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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 need to know the:

Definition of Lewd or Lascivious Molestation

Under Florida Statute 800.04(5), the crime of Lewd or Lascivious Molestation occurs when a person:

  • Intentionally touches the breasts, genitals, or buttocks of a child younger than 16 in a lewd or lascivious manner;
  • or
  • Encourages, forces, or entices 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.

Strict Liability Crime

Lewd or Lascivious Molestation is a strict liability crime.

The reason Lewd and Lascivious Molestation is a strict liability crime is to counteract the commonly raised defenses that:

  • The child's real age was unknown, thus the sexual activity with the child was unintentional; or
  • That the child consented to the sexual act, thus putting the responsibility to decline the sexual advance on the young child.

Penalties for Lewd or Lascivious Molestation

The penalties for Lewd or Lascivious Molestation vary based upon on whether the offender was over or under the age of 18 as well as whether the child-victim was under the age of 12 when the Lewd and Lascivious Molestation occurred.

Lewd or Lascivious Molestation by person 18 or older on a child under 12

The crime of Lewd or Lascivious Molestation by a person 18 years of age or older on a child under 12 years of age is classified as a Life Felony and is assigned a Level 9 offense severity ranking under Florida's Criminal Punishment Code.

If convicted of Lewd or Lascivious Molestation by a person 18 or older on a child under 12, a judge is required to impose a mandatory minimum sentence of twenty-five (25) years in prison followed by sex offender probation or community control for the remainder of the person's natural life.

In addition, a judge can impose any combination of the following penalties:

  • Up to life in prison.
  • Up to $10,000 in fines.

Lewd or Lascivious Molestation by person 18 or older on a child older than 12, but younger than 16

The crime of Lewd or Lascivious Molestation by a person 18 years of age or older on a child older than 12 years of age, but younger than 16, is classified as a Second Degree Felony and is assigned a Level 7 offense severity ranking under Florida's Criminal Punishment Code.


If convicted of Lewd or Lascivious Molestation by a person 18 years of age or older on a child older than 12 years of age, but younger than 16, a judge is required to impose a minimum prison sentence of 51 months in prison and can also impose any combination of the following penalties:

  • Up to fifteen (15) Years in prison.
  • Up to fifteen (15) Years of probation.
  • Up to $10,000 in fines.

Lewd or Lascivious Molestation by person younger than 18 on a child younger than 12

The crime of Lewd or Lascivious Molestation by a person younger than 18 years of age on a child younger than 12 years of age, is classified as a Second Degree Felony and is assigned a Level 7 offense severity ranking under Florida's Criminal Punishment Code.


If convicted of Lewd or Lascivious Molestation by a person younger than 18 on a child younger than 12, a judge is required to impose a minimum prison sentence of 51 months in prison and can also impose any combination of the following penalties:

  • Up to fifteen (15) Years in prison.
  • Up to fifteen (15) Years of probation.
  • Up to $10,000 in fines.

Lewd or Lascivious Molestation by person younger than 18 on a child older than 12, but younger than 16

The crime of Lewd or Lascivious Molestation by a person younger than 18 years of age on a child older than 12 years of age, but younger than 16, is classified as a Third Degree Felony and is assigned a Level 6 offense severity ranking under Florida's Criminal Punishment Code.


If convicted of Lewd or Lascivious Molestation by a person younger than 18 on a child younger than 12, a judge is required to impose a minimum prison sentence of 36 months in prison and can also impose any combination of the following penalties:

  • Up to five (5) Years in prison.
  • Up to five (5) Years of probation.
  • Up to $5,000 in fines.

Civil Consequences

A person convicted of Lewd and Lascivious Molestation 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, 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.

Defenses to Lewd or Lascivious Molestation

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 Molestation 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 Battery

Because Lewd or Lascivious Battery is a strict liability crime, the following defenses are statutorily prohibited from being raised at trial:

  1. Consent,
  2. Ignorance of the child's age, and
  3. Proximity in Age.

Consent by the child to the alleged sexual act 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 Battery - meaning it cannot be presented at trial.

This means a defendant cannot admit to the Lewd or Lascivious Molestation, but argue that the crime of Lewd or Lascivious Molestation 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 sexual touching.

With that said, if it is being argued that the allegation of Lewd or Lascivious Battery 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 Battery 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 sexually interact with each other, either child or both could be prosecuted for Lewd or Lascivious Molestation.

Instead, the 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 Molestation in Central Florida or the Greater Orlando metropolitan area, contact 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.