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Lewd or Lascivious Conduct in Florida

Lewd or Lascivious Conduct criminalizes the touching of a child younger than 16 in a lewd or lascivious manner that falls short of lewd or lascivious molestation.

If accused of Lewd or Lascivious Conduct, you want to know the:

• Definition of Lewd or Lascivious Conduct
• Penalties for Lewd or Lascivious Conduct
• Defenses to Lewd or Lascivious Conduct
  • Prohibited Defenses to Lewd or Lascivious Conduct

Definition of Lewd or Lascivious Conduct

In Florida, the crime of Lewd or Lascivious Conduct 1 is defined as:

• Intentionally touches a person under 16 years of age in a lewd or lascivious manner
  
• OR
• Soliciting a person under 16 years of age to commit a lewd or lascivious act.

Definition of "Lewd or Lascivious"

The words "lewd" and "lascivious" are synonymous (mean the same thing) and are defined as a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Penalties for Lewd or Lascivious Conduct

The penalties for Lewd or Lascivious Conduct depend on whether the offender was over or under the age of 18 when the Lewd and Lascivious Conduct occurred.

Over 18 Years of Age

A person charged who was over the age of 18 when the alleged Lewd or Lascivious Conduct occurred is facing a felony of the second degree.

Lewd and Lascivious Conduct punishable as a felony of the second degree is classified as a level 5 offense under Florida's sentencing guidelines. As a result a first time offender would be facing:

• A maximum sentence of fifteen (15) years in prison, and
• A minimum sentence sentence of:
  • Two and one-half (2½) years in prison if touching is alleged, or
  • Probation if only solicitation is alleged.

Under 18 Years of Age

A person charged who was under the age of 18 when the alleged Lewd or Lascivious Conduct occurred is facing a felony of the third degree.

Lewd and Lascivious Conduct punishable as a felony of the third degree is also classified as a level 5 offense under Florida's sentencing guidelines. As a result a first time offender would be facing:

• A maximum sentence of five (5) years in prison, and
• A minimum sentence sentence of:
  • Two and one-half (2½) years in prison if touching is alleged, or
  • Probation if only solicitation is alleged.

Mitigating Circumstances

Under certain circumstances, the court can deviate from the minimum prison sentence required under Florida's sentencing guidelines if it can be shown:

• The child was an initiator, willing participant, aggressor, or provoker of the incident;
• The defendant requires specialized treatment for a mental disorder (unrelated to substance abuse or addiction) and is amenable to treatment; or
• The defendant is to be sentenced as a youthful offender before the defendant's 21st birthday.

Civil Consequences

Additionally, if a person is convicted of Lewd or Lascivious Conduct, they would be declared a sexual offender and would be forced to comply with sexual offender registration laws throughout Florida and the United States.

Defenses to Lewd or Lascivious Conduct

Since ignorance of the child's age is a statutorily prohibited defense to the crime of Lewd and Lascivious Conduct, the two primary defenses raised are:

1. False Allegation, and
2. Lack of Lewd Intent.

False Allegations

Typical reasons for false allegations include:

• Jealousy,
• Manipulation of children by an angry parent,
• Mental illness of the accuser, or
• Mentally ill parents influencing a child.

Lack of Lewd Intent

The core of the offense of Lewd and Lascivious Conduct is a lewd or lascivious intent. As a result, it is a defense to the charge of Lewd and Lascivious Conduct if it can be shown there was no lewd or lascivious intent.

Prohibited Defenses to Lewd or Lascivious Conduct

Lewd or Lascivious Conduct is a strict liability crime - meaning the intent to commit the crime is irrelevant to a determination of guilt.

The reason for holding people strictly liable for their acts is to counteract the common arguments that:

• The child's real age was unknown, thus they did not intentionally engage in sexual activity with a child - a defense that allowed people to engage in willful blindness; or
• That the child consented to the sexual act - thus putting the responsibility to decline the sexual advance on the young child.

As a result, the Florida legislature enacted statutes prohibiting such defenses - thus the lewd or lascivious act was all that had to be proven.

As a result, the following defenses are statutorily prohibited from being raised at trial:

1. Consent, or
2. Ignorance of the child's age.

Instead, such evidence can only be presented as mitigating circumstance in sentencing.

Prohibited Defense: Consent

Consent by the child to the sexual act is a statutorily prohibited defense - meaning it cannot even be argued at trial.

Prohibited Defense: Ignorance of Age

Ignorance of the child's age is also a statutorily prohibited defense - meaning it cannot be presented through the defendant at trial.

This means a defendant could not testify that:

• The child lied about his or her age
  or
• There was a bona fide belief the child was old enough to consent.

With that said, if it is being argued that the sexual allegation is false; a defendant could elicit testimony that the accuser lied about his or her age - as it goes to the accuser's credibility.

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The material on this page represents general legal advice. Since the law is continually changing, some of the provisions contained here may be out of date. It is always best to consult a criminal defense attorney about your legal rights and responsibilities regarding your particular case.

The hiring of a Florida criminal lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a criminal defense lawyer / client relationship.

Contact Criminal Defense Lawyer Charley Demosthenous

If you have been arrested or charged with a crime, please contact Tampa Criminal Defense Attorney Charley Demosthenous today. The sooner you contact me, the sooner I can establish a defense on your behalf.

The initial consultation is free of charge and I will inform you of possible defense strategies and/or remedies. I am available 24 hours a day, 7 days a week. (813) 857-8237

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William S. Foley, P.A.
Divorce and Family Law

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