Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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. 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. 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. This 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 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 molestation conduct or battery is that somebody can be, for example, masturbating in front of a minor and the prosecutor would then have the choice 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.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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