Introduction
Understanding your rights and privileges that are afforded under long-established civil law, is empowering to every citizen. Not only is such knowledge the fundamental safeguard of your rights under both Federal and state constitutions, but it is also a powerful tool that can assist in the prevention of egregious physical and mental injuries from occurring. And God forbid they do occur in assessing what your rights are in redressing those wrongs.
Among the most misunderstood concepts in both civil and criminal law is the topic of consent — particularly when it comes to understanding that consent is the property of the consenting party and can be withdrawn at any time.
While many people associate “consent” with sexual activity, the principle extends far beyond intimate settings. It applies to any act involving personal autonomy and bodily integrity — from tattooing and branding rituals in the military and social organizations, to medical procedures or any physical initiation.
Whether it’s a fraternity “branding night” or a tattoo ceremony to symbolize membership in a club, what begins as voluntary participation can cross a legal boundary the moment consent is withdrawn. Florida civil law draws a clear line: once consent is revoked, continuing the act constitutes unlawful conduct giving rise to both criminal as well as civil liability.
Consent Under Florida Law
Medina Law Firm has been active in advocating for justice for families that have been the victim of sexual assault and physical attacks. We have obtained judgments and/or settlements for families that have had to suffer the indignity of the physical and mental damage caused by this seemingly ever prevalent inexplicable behavior. More often than not the victim is vulnerable and easy to attack. Many times, they are isolated not just by proximity, but also emotionally and can often be “tricked” into consent. Just like a Predator in nature singles out the weakest and most vulnerable member of the herd, sexual predators identify and isolate their victims.
Recently, Our firm had the honor of representing a family whose 24-year-old daughter, who had an IQ of 55 was sexually assaulted by a Terminix pest control service provider. The young woman , although physically mature, was developmentally disabled and thus incapable of giving consent under the law. Her disability was clearly evident to anyone that would have even casually encountered her. For all intents and purposes, she was mentally equivalent to a 10-year-old little girl, vulnerable and naïve. The predator who took advantage of her and raped her took advantage of her and ruined her life all done within a 20-minute span when she was left alone while her mother went to the corner convenience store to buy milk.
Despite there being standing orders in the apartment complex that no one was to enter the apartment for any reason unless mom or her adult sister was present. The Terminix employee had keys to the apartments and without notice entered the victim’s apartment and immediately identified that this victim was vulnerable, naïve and could be easily manipulated. Through his actions he manipulated her through his actions coerced her into having sex. It was the young woman’s first sexual encounter.
Under Florida Statute § 794.011, consent must be intelligent, knowing, and voluntary. This means a person must freely agree to participate in an act — without pressure, coercion, or impairment.
This means that in order for consent to be legally valid, the law requires that
consent be:
– Voluntary: Freely given without force, intimidation, or expectation.
– Knowing: Made with a full understanding of what is being consented to.
– Capable: Provided by someone of sound mind, legal age, and not impaired.
– Affirmative: Expressed clearly, not implied through silence or inaction.
– Ongoing: Capable of being withdrawn at any time, for any reason.
Once consent is revoked, any continuation of the act instantly becomes non-consensual conduct and may result in both civil and criminal consequences. This is true regardless of if it occurred in a tattoo chair, initiation ceremony, or intimate encounter . Once lack of consent is expressed whether verbally or physically continuing with the act is actionable civilly.
When Consent Cannot Be Given or Maintained
Florida law also recognizes that some individuals cannot legally or reasonably provide consent — or may lose that capacity during an event. This was the case with our client. Due to her low IQ score she was incapable of giving consent for anything yet alone a sexual act.
Florida law has long recognized that certain individuals are protected by statute and therefore cannot provide consent no matter how mature they may look.
Florida recognizes specific categories of people that simply cannot ever consent or are temporarily incapable of giving informed consent. Some examples of specific categories of individuals that cannot give consent include:
– Minors: Those under the legal age of consent (generally 16).
– Intoxicated individuals: Alcohol or drugs can impair one’s ability to make informed decisions.
– Persons with mental or developmental disabilities: As recognized under Florida Statute § 921.137(1) and the cases interpreting it which establish that a person with an IQ below 70 would be considered developmentally disabled and thereby incapable of having the mental capacity to provide informed consent.
– Victims of coercion or intimidation: Consent obtained through fear, group pressure, or implied consequences is not valid.
In our case our in our case we established that our client was mentally incapacitated through both expert and lay testimony.
Real-World Application: there is no “implied Consent”
The defense of “the actions that the victim was displaying led me to believe I had permission” is no longer valid. The fact is that NO means NO; and NO can be stated at any time. Consider the example of a college fraternity initiation where pledges are encouraged — or pressured — to receive a branding mark as a symbol of loyalty and brother/sisterhood. In these settings, a student initially agrees to the branding or tattooing, convincing themselves it is a “rite of passage” and required in order to join the club or fraternity. However, an individual pressured by older members into being branded or tattooed “for unity” while surrounded by chanting peers is not truly consenting. That environment negates voluntariness — even if the person does not verbally object. We must make it clear to students and organizations that they have the right to withdraw consent up until the time the brand meets the skin. These decisions that have lifelong ramifications must be made knowingly and informed, not in a drunken stupor.
Once the individual changes their mind, and in mid-process and says, “Stop,” any continued act — even for a few seconds — transforms lawful participation into battery and thereby actionable under civil law. In both examples, the initial “yes” does not bind a person forever. Consent is fluid, not permanent.
At Medina Law Firm, we have represented and investigated individuals in cases where peer pressure, social expectation, or intoxication blurred these boundaries. The law, however, is unwavering: no individual, organization, fraternity, or social club has the right to disregard a person’s autonomy once consent has been withdrawn.
Why This Matters
Understanding consent — and its withdrawal — is critical. So often it is the meek and mild that are taken advantage of and abused. That is why the friends and families of these individuals must understand the protections they are entitled to such as:
1. Legal Protection: Knowing your rights prevents situations that could escalate into lawsuits or criminal investigations.
2. Safety in Organizations: Fraternities, Sororities, and clubs must create initiation practices that uphold consent, not pressure conformity.
3. Empowerment: Individuals who understand their right to withdraw consent are more likely to act on it and less likely to suffer harm.
4. Accountability: Organizations that fail to respect withdrawal of consent can face severe liability — both civil and reputational.
At Medina Law Firm, we believe education is the most powerful form of prevention. Understanding that consent is continuous, revocable, and non-negotiable protects not only your rights but the dignity and safety of every person involved. We strive to help families and individuals recover from such grotesque behavior of perpetrators — all because someone’s right to say “No more” was ignored.
Conclusion
Have the power to say NO with confidence. Remember that from the Barroom to the dorm room, consent can always be withdrawn.
About Medina Law Firm
For nearly 40 years, Medina Law Firm has represented victims of negligence, automobile accidents, manufacturing defects, assault, and civil rights violations throughout the United States. Led by Omar F. Medina the firm has tried over 100 cases to verdict in over 10 states and Federal Districts advocating for our clients against major corporations, automobile and component parts manufacturers, Fortune 500 companies and all major insurance carriers doing business in the United States.
Contact Information:
Omar F. Medina, Esq.
Thomas S. Martino, Jr. Esq.
Medina Law Firm
Phone: (813) 258-5838
Email: omedina@medinalawfirm.com
Website: www.medinalawfirm.com