Defenses to Lewd or Lascivious Conduct in Florida

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

In Florida, lewd or lascivious conduct (Fla. Stat. Section 800.04(6)) is a very serious felony offense. Lewd or lascivious conduct occurs when someone engages in deliberate, nonpenetrative touching of a victim under the age of 16 with a sexual intent or solicits a child under 16 to engage in lewd or lascivious conduct. 

If someone is charged with lewd or lascivious conduct, this is an extremely serious situation. However, there are various defenses that exist to the charge, one or more of which may be applicable depending on the facts of a given case. This article will explore those defenses. 

There are two types of lewd or lascivious conduct: touching ((Fla. Stat. 800.04(6)(a)(1)) and solicitation (Fla. Stat. 800.04(6)(a)(2)).

For someone to be proven guilty of lewd or lascivious touching, the State must establish the following occurred beyond a reasonable doubt:

• The defendant intentionally touched the victim
• The touching was done in a lewd or lascivious manner (“wicked,” “unchaste,” or done with the intent of sexual gratification)
• The victim was under 16 years old
• The defendant was not legally married to the victim

For lewd or lascivious solicitation, the State must prove the following beyond a reasonable doubt:

• The defendant solicited the victim to commit a lewd or lascivious act
• The solicitation was intentional and for a sexual purpose
• The victim was under 16 years old
• The defendant was not legally married to the victim

Note: “Solicit” means to command, encourage, hire, or request another person to engage in specific conduct, “to entice or lure especially into evil” and “to proposition (someone) especially as or in the character of a prostitute.” Grohs v. State, 944 So.2d 450 (Fla. 4th DCA 2006) 

In Florida, lewd or lascivious conduct is a second-degree felony if the defendant is an adult (over the age of 18), punishable by up to 15 years in prison and a $10,000 fine. If the defendant is a minor (under 18), lewd or lascivious conduct is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine.

Important: Unlike solicitation for lewd or lascivious molestation, solicitation in the context of lewd or lascivious conduct does not require a sexual touching to have actually occurred. Pamblanco v. State, 111 So.3d 249 (Fla 5th DCA 2013) 

Various legally valid defenses exist to lewd or lascivious conduct. The first of these is lack of sexual intent.

As Fla. Stat. 800.04(6) requires that the touching or solicitation of the victim have been “lewd or lascivious” in nature, a contextually-appropriate touching without sexual intent of a child under 16 is not illegal. Examples may include:

• Basic rough and tumble play between siblings or parents with a child
• Helping a child up after a fall
• Innocently hugging a child for support or to say goodbye
• Changing a diaper (parent, guardian, or daycare worker)
• Guiding a minor by the shoulder or arm

Another defense to lewd or lascivious conduct may be a false accusation or fabrication defense. This is a common defense: that the child fabricated the allegation due to influence, retaliation, or the allegation stemmed from a misunderstanding. This defense can be especially effective if the false accusation stems from family disputes, such as a custody fight.

Depending on the facts of a case, a critical component of a lewd or lascivious conduct defense may be the challenging 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 conduct) 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

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

In cases involving allegations of lewd or lascivious conduct, 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).

Similar to the lack of intent (general intent) defense is that the touching itself was not lewd in nature (nature of the act defense).

Examples of touching that does not qualify as lewd or lascivious as an objective fact may include:

• Accidental bump of a child’s side or hip in a crowded setting at an amusement park
• Seating a child in a chair or booster seat (task-related contact even if the child’s waist or upper leg is incidentally touched)
• A parent or teacher tucks in a child’s shirt or zips up their coat, touching around the waist and back for this purpose
• A babysitter wipes a child’s pants after a bathroom incident while in a caregiving role

A final defense, specifically to lewd or lascivious solicitation (800.04(6)(b)) is that no actual solicitation occurred. This can be a defense if there was no solicitous remark ever made to the child (requesting or suggesting the alleged victim engage in sexual conduct with them), or if the comment was misinterpreted.

Importantly, Florida’s courts have noted that unlike online solicitation of a minor (where soliciting a police officer believed to be a minor is a crime), lewd or lascivious solicitation must involve an actual minor under the age of 16. If a law enforcement officer pretends to be a minor and a solicitation occurs, this is not a violation of 800.04(6)(b). Pamblanco v. State, 111 So.3d 249 (Fla 5th DCA 2013) 

Though there are various legally valid defenses to a lewd or lascivious conduct charge, defenses that are not legally valid (“non-defenses”) include:

• Consent (minors under the age of 16 cannot consent to sexual activity under Florida law)
• Mistake of age (even if someone believed they were directing the conduct at an adult, this is not a defense if it was actually a minor under the age of 16)
• Relationship (a romantic or dating relationship with the minor under the age of 16 does not legalize the conduct)
• 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)
• No physical touching (valid defense in touching, but not in solicitation cases, which don’t require a physical touching)

In sum, lewd or lascivious conduct is a serious felony offense in Florida, punishable by a maximum of between 5 years (if the defendant is under 18) and 15 years in prison (if an adult defendant). There are two types of lewd or lascivious conduct under Fla. Stat. Section 800.04(6): touching and solicitation.

Various valid defenses exist to a lewd or lascivious conduct charge. These include false allegations, lack of sexual intent behind the touching, a lack of an act that could qualify as lewd or lascivious conduct (such as brushing up against the alleged victim in a crowd), lack of an actual solicitation, procedural challenges to the admission of child hearsay, and more.

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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