Florida has a completely different statute section that makes certain sexual activity unlawful. Some consider it to be similar to chapter 794, but it is very different.

Specifically, 800.04 addresses four different types of lewd or lascivious behavior that is illegal under the law. The first is lewd or lascivious battery. The penalty range is 15 years to life in prison depending upon certain aggravating factors. Most are not aware of this fact: the danger of this particular statute is that it's not limited to just sexual activity; someone can be convicted of the sex offense for encouraging or enticing sexual activity with someone who is between the ages of 12 and 16. Due to the age of the complaining witness, there is no consent defense to an allegation of lewd or lascivious battery.

There is also an affirmative duty on a defendant to make sure that someone is of legal age. This is similar to being required to prove innocence. It's very rare in criminal law where the defendant has an affirmative duty to prove innocence. However, when it comes to lewd or lascivious battery in Florida, each person (male or female) has an affirmative duty under the law to make sure that the individual in question is of legal age prior to engaging in sexual conduct.

Now, in another section of this series of questions, I address the question of how old is too old for sexual purposes. For example, a 16-year old can legally have consensual sex with a 17-year old, an 18-year old, or a 19-year old, but they cannot have consensual sex with anyone who is 24 years of age or older. Whether these ages are what the law should be is a political decision beyond the scope of this discussion.

There is also lewd or lascivious molestation. The problem with lewd or lascivious molestation is that an intentional touching in a lewd or lascivious manner can be of the breast, the genital area or even the clothing covering the breast and genital area if that person is under the age of 16.

There is also the language of unlawful enticing a person who is under the age of 16 to touch someone else.

Lewd or lascivious molestation has a penalty range from five years for juveniles to life in prison, depending upon the whole laundry list of aggravating factors. There is also a lesser included offense of molestation known as lewd or lascivious conduct. The penalties range from five to 15 years and the elements are substantially the same as the molestation statute. Finally, we have a five to 15-year penalty range for lewd or lascivious exhibition.

The major difference between lewd or lascivious exhibition and lewd or lascivious is that prosecutors can file the charges several ways in most cases. An allegation of public masturbating gives the prosecutor choices of how to charge the crime alleged.

It would be possible to charge that person under the exhibition section of 800.04 or the basic lewd sunbathing statute 800.03, which is a misdemeanor. Now, 800.03 is technically a sexual offense that specifically involves indecent exposure. This is why it's often referred to as an illegal sunbathing statute. Many people do not realize the level of severity of a situation in which they happen to be nude sunbathing when a family with children under the ages of 12 walk by. In cases like that, the prosecutor will be looking not only at indecent exposure under 800.03, but also at lewd or lascivious exhibition under 800.04.

A final thought here: sex offense crimes are being manufactured by the government at an alarming rate. People are getting arrested for what is essentially Internet trolling - “that's not a real 13 year old, so I'm going to mess with that troll.” Don't mess with the troll. Don't even joke about sex with minors online. The risks are very real.

For more information on Lewd And Lascivious Molestation or Sexual Battery, a free initial consultation is your next best step. Get the information and legal answers you need by contacting us Here.