Lewd or lascivious molestation is a crime that involves sexual activity with a minor under the age of 16. Florida does not have a criminal charge named “rape” but has “sexual battery” instead.

Likewise, Florida does not have a crime named “child molestation” and has Florida Statute 800.04(5). Generally, 800.04 is a sex offense statute different from 794, the Florida Sexual Battery statute. The key difference centers on the law of legal consent to engage in sexual relations.

This is defined by Florida statute section 800.04 (5)(a) and (b). The definition is complex and long:

1. Lewd or Lascivious molestation involves intentional touching of specific areas of the human body. These areas include the breasts, genitals, genital area, or buttocks, of a person less than 16 years of age. Touching of the prohibited areas includes the clothing over them. This is defined by Florida statute section 800.04 (5)(a) and (b).
2. A person can be charged for use of force or enticement where “a person under 16 years of age to so touch the perpetrator.” Being unlawfully touched is part of the lewd or lascivious molestation meaning.
3. The ages of the people involved matter.
4. Prior criminal history also matters.
5. The offense may be reclassified by the prosecutor. The prosecutor may file the charge as a life felony, first degree, second degree or third degree felony. The police may arrest you for one charge but the prosecutor may increase or reduce the charges.

Understanding the Meaning of Lewd or Lascivious Behavior

The phrase “lewd or lascivious behavior” actually refers to Florida statute sections 800.04(6) and (7). This phrase is not technically correct but commonly used.

“Behavior” refers to both “conduct” under subsection (6) and “Exhibition” under subsection (7). Either may be classified as a third or second degree felony.

Are Lewd or Lascivious Molestation, Behavior, and Battery Different Charges?

The terms sexual “molestation,” “behavior,” and “battery” are often used carelessly and this area of law is complicated. Child molestation is simply child molestation to most lay people. Each of these criminal charges appear to overlap and duplicate each other. Each has a distinct meaning within the context of the charge.

1. Molestation is broadly defined. Sexual child molestation with someone under sixteen (16) years of age qualifies under Florida Statute Section 800.04 (5). This charge has the greatest sentencing variety. Sentences range from a five (5) year maximum to a life felony.
2. “Behavior” refers to exhibition and/or conduct as specified earlier.
3. Battery refers to any type of physical contact, including sexual contact.

The law resembles an algebra problem where actual numbers are needed yet there are just letters for the equation. The age of the parties, prior criminal record, and other criminal charges may determine one charge versus another.

One key part is missing from this explanation. This would be Florida statute section 921.0022, the point assessment section of offense severity.

The point system is the main reason this area of law causes confusion. Points are assessed differently for molestation, behavior and battery. Lewd or Lascivious Molestation sentences tend to be harsher than those for behavior or battery.

What Are the Statutory Penalties for Lewd or Lascivious Molestation, Behavior or Battery?

The penalties for lewd or lascivious molestation, behavior or battery can vary. The single most important factor is the Florida Punishment Code in section 921. Points are assessed for different things on a scoresheet that the court must use.

Most Lewd or Lascivious charges are filed by the prosecutor as a second-degree felony. This can result in up to 15 years in prison, sexual offender designation and a fine of up to $10,000.

If the victim is under the age of 12, the charge can be elevated to a first-degree felony as a battery. This can become a life felony if child molestation is filed under 800.04(5). This means up to 30 years in prison and a fine of up to $10,000 as a battery. A Life Felony defines itself by the name.

All of these charges routinely involve sexual offender and predator designations.

What Should You Do If You Are Facing This Charge?

The single most important thing: seek legal representation immediately. A skilled criminal defense attorney can help you.  A strong defense is needed to protect your rights and fight for the best possible outcome.

How Can You Defend Against These Charges?

There are several potential defenses to charges of lewd or lascivious molestation, behavior or battery.

Defenses come in two forms. The first is an issue of law. Judges can rule on issues of law during the pretrial phase of a case. The second type of defense is an issue of relevant legal fact which must be decided by a jury unless the judge also happens to be the trier of fact. The most common fact issue for a jury is whether someone is lying. Defenses may also include:

• Lack of intent: In order to be convicted, the prosecution must prove intent to commit the act. If there is no intent to engage in sexual activity with a minor, the charge may be reduced or dismissed. An accidental touching is not a criminal offense.
• Consent: This type of legal defense is specifically prohibited. The law provides that someone under sixteen (16) cannot legally consent.
• False Belief as to Age: This is not a legally valid defense. A pseudo-victim can lie about their age and suffer no consequence.
• False accusations: Unfortunately, false accusations of sexual offenses are not uncommon. A skilled attorney knows how to gather evidence. Review evidence, interview and take testimony from witnesses, raise doubt or even prove the allegations are false.
• Age of consent: In some cases, the alleged victim may have been close to the age of consent. If it can be shown that the victim was of legal age to consent to sexual activity, the charge may be reduced or dismissed. There have been cases across Florida where people were prosecuted but the purported victim’s age was over 16.

The Best Defense: Prevent False Accusations of Lewd or Lascivious Molestation

As a parent, grandparent, step parent or guardian, there are steps you can take to help prevent false accusations. These may include:

• Never be alone with children under the age of 16. Children with a habit or reputation for lying are extremely dangerous. Teachers understand this in their DNA. This is especially true in blended families.
• Avoid relationships with people who were victims or purported victims of sexual offenses. In an era where “believe victims” is the mantra, a false accusation is taken as real. People who are acquitted frequently report being shunned as someone “who go away with it.”
• Document text messages with young people and family members. Keep detailed written or photographic records of anything that might be useful later. Document everything that may, might, possibly be evidence.
• Pay attention to familial relationships. Marital unhappiness can directly lead to a false accusation. Depression and false allegations of sexual offenses are more common than most want to believe.
• If the Department of Children and Family Services wants to talk to you, your answer is “I would like to speak with an attorney”.
• The Department personnel may threaten or bully you, but that should always be your response. DCF usually will have a uniformed or plain clothes law enforcement officer when conducting in home investigations.
• This cop usually will not ask any questions as a tactical matter, but listens to see if a case can be made against you. By remaining silent, the cop does not have to read you your rights. Everything you say in their presence will be weaponized against you.
• Some take this so seriously that they refuse to date people with children. Prior to the cultural dictate to “believe victims”, this was extremely rare.

Conclusion

Lewd or lascivious molestation, behavior or battery is serious. All sex offenses are serious. These criminal charges have severe consequences. If you or someone you know is facing this charge, it is important to seek legal representation and understand your rights.

Many of the things in this article are not popular. They are not designed to be popular. They are designed to help you avoid stepping on a legal land mine that can blow your life up.

This is not a random commenter’s theory. This is the product of decades of experience in courtrooms across Florida. We are happy to put this experience to work for you but would rather not. A person who is Not Arrested is far ahead of the person who gets a not guilty verdict.

If you’re facing lewd or lascivious behavior charges in Florida, count on the skilled, experienced, and board-certified legal team at Cobb Law Firm to provide expert defense strategies tailored to your unique situation. Contact us online or give us a call at (850) 738-6153 today to schedule a consultation.

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