Lewd or Lascivious Exhibition in Florida
Lewd or Lascivious Exhibition criminalizes intentional sexual performance in the presence of a child younger than 16.
Lewd or Lascivious Exhibition criminalizes the intentional sexual performance or sexual exposure by an adult in the presence of a child younger than 16.
Definition of Lewd or Lascivious Exhibition
Under Florida Statute 800.04(7), the crime of Lewd or Lascivious Exhibition is committed when a person intentionally masturbates; exposes their genitals in a lewd or lascivious manner; or commits other sexual act in the presence of a child, such as sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a child younger than 16.
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.
Strict Liability Crime
Importantly, Lewd or Lascivious Exhibition is a strict liability crime.
The reason Lewd and Lascivious Exhibition is a strict liability crime is to counteract the commonly raised defenses that:
- The child’s real age was unknown, thus the sexual conduct with the child was unintentional; or
- That the child consented to the sexual conduct, thus putting the responsibility to decline the sexual advance on the young child.
Penalties for Lewd or Lascivious Exhibition
The penalties for Lewd or Lascivious Exhibition depend on whether the offender was a minor or an adult when the Lewd and Lascivious Exhibition was committed.
Lewd or Lascivious Exhibition by an Adult
The crime of Lewd or Lascivious Exhibition by a person 18 or older is a Second Degree Felony punishable by up to fifteen years in prison, fifteen years of sex offender probation, and a $10,000 fine.
Under Florida’s Criminal Punishment Code, Lewd or Lascivious Exhibition by a person 18 or older is assigned a Level 5 offense severity ranking and, absent prior criminal history or grounds for a downward departure sentence, a judge is required to sentence a person convicted of Lewd or Lascivious Exhibition by a person 18 or older to a minimum sentence of two years of sex offender probation. [1]
Lewd or Lascivious Exhibition by a Minor
The crime of Lewd or Lascivious Exhibition by a person younger than 18 is a Third Degree Felony punishable by up to five years in prison, five years of sex offender probation, and a $5,000 fine.
Under Florida’s Criminal Punishment Code, Lewd or Lascivious Exhibition by a person younger than 18 is assigned a Level 4 offense severity ranking and a judge is required to sentence a person convicted of Lewd or Lascivious Exhibition by a person younger than 18 to a minimum sentence of two years of sex offender probation. [1]
Gain Time Ineligibility
A person sentenced to prison for Lewd and Lascivious Exhibition is ineligible for gain time and must serve the entirety of their prison sentence, day-for-day. [2]
Civil Consequences
A person convicted of Lewd and Lascivious Exhibition would not only be placed on sex offender probation, but would also be declared a sexual offender.
As a result, they would be required to comply with sexual offender registration laws in Florida and throughout the United States for the remainder of their lives.
Romeo and Juliet Exception
The only exception to the mandatory sex offender designation is if the person falls under Florida’s “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.
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.
Defenses to Lewd or Lascivious Exhibition
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, the two primary defenses to the crime of Lewd and Lascivious Exhibition are:
False Allegations
Typical reasons for false allegations include:
- Jealousy,
- Manipulation of children by an angry parent,
- Mental illness of the accuser,
- Mentally ill parents influencing a child, or
- Parental Alienation.
Lack of Lewd Intent
It is a defense to the charge of Lewd and Lascivious Exhibition if it can be shown there was no intent to expose the child to the sexual performance or sexual exposure that occurred.
Prohibited Defenses to Lewd or Lascivious Exhibition
Because Lewd or Lascivious Exhibition is a strict liability crime, the following defenses are statutorily prohibited from being raised at trial:
Consent
Consent by the child to the alleged sexual exhibition is a statutorily prohibited defense - meaning it cannot even be argued at trial.
Ignorance of the Child’s Age
Ignorance of the child’s age is also a statutorily prohibited defense to the crime of Lewd or Lascivious Exhibition - meaning it cannot be argued at trial.
This means a defendant cannot admit to the Lewd or Lascivious Exhibition, but argue that the act of Lewd or Lascivious Exhibition was justified because:
- The child lied about his or her age; or
- There was a bona fide belief the child was old enough to consent to the Lewd or Lascivious Exhibition.
With that said, if it is being argued that the allegation of Lewd or Lascivious Exhibition is false; a defendant can elicit testimony that the accuser lied about his or her age - as such testimony goes to the accuser’s credibility.
Proximity in Age
A reoccurring problem in Lewd and Lascivious Exhibition cases is when the accused is also under the age of 16; as the law does not provide for any defense when the participants are close in age.
Example: If a 12 year-old and a 14 year-old were to engage in mutual sexual exhibition, either child or both could be prosecuted for the offense.
Instead, proximity in age can only be used as a mitigating circumstance to seek a downward departure from Florida’s sentencing guidelines.
Contact Orlando Criminal Defense Attorney
If you have been arrested or charged with the crime of Lewd or Lascivious Exhibition in Central Florida or the Greater Orlando area, contact Orlando Criminal 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.