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
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 Second Degree is assigned a level 5 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 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 is punishable as a felony of the third degree and assigned a level 5 offense severity ranking under Florida's Criminal Punishment Code.
As a result, a first time offender would be facing:
- A maximum sentence of five (5) years in prison, and
- A minimum 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 not only be placed on sex offender probation, but also be declared a sexual offender.
As a result, they would be required to comply with sexual offender registration laws throughout Florida and the United States for the remainder of their lives.
Romeo and Juliet Exception
In 2007, Florida enacted what is commonly referred to as the "Romeo and Juliet" law.
This law allows certain individuals to petition the court to be excluded from the sex offender registry. However, you can only petition for exclusion if the facts of your crime meet very specific eligibility requirements.
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:
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:
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.
Contact Orlando Criminal Defense Attorney
If you have been arrested or charged with Lewd and Lascivious Conduct in Central Florida or the greater Orlando area, please contact Sex Crimes Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.