Lewd or Lascivious Molestation Defense Lawyer in Orlando, Florida
It is a crime to engage in lewd or lascivious molestation of a minor, even when the victim consents to such acts. Pursuant to Florida Statutes Section 800.04(5), the offense of lewd and lascivious molestation occurs when “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 touch the perpetrator, commits lewd or lascivious molestation.”
The terms “lewd or lascivious” are synonymous, and are defined as wicked, lustful, licentious, unchaste or sensual intent on the part of the person who is engaged in the molestation. This offense is a strict liability crime, meaning, that certain defenses do not apply, including that the victim consented to the act.
If you have been charged with lewd or lascivious molestation charges in Orlando, Florida, it is critical that you contact a skilled Orlando criminal defense attorney at Musca Law. When you meet with one of our seasoned Orlando lewd or lascivious molestation defense lawyers, you will be advised of your legal rights and options as well the defenses that may be applicable in your case. Contact Musca Law now at (888) 484-5057 to learn more about how we can make a difference for you.
Punishment for Lewd or Lascivious Molestation in Orange County
The penalties associated with the crime of lewd or lascivious molestation are dependent upon the age of the victim as well as the age of the offender.
When an individual who is eighteen or older commits the offense of lewd or lascivious molestation with a child who is less than twelve years old, he or she will be charged with a life felony, which carries with it a prison term of at least 25 years, sex offender probation for the rest of the offender’s life, and a $10,000 monetary fine. Pursuant to Florida’s Criminal Punishment Code, lewd or lascivious molestation that is committed by an individual aged eighteen or older on a child who is under the age of twelve is a Level 9 offense. A Level 9 offense carries with it a mandatory minimum prison term of 25 years. The offender will also be subject to sex offender probation.
It is a second-degree felony if an individual who is eighteen or older engages in the lewd or lascivious molestation of a minor who is older than twelve but less than sixteen years old. A second-degree felony is associated with a prison term of up to fifteen years, fifteen years of sex offender probation, and a monetary fine of $10,000. Under Florida’s Criminal Punishment Code, lewd or lascivious molestation by an individual who is aged eighteen or older on a child who is aged twelve or older, but younger than sixteen, qualifies as a Level 7 offense. If a person is convicted of a Level 7 offense, then he or she will face at least 51 months in prison followed by a minimum of two years of sex offender probation.
The offense of lewd or lascivious molestation committed by a person who is under the age of eighteen on a child younger than twelve qualifies as a second-degree felony. A second-degree felony carries with it a prison term of up to fifteen years, fifteen years of sex offender probation, and a fine of $10,000. Under Florida’s Criminal Punishment Code, lewd or lascivious molestation by a person who is under the age of eighteen on a child who is less than twelve constitutes a level 7 offense, which carries with it a prison term of at least 51 months in jail and a minimum of two years of sex offender probation.
Lewd or lascivious molestation by a child on a person who is older than twelve but younger than sixteen constitutes a third-degree felony, which carries with it a prison term of up to five years, five years of sex offender probation, and a monetary fine of $5,000. Pursuant to Florida’s Criminal Punishment Code, lewd or lascivious molestation committed by an individual who is under the age of eighteen on a minor who is younger than sixteen constitutes a Level 6 offense, which is associated with a punishment of 36 months in prison and at least two years of sex offender probation.
Gain Time Ineligibility
A person who is convicted of lewd or lascivious molestation does not qualify for gain time. This means that the offender must serve the entirety of his or her prison sentence, day-for-day.
Designation as a Sex Offender
A person who faces a conviction for lewd or lascivious molestation not only will face prison time and probation, but he or she will also be labelled a sex offender. Accordingly, the offender will permanently be placed on the state and national sex offender registries.
Romeo and Juliet Exception
In Florida, it is a crime for an individual who is aged eighteen or older to engage in sexual acts with a child under the age of eighteen, even if the acts were consensual. The rationale behind this law is that minors are not deemed capable of consenting to sexual acts under the applicable law. Those who commit such an infraction will be found guilty of what is known as statutory rape. Notwithstanding, Florida has what is known as a “Romeo & Juliet” law that prevents an offender from being listed on the applicable sex offender registry. This law is applicable if all of the following are established:
The victim is between age fourteen and seventeen;
- The victim is less than four years younger than the offender;
- The victim must have intentionally participated in the sexual contact; and
- The offender has not been convicted of a previous sex-related offense.
In a situation where an individual faces a second or third-degree felony conviction, the court has the authority to deviate from the minimum required prison sentence if it can be shown that:
- The victim was the one who initiated the conduct, or was a participant, aggressor, or provoker of the molestation;
- The offender has a mental disorder who is willing to seek treatment; or
- The offender is to face a prison sentence as a youthful offender before his or her 21st birthday.
Lewd or Lascivious Molestation Defenses
In addition to pretrial and trial defenses that can be raised in any criminal case, the two primary defenses that can be asserted are as follows:
- False allegations. There are several reasons why people raise false allegations against another, which includes manipulation of a minor by a parent, jealousy, a parent who is mentally ill influenced the minor, or the accuser suffers from a mental illness.
