Lewd or Lascivious Molestation in Florida
Lewd or Lascivious Molestation criminalizes consensual sexual interaction with a child younger than 16.
Lewd or Lascivious Molestation criminalizes consensual sexual interaction with a child younger than 16 that falls short of lewd or lascivious battery.
Definition of Lewd or Lascivious Molestation
Under Florida Statute 800.04(5), the crime of Lewd or Lascivious Molestation is committed 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 are determined by whether the offender was an adult or a minor and also by whether the child-victim was under the age of 12.
Lewd or Lascivious Molestation by an Adult on a child under 12
The crime of Lewd or Lascivious Molestation by a person 18 or older on a child under 12 is a Life Felony punishable by a minimum 25 year prison sentence followed by lifetime sex offender probation and a $10,000 fine.
Under Florida’s Criminal Punishment Code, Lewd or Lascivious Molestation by a person 18 or older on a child under 12 is assigned a Level 9 offense severity ranking and a judge is required to sentence a person convicted of Lewd or Lascivious Molestation by a person 18 or older on a child under 12 to a mandatory-minimum sentence of 25 years in prison followed by sex offender probation or community control for the remainder of the person’s natural life.
Lewd or Lascivious Molestation by an Adult on a child 12 or older, but younger than 16
The crime of Lewd or Lascivious Molestation by a person 18 or older on a child 12 or older, but younger than 16 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 Molestation by a person 18 or older on a child 12 or older, but younger than 16, is assigned a Level 7 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 Molestation by a person 18 or older on a child 12 or older, but younger than 16, to a minimum sentence of 51 months in prison followed by at least two years of sex offender probation. [1]
Lewd or Lascivious Molestation by a Minor on a child younger than 12
The crime of Lewd or Lascivious Molestation by a person younger than 18 on a child younger than 12 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 Molestation by a person younger than 18 on a child younger than 12 is assigned a Level 7 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 Molestation by a person younger than 18 on a child younger than 12 to a minimum sentence of 51 months in prison followed by at least two years of sex offender probation. [1]
Lewd or Lascivious Molestation by a Minor on a child older than 12, but younger than 16
The crime of Lewd or Lascivious Molestation by a person younger than 18 on a child older than 12, but younger than 16 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 Molestation by a person younger than 18 on a child older than 12, but younger than 16 is assigned a Level 6 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 Molestation by a person younger than 18 on a child older than 12, but younger than 16 to a minimum sentence of 36 months in prison followed by at least two years of sex offender probation. [1]
Gain Time Ineligible
A person sentenced to prison for Lewd and Lascivious Molestation is ineligible for gain time and must serve the entirety of their prison sentence, day-for-day. [2]
Sex Offender Designation
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, a person can only petition for exclusion from the registration requirement if the facts of the 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:
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
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:
Consent
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 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.