Lewd or Lascivious Molestation Defense Attorney in Naples, Florida

Lewd or lascivious molestation is a criminal act that involves sexual interactions that are consensual with a minor who is younger than the age of sixteen. Under Florida Statutes Section 800.04(5), the offense of lewd and lascivious molestation occurs if “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.”

The terms “lewd or lascivious” have the same meaning, which is, lustful, wicked, licentious, unchaste, or sensual intentions held by the individual who took such actions. Strict liability applies to the crime of lewd and lascivious molestation, which means that two of the frequently raised defenses will not be effective. Defendants cannot excuse their conduct by claiming that the minor’s age was not known, and therefore, the sexual interaction with the minor was not intentional, nor can they claim that the minor was a willing participant in the sexual act, making the child the one who had the responsibility of declining the sexual advance.

If you are facing lewd or lascivious molestation charges in Naples, Florida, it is imperative that you contact a skilled Naples criminal defense attorney at Musca Law. When you meet with one of our seasoned attorneys, you will be advised of your legal rights and options as well as the defenses that may apply in your case. Contact Musca Law at any time, day or night, at (888) 484-5057.

Lewd or Lascivious Molestation: Legal Consequences

The consequences for the offense of lewd or lascivious molestation depend upon whether the convicted offender was a minor or an adult as well as whether the victim was less than twelve years of twelve.

When a person aged eighteen or older commits the crime of lewd or lascivious molestation with a minor under the age of twelve, he or she will face a life felony that is associated with a jail term of at least 25 years, lifetime probation as a sex offender, and a fine of $10,000. Pursuant to Florida’s Criminal Punishment Code, criminal lewd or lascivious molestation committed by an individual eighteen-years-old or older on a minor under the age of twelve constitutes a Level 9 offense, which comes with a mandatory penalty that requires the presiding judge to sentence offender to a minimum of 25 years imprisonment. It also requires the offender to be placed under community control or on sex offender probation for the rest of his or her life.

If a person eighteen of older commits lewd or lascivious molestation on a minor aged twelve or older, but under sixteen years of age, the offender will be guilty of a felony in the second-degree, which carries with it a prison term of at most fifteen years, sex offender probation for fifteen years, in addition to a fine of $10,000. Under Florida’s Criminal Punishment Code, lewd or lascivious molestation by an individual aged eighteen or more on a minor aged twelve or older, but under sixteen years of age, constitutes a Level 7 offense. A Level 7 offense, in the absence of previous criminal convictions, the judge must sentence the offender to at least 51 months of imprisonment, followed by a minimum of two years of sex offender probation.

The offense of lewd or lascivious molestation by an individual less than eighteen years old on a minor younger than age twelve constitutes a second-degree felony by a maximum of fifteen years in jail, fifteen years of sex offender probation, and a monetary fine of $10,000. Pursuant to Florida statutory law, lewd or lascivious molestation carried out by an individual who is less than eighteen years old on a child who is under the age of twelve is a Level 7 offense. Absent a criminal history, a judge must sentence the offender to a minimum of 51 months in jail and at least two years of sex offender probation.

Lewd or lascivious molestation committed by a minor on a victim who is older than twelve but under sixteen years old qualifies as a third-degree felony, which is associated with a five year prison term, sex offender probation lasting five years, and a fine of $5,000. Florida’s Criminal Punishment Code further states that lewd or lascivious molestation by an individual who is less than age eighteen on a minor who is younger than sixteen constitutes a Level 6 offense, and, absent a criminal history, a judge must sentence the offender to jail for 36 months and a minimum sex offender probation term of two years.

Designation as a Sex Offender

An individual who is convicted of lewd or lascivious molestation not only faces probation as sex offender, but also will be deemed a sex offender for the purposes of registration requirements. These individuals will be placed on the Florida and national sex offender registries, and must comply with the applicable laws governing same for the rest of his or her life.

Ineligibility for Gain Time

An individual who is convicted of lewd or lascivious molestation must serve their entire prison sentence. These convicts cannot “gain time” or decrease their prison term as may be possible with other types of offenses.

Exceptions for “Romeo and Juliet” Cases

In the State of Florida, it is a crime for a person aged eighteen or older to engage in sexual acts with a minor under the age of eighteen, even if the sex was consensual. The reason behind this is that minors in Florida are not deemed able to consent to sex pursuant to the applicable law. Those who break the law engage in what is known as statutory rape. Notwithstanding, Florida has what is called a “Romeo & Juliet” law which allows for the offender to avoid the requirement to register as a sex offender. The Romeo & Juliet law applies if the following elements are satisfied:

• The victim is between the ages of fourteen and seventeen;
• The victim was not over four years younger than the offender;
• The victim must have willingly participated in the sexual conduct; and
• The offender has not committed a previous sex crime.

