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Is this rape?

Cape Coral, FL |

If an intoxicated woman GIVES VERBAL CONSENT to a man to have sex with her, and wants to say it was rape the next day, is it rape?

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Attorney answers 3


The answer is, "It depends."

The question comes down to if the woman was too intoxicated to give consent and if a reasonable person should have known she was too intoxicated to give consent. There's a lot of room between those "if" questions for a good attorney to argue reasonable doubt.

You have a lot to lose. I grew up in North Fort Myers, went to school with Mike Scott, Lee County's Sheriff, and I can tell you that the Lee County circuit courts are NOT to be taken lightly.

Please hire a Florida criminal defense attorney ASAP (the sooner the better). Don't listen to attorneys who say to only hire a "local attorney." All our Florida Bar cards read "Florida" on them, not "City X." For misdemeanors, I would agree that it is usually less expensive to hire locally, but cheaper doesn't necessarily mean "better."

Find an attorney with whom you are comfortable even if you must pay more. Using today's outstanding technologies, Florida defense attorneys can easily handle criminal defense cases across the state. Sometimes, defense attorneys can convince assistant state attorneys not to file charges or file reduced charges while the case is in intake. No attorney, of course, can make you any promises whatsoever about a specific outcome.

I'm a Florida personal injury, criminal defense, and federal civil rights lawyer. If you have personal injury, criminal defense or federal civil rights case and are interested in my services, then please go to my Avvo profile and email or call me. I cannot contact you.

Christopher Robert Dillingham II

Christopher Robert Dillingham II


Many of us work late night and weekend hours, so call an attorney for a free consultation right now, and do not delay. These situations do not get better with time.


If one is intoxicated then one is, at least arguably, legally incapable of giving consent. However, that does not automatically make it sexual battery (there is no "rape" in FL and each case is unique) but it is definitely a factor that the State will consider when evaluating the case.

If I were you I would not get into anymore detail online. Sexual battery cases are most serious and can carry lifelong consequences. Instead, I would use the locator on either Avvo or on FACDL (Fl Assn of Criminal Defense Lawyers) @ to find an experienced Cape Coral area criminal defense lawyer, make an appointment and engage in a personal face to face conversation.

There is nothing that you personally can do to stop the alleged victim from calling the cops or rom pressing the State for charges to be filed, but, an experienced criminal defense attorney may just be able to accomplish what you cannot.

I hope that this has been helpful and wish you god luck!

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)


This is a very serious allegation that requires an investigation into all of the facts. A conviction can result in serious jail time and mandatory reporting as a sex offender for the rest of your life. Use the Avvo Find a Lawyer tool to locate an experienced criminal defense attorney in your area.

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