## Facts

- B.B., age 16, was charged in juvenile court after engaging in consensual sexual intercourse with another 16-year-old.
- The State initially filed a delinquency petition for sexual battery, then amended the petition to charge “unlawful carnal intercourse” under section 794.05, Florida Statutes (1991).
- B.B. moved to declare section 794.05 unconstitutional under Article I, section 23 of the Florida Constitution (privacy) and to dismiss the petition.
- The trial court granted the motion and dismissed, concluding the statute impermissibly infringed B.B.’s state constitutional privacy rights on these facts.
- The district court reversed and certified a question of great public importance to the Florida Supreme Court regarding whether the privacy amendment renders section 794.05 unconstitutional as applied to a minor’s consensual sexual activity.

## Issues

1. Whether Article I, section 23 of the Florida Constitution renders section 794.05 (1991) unconstitutional as applied to consensual sexual intercourse between two consenting 16-year-olds.
2. Whether the State’s interest in protecting minors justifies applying section 794.05 to peer-age, consensual conduct, consistent with strict scrutiny under Florida’s privacy jurisprudence.

## Decision

- The Florida Supreme Court answered the certified question in the affirmative as applicable to B.B.’s prosecution.
- The Court held section 794.05 unconstitutional as applied to consensual sexual activity between two 16-year-olds.
- The Court approved the trial court’s dismissal and rejected the district court’s reversal.
- The Court limited its holding to the “unique facts” presented and did not declare the statute facially invalid.

## Legal Principles

- Florida’s privacy amendment (Art. I, § 23) provides broader privacy protection than the federal constitution and can protect private, consensual sexual activity, including in certain contexts involving minors.
- When the State intrudes on protected privacy interests, it must show a compelling state interest and that the intrusion is accomplished by the least intrusive means (strict scrutiny).
- Section 794.05, as applied to consensual intercourse between two same-age 16-year-olds without coercion or exploitation, fails strict scrutiny because the criminalization is not justified by the asserted protective interest on those facts.
- A statute may be held unconstitutional “as applied” to a specific prosecution even if it may constitutionally operate in other factual settings.

## Conclusion

The Florida Supreme Court held that applying section 794.05 to prosecute a 16-year-old for consensual intercourse with another 16-year-old violates the Florida Constitution’s privacy amendment, and it approved dismissal of the delinquency petition on an as-applied basis limited to those facts.


B.B. v. State, 659 So. 2d 256 (Fla. 1995)