Mitigating Circumstances

In a case where a person was convicted of a second or third-degree felony for engaging in lewd or lascivious molestation, the court has the option of deviating from the minimum required prison sentence if the defense can establish that:

• The child-victim was the one who initiated the conduct, or was a participant, provoker or aggressor of the molestation;
• The offender needs mental disorder treatment and is willing to seek it; or
• The offender is to face a prison sentence prior to his or her 21^st birthday.

Lewd or Lascivious Molestation Defenses in Collier County

Pretrial and trial defenses can be brought forth in any criminal matter, but two additional and primary defenses that can be raised to the offense of lewd or lascivious molestation are as follows: false allegations, or the absence of lewd intent.

The main reasons for false allegations include:

• Manipulation of a child by an angered parent;
• Jealousy;
• Mentally ill parent(s) influencing a minor; or
• The accuser’s own mental illness.

The basis of the crime of lewd or lascivious molestation is the intent. The state must prove lewd or lascivious intent. A person charged with lewd or lascivious molestation can claim that he or she did not have the requisite intent to warrant a conviction.

There are certain defenses that do not apply in lewd or lascivious criminal proceedings, as lewd or lascivious molestation is subject to strict liability. These are as follows: consent, lack of knowledge regarding a minor’s age, and closeness in age.

As for consent, this is not a viable defense, meaning, that it cannot be asserted at trial. Regarding ignorance of a child’s age, this is also a statutorily prohibited defense which also cannot be raised at trial. However, there is an argument that the lewd and lascivious molestation was excusable given the fact that the minor was not honest regarding his or her age, or there was a legitimate and reasonable belief that the minor had reached the age of consent for sexual touching.

Accordingly, if it is asserted that the claim of lewd or lascivious molestation is untrue, an accused may seek the testimony of his or her accuser in an attempt for him or her to admit that he or she lied about their age. This is not a defense, but it may impact the credibility of the accuser.

With regard to closeness in age, a recurring issue in lewd and lascivious molestation matters is when the defendant is sixteen years old or younger. For instance, if a thirteen-year-old and fourteen-year-old were to engage in sexual acts with one another, either minor can be charged with lewd and lascivious molestation. While this is not a defense to this offense, this set of facts could create a mitigating effect allowing for the court to modify the state’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” mean the exact same thing and are defined as a wicked, unchaste, lustful, licentious or sensual intent on the part of the person engaged in an act.

What is the law governing lewd or lascivious molestation?

Under Florida Statutes Section 800.04(5), it is illegal to engage in sexual contact with a minor. The contact is less than sexual activity but is still sexual in nature. The law provides that it is not legal to:

• Intentionally touch a person less than sixteen years old on the breasts, buttocks, or genitals or on the clothing covering these body parts; or
• To influence or force a minor under the age of sixteen to touch the offender.

Essentially, it is illegal for a person under the age of sixteen to be touched in his or her private areas in a sexual way, or to entice or force a minor to touch the offender in a sexual manner for the purpose of sexual gratification.

What if the touching was limited to the buttocks of an individual who is clothed?

The State of Florida requires the prosecution to prove that the accused had a lewd or lascivious intent in touching a minor on the buttocks. However, it is best to avoid touching any child in any area where it can be construed as sexual in nature, even if clothed, such as the buttocks, breasts, genitals or one’s genital area.

What if the minor consented to the sexual contact or is sexually active?

The victim’s lack of chastity or his or her consent are not defenses to lewd or lascivious molestation. So even if a minor consented to the sexual acts and is known to be sexually promiscuous, the accused can face a conviction for lewd or lascivious molestation.

What if the victim asserts that she was over eighteen years or older?

Even though the victim told you that he or she was eighteen years old or older, you will still face a conviction if the victim is actually under the age of eighteen. Your lack of knowledge of the victim’s age is not a viable defense to lewd or lascivious molestation. Moreover, the victim’s assertion about his or her age is also not a defense, as well as your belief that he or she was eighteen years old or older.

Does it matter that both the victim and the accused were minors?

No, it is of no consequence that both the accused and the victim are under the age of eighteen. Essentially, charges can still be brought and no defense in this regard can be raised.

What is the specific prison sentence for lewd or lascivious molestation?

It depends upon the age of both the offender and the victim.

If the offender is eighteen years old or older, and the victim is under the age of twelve, a conviction for this level of lewd or lascivious molestation constitutes a life felony. A life felony carries with it a minimum sentence of twenty five years in prison.

If the offender is under the age of eighteen and the victim is under the age of twelve, this constitutes a second-degree felony, which carries with it the potential for up to fifteen years in prison.

If the offender is eighteen years old or more, and the victim is twelve years old or older but less than sixteen years of age, it is a second-degree felony, if convicted, which carries with it a sentence of up to fifteen years in prison.

If the offender is less than eighteen years or age and the victim is over twelve years of age by less than sixteen years of age, it is a third-degree felony, which carries with it a prison term of up to five years.

What defenses apply in a lewd or lascivious molestation case?

The most common defense to lewd or lascivious molestation is that the allegations are false. Many times, allegations are raised several years after the alleged acts took place. Many claims allege sexual conduct when the victim was a minor and 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 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.