Florida Domestic Violence Defenses: Consent

Everyone understands the basic concept of self defense to an assault, a battery or any form of domestic violence. But . . . consent?

Yes, consent is a defense to many (but not all) forms of assault, battery and domestic violence. Here are some caveats:

• Will work for misdemeanor charges, such as battery, domestic violence
• Will not work for felony charges such as aggravated battery, domestic violence

For example, let's say a couple has had a few drinks at a party and starts arguing. During the argument, one party spreads their hands wide and says "take your best shot." The best shot does not rise to the level of an aggravated battery with great bodily harm, but does result in the braggart complainant getting hit in the stomach and dropped to the floor breathless.

As the party attendees commence to howling in laughter, and the complainant begins hurting more from the wound to the pride, 911 gets called and the happy occasion of spontaneous entertainment during sobriety challenged festivities ends when the police arrive.

Although winner initiator of the fight gets a free ride to jail and is ultimately charged with domestic violence, battery, when it goes through the wringer legal process and comes up for trial, the defense of consent will prevail.

This defense is related to mutual combat (which presumes both parties are at fault), but is unique in that it is as if the case law is really saying, "Hey! Idiot! Don't ask for someone to take their best shot and then complain when they did!" However, in the case of aggravated battery, the law also basically says "no, you can't break someone's jaw or cut their arm off - that's not allowed."

This last one actually happened in a case I handled eons ago: my client instigated a second fight after the first one resulted in his friend getting beaten to the ground in the parking lot. During the fight, which occurred three weeks after getting out of prison, he cut the other person's arm so badly, it had to amputated. His defense? The guy asked for it: consent.

Yet this defense was of no avail, and he was sentenced to eight (8) years in prison (the State originally wanted fifteen (15), but we worked out a deal.

So, yes, consent is a defense to battery and assault, in both domestic and non-domestic scenarios. However, if given the option to take your best shot, your best bet is to decline.


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