Section 800.04 of Florida Statutes defines the crime(s) of lewd and lascivious behaviors and divides them into four categories.
- Lewd and Lascivious Battery
- Lewd and Lascivious Molestation
- Lewd and Lascivious Conduct
- Lewd and Lascivious Exhibition
Section 800.04 Defines certain legal terms as follows:
(a) “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.
(b) “Consent” means intelligent, knowing, and voluntary consent, and does not include submission by coercion.
(c) “Coercion” means the use of exploitation, bribes, threats of force, or intimidation to gain cooperation or compliance.
(d) “Victim” means a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer.
There are certain facts and arguments which are prohibited from being used as a defense to the charges. The “victim’s” lack of chastity and consent are inadmissible as is the lack of knowledge regarding the “victim’s” age.
Lewd and Lascivious Battery
Under Florida law, a person commits lewd or lascivious battery, a Second Degree Felony punishable by up to 15 years in prison, by:
- Having sex with someone 12 to 15 years of age. Or,
- Encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.
Lewd and Lascivious Molestation
Florida Law creates a separate crime when a person touches someone 15 years of age or younger in a sexual way on certain areas of the body or on the clothing covering those parts of the body. As anyone can imagine, this area of the law is subject to a great deal of interpretation.
Florida Statute s. 800.04 defines the crime of Lewd and Lascivious Molestation as follows:
A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation
If the accused is over 18 years of age and the accuser is less than 12, they can go to prison for the rest of their lives. If the accused is under 18 and the victim is under 12, or if the accused is over 18 but the victim is between the ages of 12 and 15, they are looking at 15 years in prison.
An accused under 18 with a victim who is 12-15 years of age is looking at 5 years in prison.
If my 12-year-old’s coach pats him on the butt for making a good play on the football field, is that against the law?
It depends. If it is done in a sexual way, then yes, that is against the law. But, who decides whether it was inappropriate or not? The police?
Sex Crime Investigators are often no more than a complaint department for adolescents and their parents. In today’s society, where people are just looking to get offended, perfectly innocent behavior can be re-classified as inappropriate depending on the sensitivity level of the person complaining.
At Mike G Law, we investigate not just the act which is allegedly inappropriate, but we look into the motives behind the claim. We have often been able to avoid criminal prosecution for our clients when we demonstrate that there were improper motives at play. For example, the jilted girlfriend or the bipolar child who will use the Criminal Justice System to manipulate their parents and get what they want.
One of the most frightening things about the prosecution of sex crimes in Florida is the power that the law enforcement agencies have and how little power a judge has to stop overly aggressive prosecutions and have any significant input on sentencing.
If a 15-year-old boy grabs a girl’s breast or pats her on the butt, could he go to prison for 5 years?
Yes. And, not only that, it does not matter legally if the girl consented or even if she asked him to do it. It is still a crime.
At Mike G Law, I have had a mom call me on a Sunday in tears because a Sex Crime Detective told her that her 13-year-old son was going to get charged with 10 separate sex crimes because he touched his 13-year-old girlfriend’s boob and it did not matter that she wanted him to do it. We immediately contacted all witnesses and memorialized their statements and succeeded in convincing the state not to file any charges, avoiding an arrest entirely.
THE FACT THAT THE ACCUSER IS A MINOR WHO HAS BEEN SEXUALLY ACTIVE IS NOT ONLY NOT A DEFENSE BUT IT IS INADMISSIBLE IN TRIAL FOR ANY REASON
I have had clients who are in their twenties who had sex with a 15-year-old who had far, far more sexual experience than my client, yet they were charged with a sex crime. I have been able to speak to prosecutors and make them listen to the injustice of charging someone with a sex crime when the minor consented and had been sexually active. I have successfully defended clients who were charged after they had sex with an underage prostitute who tried to financially exploit my client with a threat of criminal prosecution.
Even if a minor lies about his or her age, has a fake ID, and has had others lie on his or her behalf saying he or she is 18 when he or she is not, this is not a defense. This is one of the provisions of Florida Law that make no sense whatsoever.
If my girlfriend is 15, and her parents are ok with me sleeping over, how can they charge me with a crime?
Because the law says they can; and not only that, you cannot introduce her and her parent’s consent to defend against the charges. What you can do is hire former sex crimes prosecutor Mike Gonzalez who understands how these charges impact your life and knows how to best deal with issues of mitigation in persuading the State to either drop or reduce charges so that you can avoid a criminal conviction and designation as a sexual predator or offender.
Lewd and Lascivious Conduct
This part of the statute criminalizes the touching of any part of a minor’s body which is not a sex organ if it’s done in a sexual manner. So if someone touches someone’s shoulder and the person touched interprets it as being offensive and sexual, a crime has been committed. As you can imagine, this puts a lot of power in the hands of often inexperienced and malicious children to ruin innocent people’s lives.
At Mike G Law, we have seen cases where individuals who touched a young girl in a certain way were charged with a sex crime while others the girl considered desirable not only avoided prosecution but were encouraged to continue by a child defined as a victim of a sex crime.
Florida Statute s. 800.04 defines the crime of lewd and lascivious conduct as follows:
A person who:
- Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or
- Solicits a person under 16 years of age to commit a lewd or lascivious act
commits lewd or lascivious conduct.
An adult who commits Lewd and Lascivious Conduct is looking at 15 years in prison while someone under 18 faces 5 years in the Florida Department of Corrections Prison System.
Lewd and Lascivious Exhibition
Although this section of s. 800.04 is a bit more explicit, it is still subject to a great deal of interpretation.
Florida Statute s. 800.04 states, in part, the following:
- Intentionally masturbates;
- Intentionally exposes the genitals in a lewd or lascivious manner; or
- Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity
in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.
What qualifies as masturbation under Florida Law?
There is a dictionary definition which has legal validity, and then there is a cop on a call from someone who thinks they saw something they considered to be masturbation. For example, at Mike G Law, we successfully represented a client who was simply adjusting themselves or scratching their crotch area when some helicopter mom freaked out and called the police “just to be on the safe side.” On countless occasions, we have successfully represented people who were attending a festival, could not wait in line for the porta potty, and just had to relieve themselves behind a tree charged with this sex crime. I have even seen people charged under Section 3 because they were dancing in a sexually suggestive manner.
Mike G Law knows how to get the job done.
At Mike G Law, we are not afraid of going to trial. In fact, we have been able to challenge the State’s case and have seen their resolve crumble when they see we are prepared to fight. The State Attorney’s Office very often relies on a bluff because they think a criminal defense lawyer or Defendant does not have the will to take a case to trial. When they deal with Mike G Law, they know that they are going to get a fight and that fear is not part of the equation.
Mike G Law has either won outright at trial or gotten charges reduced, dropped, or “No Filed” after investigation many times on very serious sex crimes like Capital Sexual Battery and Lewd and Lascivious Molestation. As a former sex crimes prosecutor, I know when and how to fight the state and the best way to make a case. The first step? Getting me on your side. Contact Mike G Law now to schedule a consultation.