Defenses to Lewd or Lascivious Battery in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, lewd or lascivious battery (Fla. Stat. Section 800.04(4)) is a very serious felony that is distinct from sexual battery. Lewd and lascivious battery is “statutory rape,” criminalizing sexual activity between an adult defendant and a 12 to 15 year old minor that does not involve the sort of force or coercion associated with sexual battery charges (Fla. Stat. Section 794.011).

If someone is charged with lewd or lascivious battery, this can be an extremely stressful situation. However, there are various lawful defenses to an allegation of lewd or lascivious battery in Florida. This blog will explore those defenses.

For someone to be proven guilty of lewd or lascivious battery in Florida, they must commit one of the two described acts in the statute: sexual activity with a minor between the ages of 12 and 15 (Fla. Stat. 800.04(4)(a)(1)), or enticement of a minor between the ages of 12 and 15 to engage in sexual activity (Fla. Stat. 800.04(4)(a)(2)). 

For the first of these (physical battery) the State must prove the following beyond a reasonable doubt:

• The defendant engaged in sexual activity with the victim involving oral, anal or vaginal penetration or union 
• The victim was 12 or older, but younger than 16 years old
• The defendant was not legally married to the victim

Note: “Union” involves physical contact of the genitals or an object with a relevant portion of the victim’s anatomy (mouth, anus, vagina), whereas “penetration” requires actual entry into the relevant part. Seagrave v. State, 802 So. 2d 281 (Fla. 2001).

The second offense that counts as lewd or lascivious battery (battery by enticement) is proven if the State establishes the following beyond a reasonable doubt:

• The defendant encouraged, enticed, or forced the victim to engage in sexual activity involving oral, anal or vaginal union or penetration (even if no contact actually occurred)
• The victim was 12 or older, but younger than 16 years old
• The defendant was not legally married to the victim

“Entice” typically means “to attract artfully or adroitly or by arousing hope or desire: tempt.” It also means to lure, induce, tempt, incite, or persuade a person to do a thing. Lindemuth v. State, 247 So.3d 635 (Fla. 3d. DCA 2018)

Lewd or lascivious battery is considered a second-degree felony in Florida. It is punishable by up to 15 years in prison and a $10,000 fine.

The key differences between lewd and lascivious battery (Fla. Stat. Section 800.04(4)) and sexual battery (Fla. Stat. Section 794.011) are the following:

• Victim age: Sexual battery can be charged for a victim of any age, whereas lewd and lascivious battery is specifically charged when the victim is 12 to 15 years old.
• Physical force or coercion: Though minors cannot legally consent to sex, sexual battery is charged when the interaction is physically forced or coerced. If a minor is between 12 and 15 and was not physically forced into the act against their will, a lewd or lascivious battery charge is more likely than a sexual battery charge (still statutory rape, but may not qualify as sexual battery).
• Maximum penalty: Sexual battery carries a potential penalty of the death penalty (and a minimum of life in prison) if the defendant is an adult and the child victim is under the age of 12. Lewd or lascivious battery is a second-degree felony (punishable by 15 years in prison and a $10,000 fine).

If someone is charged with lewd or lascivious battery, there are many defenses that exist to this charge. One of these is that no sexual activity occurred. If there was never oral, anal or vaginal penetration or union (and no enticement prior to the contact), lewd or lascivious battery is not an appropriate charge. 

Another defense is that the victim is 16 or older. Depending on the case, there may be a dispute regarding the exact age of the alleged victim at the time of the offense. If the victim was 16 or older when a lewd or lascivious battery is said to have occurred, this charge is inapplicable, as it only covers sexual activity with minors between the ages of 12 and 15. 

An additional defense may be alibi or mistaken identity. Especially in cases where there may exist a motive to fabricate the allegations, an alibi defense may be relevant if the defendant was not where the alleged offense occurred at the time it occurred. Evidence that may be used to support an alibi defense may include:

• GPS data
• Surveillance footage
• Witness testimony

Another potential defense in a case involving an allegation of lewd or lascivious battery is a false allegation defense. This defense can be particularly effective in cases where the allegation may stem from other events in the child’s life (such as a custody battle, etc.) and no forensic evidence supports the allegation. This may indicate the alleged victim is lying, mistaken, or was coached. 

