Lewd and Lascivious

Chapter 800 contains a variety of crimes generally considered “lewd and lascivious.” The severity of the crime depends on several factors including the activity done by the perpetrator, the age of the perpetrator, and the age of the victim.

The crime can be charged as lewd and lascivious battery, exhibition, conduct, or molestation.

The Florida Legislature has made it clear that certain types of defenses are not available to a defendant in a lewd and lascivious case. For instance, Section 800.04(2) provides that “[n]either the victim’s lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section.”

Additionally, the statute for lewd and lascivious behavior also provides in § 800.04(3) that the perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of their age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense in a prosecution under this section.

Attorney for Lewd and Lascivious Crimes in Pasco County, FL

If you were charged with any type of crime involving a lewd and lascivious act, including lewd and lascivious molestation, conduct, exhibition or battery, then contact an experienced criminal defense attorney at Sammis Law Firm.

We fight various types of sexually motivated crimes throughout Pasco County, FL, including sexual battery and lewd and lascivious conduct.

We have a second office in New Port Richey in Pasco County, directly across from the West Pasco Judicial Center. Our main office is conveniently located in downtown Tampa.

Call (813) 250-0500 to discuss your case.

Lewd and Lascivious Battery

The most serious type of lewd and lascivious offense is “Lewd and Lascivious Battery.” This crime is defined as:

This crime is defined as:

• engaging in sexual activity with a person 12 years of age or older but less than 16 years of age; or
• encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity. § 800.04 (4).

For purposes of lewd and lascivious battery prosecutions in Florida, the statute defines “sexual activity” to include “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 800.04(1)(a).

Lewd and Lascivious Conduct

Under § 800.04(1)(a), the second level of lewd behavior is known as “lewd and lascivious conduct.” Under § 800.04(6), F.S., this crime is defined as:

• intentionally touching a person less than 16 years of age in a lewd or lascivious manner; or
• soliciting a person less than 16 years of age to commit a lewd or lascivious act.

Lewd and Lascivious Exhibition

Under § 800.04(7), the third level of lewd behavior is known as “lewd and lascivious exhibition.” This crime includes:

• intentionally masturbating;
• intentionally exposing the genitals in a lewd or lascivious manner; or
• intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age.

Lewd and Lascivious Molestation

Under § 800.04(5), the fifth level of lewd behavior is known as “lewd and lascivious molestation.” This crimes includes:

• intentionally touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or
• forcing or enticing a person under 16 years of age to so touch the perpetrator.

Double Jeopardy in Lewd and Lascivious Cases

In many prosecutions for sex crimes, important defenses surround issues of double jeopardy. When cases have elements of both a sexual battery and lewd or lascivious conduct, prosecutors may draft the information to charge the defendant with each possible offense.

Double jeopardy issues can arise, however, if the charges are based on the same act or occurrence or are in the course of the same activity. If uncertain of the proof, the cautious prosecutor will probably charge. But the issue of double jeopardy can arise if the charges are based on the same act or occurrence or are in the course of the same activity.

As explained by the courts, “[i]f uncertain of the proof, the cautious prosecutor will probably charge sexual battery and lewd and lascivious conduct in separate counts, recognizing, however, that only one conviction can be obtained for the same conduct.” State v. Hightower, 509 So. 2d 1078, 1079 (Fla. 1987) (superseded on other grounds).

The prohibition against double jeopardy permits conviction on only one count when:

• charges arise as part of a single episode;
• involve the same victim;
• take place in one location; and
• have no meaningful temporal break between acts.

The prosecutor might try and show, however, that there are sufficient facts to establish both offenses as separate and distinct offenses allowing a conviction for both sexual battery and lewd and lascivious.

Types of Lewd and Lascivious Offenses in Florida

Section 800.02 – A person who commits any unnatural and lascivious act with another person commits a misdemeanor of the second degree.

Section 800.04(4) – A person commits lewd or lascivious battery by:

1. Engaging in sexual activity with a person 12 years of age or older but less than
2. 16 years of age; or
3. Encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.

Except as provided below in (4)(c), an offender who commits lewd or lascivious battery commits a felony of the second degree.

Section 800.04(4)(c) – A person commits a felony of the first degree if the person is an offender 18 years of age or older who commits lewd or lascivious battery and was previously convicted of a violation of:

1. Section 787.01(2) or s. 787.02(2) when the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed against the minor a sexual battery under chapter 794 or a lewd act under this section or s. 847.0135(5);
2. Section 787.01(3)(a)2. or 3.;
3. Section 787.02(3)(a)2. or 3.;
4. Chapter 794, excluding s. 794.011(10);
5. Section 825.1025;
6. Section 847.0135(5); or
7. Section 800.04(4)(c).

Section 800.04(5)(b) – An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony.

Section 800.04(5)(c) – Lewd and lascivious crimes charges as a second-degree felony include:

1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age,

Section 800.04(5)(d) – An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree.

Section 800.04(5)(e) – A person commits a felony of the first degree if the person is 18 years of age or older and commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age and the person was previously convicted of a violation of:

1. Section 787.01(2) or s. 787.02(2) when the violation involved a victim who was a minor and, in the course of committing the violation, the defendant committed against the minor a sexual battery under chapter 794 or a lewd act under this section or s. 847.0135(5);
2. Section 787.01(3)(a)2. or 3.;
3. Section 787.02(3)(a)2. or 3.;
4. Chapter 794, excluding s. 794.011(10);
5. Section 825.1025;
6. Section 847.0135(5); or
7. Section 800.04(5)(e).

Section 800.04(6)(b) – An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.

Section 800.04(6)(c) – An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree.

Section 800.04(7)(b) – An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree.

Section 800.04(7)(c) – An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a felony of the third degree.

Section 800.09 – A person who is detained in a facility may not:

1. Intentionally masturbate;
2. Intentionally expose the genitals in a lewd or lascivious manner; or
3. Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to:
   • sadomasochistic abuse;
   • sexual bestiality; or
   • the simulation of any act involving sexual activity;
   • in the presence of a person they know or reasonably should know is an employee.
   • A person who violates such commits lewd or lascivious exhibition in the presence of an employee, a felony of the third degree.

Defenses to Lewd and Lascivious Crimes

As provided in § 800.04(8), a mother’s breastfeeding of her baby does not under any circumstance constitute a violation of this section.

The Florida Legislature has also made it clear that certain types of defenses are not available to a defendant in a lewd and lascivious case. For instance, Section 800.04(2) provides that “[n]either the victim’s lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section.”

Additionally, the statute for lewd and lascivious behavior also provides in § 800.04(3) that the perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of their age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense in a prosecution under this section.

This article was last updated on Thursday, June 27, 2019.