Lewd or Lascivious Battery in Florida
Lewd or Lascivious Battery, more commonly known as statutory rape, criminalizes consensual sexual intercourse with a child older than 12, but younger than 16.
Under Florida Statute 800.04(4), the crime of Lewd or Lascivious Battery is committed when a person engages in sexual activity with a child older than 12, but younger than 16; or encourages, forces, or entices a child older than 12, but younger than 16, to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.
Strict Liability Crime
Lewd or Lascivious Battery is a strict liability crime, meaning ignorance of the child's age is not a defense.
The reason Lewd and Lascivious Battery is a strict liability crime is to counteract the commonly raised defenses that:
- The child's real age was unknown, thus making the sexual activity with the child unintentional; or
- The child consented to the sexual act, thus putting the responsibility to decline the sexual advance on the child.
Penalties for Lewd or Lascivious Battery
The crime of Lewd and Lascivious Battery is classified as a Second Degree Felony and is assigned a Level 8 offense severity ranking under Florida's Criminal Punishment Code.
If convicted of Lewd and Lascivious Battery, a judge is required to impose a minimum prison sentence of 34½ 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 sex offender probation.
- Up to $10,000 in fines.
A person convicted of Lewd and Lascivious Battery would not only be placed on sex offender probation, but would also be designated 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.
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 Battery
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, evidence of false allegations remains the most effective defense to raise when charged with Lewd and Lascivious Battery.
Typical reasons for false allegations include:
- Manipulation of children by an angry parent,
- Mental illness of the accuser, or
- Mentally ill parents influencing a child.
As a result, it is critically important to investigate the accuser and expose any motive that may exist for making a false accusation of Lewd or Lascivious Battery.
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:
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 Battery, but argue that the crime of Lewd or Lascivious Battery 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 Battery.
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 were to have sex with a 14 year-old, 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 sentence under Florida's sentencing guidelines.
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