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 need 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
Under Florida Statute 800.04(6), the crime of Lewd or Lascivious Conduct is committed when a person:
- Intentionally touches a child under 16 years of age in a lewd or lascivious manner; or
- Solicits a child 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.
Strict Liability Crime
Importantly, Lewd or Lascivious Conduct is a strict liability crime.
The reason Lewd and Lascivious Conduct 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 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.
Lewd or Lascivious Conduct by Person 18 or older
The crime of Lewd and Lascivious Conduct by a person 18 years of age or older is classified as a Second Degree Felony and is assigned a Level 6 offense severity ranking under Florida's Criminal Punishment Code.
If convicted of Lewd or Lascivious Conduct, a judge can 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.
Lewd or Lascivious Conduct by Person younger than 18
The crime of Lewd and Lascivious Conduct by a person younger than 18 years of age is classified as a Third Degree Felony and is assigned a Level 5 offense severity ranking under Florida's Criminal Punishment Code.
If convicted of Lewd or Lascivious Conduct by a Person younger than 18, a judge is required to impose a minimum prison sentence of 24½ 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 sex offender probation.
- Up to $5,000 in fines.
A person convicted of Lewd and Lascivious Conduct 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.
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 Conduct
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 Conduct.
Lack of Lewd Intent
The core element of the crime of Lewd or Lascivious Conduct is a lewd or lascivious intent. As a result, it is a defense to the charge of Lewd or Lascivious Conduct if it can be shown there was no lewd or lascivious intent.
Prohibited Defenses to Lewd or Lascivious Conduct
Because Lewd or Lascivious Conduct 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 Conduct - meaning it cannot be presented at trial.
This means a defendant cannot admit to the Lewd or Lascivious Conduct, but argue that the crime of Lewd or Lascivious Conduct 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 Conduct.
With that said, if it is being argued that the allegation of Lewd or Lascivious Conduct 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 Conduct 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 from Florida's sentencing guidelines.
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