Lewd or Lascivious Battery
Lewd or Lascivious Battery
Lewd or Lascivious Battery is a specific sex offense that relates to sexual contact with a minor who is under 16 years of age.
Lewd or Lascivious Battery is defined in Florida Statute Section 800.04(4).
There are two types of Lewd or Lascivious Battery:
Lewd or Lascivious Battery (Engaging in Sexual Activity) and
Lewd or Lascivious Battery (Encouraging, Forcing or Enticing).
Lewd or Lascivious Battery (Engaging in Sexual Activity) -
Florida Statute Section 800.04(4)(a)
To prove Lewd or Lascivious Battery (Engaging in Sexual Activity), the State must prove:
- The victim was 12 years old or older, but less than 16, and
- you either:
- committed an act upon or with the victim in which your sexual organ penetrated or had union with the victim's anus, vagina or mouth, or the victim's sexual organ penetrated or had union with your anus, vagina, or mouth, or
- committed an act upon the victim in which the anus or vagina of the victim was penetrated by an object.
Lewd or Lascivious Battery (Encouraging, Forcing or Enticing) -
Florida Statute Section 800.04(b)
To prove Lewd or Lascivious Battery (Encouraging, Forcing, or Enticing, the State must prove:
- The victim was under 16 years of age, and
- you encouraged, forced, or enticed, the victim to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any act involving sexual activity.
"Union" means contact.
"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.
It does not include an act done for a bona fide medical purpose.
"Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.
"Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
Neither the listed victim's consent or lack of chastity are defenses to Lewd or Lascivious Battery. So even if the victim had been sexually promiscuous and fully consented to the sexual contact, you could not raise this as a defense and would be guilty if the State could prove the elements listed above.
Even if the listed victim told you that he or she was 18 years old or older and consented to the sexual contact, you would be guilty of lewd or lascivious battery, if the victim was under 16. Your lack of knowledge of the age of the victim is not a defense. The victim's misrepresentation of his or her age is not a defense. And your true belief that the victim was 16 years old or older is not a defense to lewd or lascivious battery.
Lewd or Lascivious Battery is a Second Degree Felony, punishable by up to 15 years in prison. If you have a certain prior conviction, the maximum possible sentence may be increased up to 30 years in prison.
The most common defense to lewd or lascivious battery allegation is that the the allegations are untrue. Many of these allegations arise years and even decades after the alleged conduct. Many involve allegations of sexual contact when the listed victim was a child and years later claims sexual abuse through revelation of repressed memories. These repressed memories can be extremely unreliable. Many listed victims are manipulated by family members, law enforcement, and counselors once an initial allegation is made.
Some common things that we often do are to have our clients take a confidential polygraph examination that may help in negotiations with the State in an effort for them to drop the charges, obtain child sexual abuse experts to testify how false accusations of molestation occur, investigate how the initial allegation came to light and whether the child was instructed on what to say and how, and many other things that can help in convincing the State that the act did not occur, or in defending you in court.
Lewd or Lascivious Battery,
Call Shorstein, Lasnetski & Gihon Now!