Often, a critical component of a lewd or lascivious conduct defense is challenging the admission of child hearsay. Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement.

Under Fla. Stat. Section 90.803(23), a child’s out of court statements discussing sexual abuse (including lewd or lascivious battery) are admissible in court under the following conditions:

• The statement is nontestimonial hearsay (a statement made for the primary purpose of responding to an ongoing emergency, such as an initial abuse disclosure to a parent or teacher)
• The child has an emotional, physical, mental or developmental age of 17 or below (required in cases alleging lewd or lascivious conduct)
• The statement is sufficiently reliable (not untrustworthy) 
• There is substantial likelihood that the child would experience substantial mental or emotional harm from testifying

Critically, if the child hearsay is considered testimonial in nature, a child’s out of court disclosures of abuse are inadmissible unless the child testifies and the defendant has the opportunity to cross-examine the alleged victim. Crawford v. Washington, 541 U.S. 36 (2004).

Examples of testimonial child hearsay include:

• Statements made by the alleged victim during a forensic (CPT) interview
• Statements made by the alleged victim to law enforcement officers/prosecutors
• Statements made by the alleged victim during a 911 call if the abuse (“ongoing emergency”) was over

In cases involving alleged lewd or lascivious battery, a successful challenge to the admission of a child’s hearsay statements alleging the abuse will result in the exclusion of those statements at trial. This means that under Crawford, the child must testify if their allegation is to be heard, and the defendant must have the opportunity to cross-examine them. This may change the direction of a case (depending on what cross-examination reveals).

Along with challenging child hearsay, a key aspect of the defense is often to challenge interview tactics of a forensic (CPT) interview if they spoke with the child. As forensic interviewers are trained to avoid suggesting details to the alleged victim regarding what allegedly happened, pointing out inappropriate tactics by a CPT interviewer may damage the credibility of the underlying accusation. 

Moreover, if the State seeks to introduce the CPT interview tape at trial in a lewd or lascivious case, a defense attorney can move to have this excluded.

This is because the CPT interview is considered testimonial hearsay, requiring the following conditions before it can be played:

• The child and forensic interviewer must both testify and the defendant must have the opportunity to cross-examine them
• The CPT must be played for the sole purpose of rebutting a defense allegation that the child developed a motive/intent to lie between the time of the CPT interview and their present testimony. (Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011))

A final defense may be no enticement (if charged with violating (800.04(4)(a)(2)). If no sexual activity occurred and the defendant did not entice, encourage or force the defendant to engage in an act constituting lewd or lascivious battery (even if they made an inappropriate remark), a lack of enticement defense may be relevant.

In addition to the many valid defenses to lewd or lascivious battery, there are also defenses that are not supported under Florida law (“non-defenses”). These include:

• Consent: Not a defense – if a minor is under the age of 16, they cannot legally consent. However, if the victim is over the age of 14 and the age of the defendant is less than 4 years (1,460 days) greater than the victim at the time of the offense, Florida’s Romeo and Juliet law allows the defendant to apply to avoid the sex offender registry (if convicted). 
• Victim initiated the act: It does not matter who initiated the act – lewd or lascivious battery is a strict liability offense (automatically criminal) if the elements are satisfied.
• Mistake of age: Not a defense under Florida law, even if the victim lied about or did not mention their age.
• In a relationship: Unless the defendant and alleged victim are legally married, the statute applies – relationships are no exception.
• Prior sexual history of the victim (generally inadmissible under 794.022(2), unless it is directly relevant to physical evidence in the case and necessary to establish that someone other than the defendant may be the source of that evidence, such as semen)

In sum, lewd or lascivious battery is a very serious felony in Florida. It can be charged as either a result of actual (physical) battery or enticement. It is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.

Though being charged with lewd or lascivious battery is very scary, there are various lawful defenses that exist to the charge. These include alibi, false allegation, no enticement, age of the victim, challenges to child hearsay, and more. One or more of these defenses may be applicable in any given case. 

In the event someone is charged with a lewd or lascivious offense, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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