the specific penal statute at issue. I. PRIVATE CAUSE OF ACTION Florida Statutes provide a cause of action for criminal prosecution for a) Sexual Battery (§794.011); b) Unlawful Sexual Activity (§794.05); and c) Lewd and Lascivious Offenses (§800.04(4-7)). However, none of these criminal statutes expressly provide for a private cause of action, based upon a violation of these statutes. In contrast, see §796.09, Florida Statutes, expressly provides a private civil cause of action.' With that said, generally speaking, consent will not be held to be a valid defense when it is obtained from an individual that lacks capacity to give consent, such as a ' Faulkner v. Graske, 2008 WL 3832639 7 (S.D.Fla. 2008), relying on federal and Florida law, the Southern District of Florida dismissed the claims with prejudice finding that the claims were based upon violations of statutes that do not establish private rights of action. See also Horowitz v. Plantation General Hosp. Ltd. P'ship 959 So.2d 176, 182 (Fla.2007)(noting that under Florida law when determining whether a statute confers a private right of action a court must look at the legislative intent and that the primary guide to determining legislative intent is the plain language of the stat