- A lack of lewd intent. The core of the crime of lewd or lascivious molestation is that the offender must have a lewd or lascivious intent when sexually engaging with a minor. Specifically, a person who is accused of lewd or lascivious molestation can assert that he or she did not have the requisite intent to warrant a conviction of this crime.
There are certain defenses that people attempt to raise following a charge of lewd or lascivious molestation that do not apply, as this offense constitutes a strict liability charge. The defenses that people attempt to raise which do not apply are consent, ignorance of a minor’s true age, and proximity in age.
Regarding consent, this is not a plausible defense, which means that it cannot be raised at trial. In other words, just because someone consented to lewd or lascivious molestation does not mean that the offender will escape conviction. There is an argument, however, that can be asserted that the minor was not honest about his or her age, or that there was a true belief that the minor was of sufficient age to consent to lewd or lascivious molestation. Specifically, if it is claimed that the allegation of lewd or lascivious molestation is false, the accused can pursue the testimony of the accuser in order to seek an admission that he or she falsified her age. This is not a defense however, it does affect the credibility of the accuser.
Regarding proximity in age, a common issue in lewd and lascivious molestation cases is when the accused is also under the age of sixteen. For example, if two fourteen-year-olds engage in lewd or lascivious molestation with one another, either child can face criminal charges. While this is not a defense to lewd or lascivious molestation, it can be used as a mitigating factor to obtain a downward departure from Florida’s strict sentencing guidelines.
Frequently asked Questions About Lewd and Lascivious Molestation
When our clients meet with us, they often have a number of common questions. These are as follows:
What is the meaning of “lewd or lascivious?”
The words “lewd” and “lascivious” are synonymous, and are defined as a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person committing the lewd or lascivious molestation.
What is the law governing lewd or lascivious molestation?
Pursuant to Florida Statutes Section 800.04(5), it is unlawful for a person to engage in lewd or lascivious molestation with a child. Specifically, a person will be charged with lewd or lascivious molestation if he or she:
- Intentionally touches an individual who is under the age of sixteen on the breasts, genitals, or buttocks, whether clothed or not; or
- To influence or force a child who is less than sixteen to touch the offender.
Accordingly, it is unlawful for an individual under the age of sixteen to be touched in his or her private areas in a sexual manner, or to influence or force a minor to touch the offender in a sexual way for the purpose of sexual gratification.
What if the touching was limited to the buttocks of an individual who is clothed?
In Florida, the prosecution must prove that the accused intended to touch the buttocks of the victim with a lewd or lascivious intent. As such, it is best to avoid touching a child in any area where it could be deemed as sexual in nature, even if clothed, such as the breasts, genitals, buttocks or genital area.
What if the minor consented to the sexual contact or is sexually promiscuous?
The victim’s sexual activity or consent to lewd or lascivious molestation are not viable defenses in these types of criminal charges. Hence, even if a minor who is known to be sexually promiscuous consented to the act, the accused will still face a conviction for lewd or lascivious molestation.
What if the victim asserts that she was over eighteen years or older?
It does not matter whether the victim claimed that he or she was eighteen or older. A lack of knowledge of the victim’s true age does not constitute a plausible defense to lewd or lascivious molestation. Moreover, a belief that the victim was eighteen years old or older is also not a viable defense to lewd or lascivious molestation.
Does it matter that both the victim and the accused were minors?
No, it is of no consequence that both the victim and the accused are under the age of eighteen. In essence, charges can still be raised if both individuals are below the age of eighteen.
What is the specific prison sentence for lewd or lascivious molestation?
The applicable prison sentence for lewd or lascivious molestation depends upon the age of the victim and the accused. If the accused is eighteen years old or older, and the victim is below the age of twelve, a conviction for lewd or lascivious molestation will be a life felony. A life felony is associated with a minimum prison sentence of twenty five years.
If the accused is under the age of eighteen and the victim is under the age of twelve, this qualifies as a second-degree felony, which carries with it a prison term of up to fifteen years.
If the accused is eighteen years or more, and the victim is twelve years old or more, but less than sixteen years old, it constitutes a second-degree felony, which carries with it a prison term of up to fifteen years.
If the accused is under the age of eighteen and the victim is over the age of twelve by less than sixteen years old, the offense qualifies as a third-degree felony, which carries with it a potential prison term of up to five years.
What defenses apply in a lewd or lascivious molestation case?
The most common defense that is raised in a lewd or lascivious molestation case is that the allegations are false. Many times, a person raises a claim of lewd or lascivious molestation years after the alleged acts occurred. Many claims allege that there was sexual conduct when the victim was a minor and many years later, claims sexual abuse arising out of repressed memories, which are often unreliable. Many victims are influenced by law enforcement, family members, and counselors once the initial claim is made.
Another defense is that the offender did not intend to engage in lewd or lascivious molestation. In essence, if the intention of the offender was not lewd or lascivious, then the crime cannot be proven by the prosecution.
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If you have been charged with lascivious acts, don’t hesitate to call the Orlando defense attorneys at Musca Law for legal help and assistance. We know how to handle these charges and how to guide our clients through the circumstances they face. Let us help you defend your rights and fight for your future.