Lewd or Lascivious Molestation in Florida

Lewd or Lascivious Molestation criminalizes consensual sexual interaction with a child younger than 16 that falls short of lewd or lascivious battery.

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

Definition of Lewd or Lascivious Molestation

In Florida, the crime of Lewd or Lascivious Molestation [1] is defined as:

  • Intentionally touching the breasts, genitals, or buttocks of a child younger than 16 in a lewd or lascivious manner;
  • OR
  • Encouraging, forcing, or enticing a child younger than 16 to touch another person in a lewd or lascivious manner.

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 Molestation

The penalties for Lewd or Lascivious Molestation vary based upon the age of the offender and whether the child was over the age of 12.

As a result, Lewd and Lascivious Molestation will be prosecuted as either a:

  • Life Felony: It is a life felony if a person over the age of 18 commits Lewd and Lascivious Molestation on a child under the age of 12.
  • Second Degree Felony: It is a felony of the second degree if a person:
    • Over the age of 18 commits Lewd and Lascivious Molestation on child older than 12, but younger than 16.
    • Under the age of 18 commits Lewd and Lascivious Molestation on child younger than 12.
  • Third Degree Felony: It is a felony of the third degree if a person under the age of 18 commits Lewd and Lascivious Molestation on child older than 12, but younger than 16.

Life Felony Penalties

A first time offender charged with Lewd and Lascivious Molestation punishable as a life felony would be facing:

  • A maximum sentence of life in prison, and
  • A minimum sentence sentence of twenty-five (25) years in prison followed by probation or community control for the remainder of the person's natural life.

Second Degree Penalties

Lewd and Lascivious Molestation punishable as a felony of the second degree is assigned a Level 7 offense severity ranking under Florida's Criminal Punishment Code.

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 four and one-quarter (4¼;) years in prison.

Third Degree Penalties

Lewd and Lascivious Molestation punishable as a felony of the third degree is assigned a Level 6 offense severity ranking under Florida's Criminal Punishment Code.

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 three (3) years in prison.

Mitigating Circumstances

Under certain circumstances, in second and third degree felony cases, 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 Molestation, 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 Molestation

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

  1. False Allegation, or
  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 Molestation is a lewd or lascivious intent. As a result, it is a defense to the charge of Lewd and Lascivious Molestation if it can be shown there was no lewd or lascivious intent when engaging in the contact.

Prohibited Defenses to Lewd or Lascivious Molestation

Lewd or Lascivious Molestation 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,
  2. Ignorance of the child's age, and

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

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.

Contact Orlando Criminal Defense Attorney

If you have been arrested or charged with Lewd and Lascivious Molestation in Central Florida or the greater Orlando area, please contact Sex Crimes Defense Lawyer today.

The initial consultation is free and I am always available to advise you of the proper course of action that can be taken.