Defenses to Lewd or Lascivious Exhibition in Florida

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

In Florida, lewd or lascivious exhibition is a very serious criminal offense. Under Fla. Stat. Section 800.04(7), lewd or lascivious exhibition is a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine) if the defendant is an adult, and a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine) if the defendant is under the age of 18.

If someone is charged with lewd or lascivious exhibition, this can be extremely concerning, as a conviction carries heavy potential penalties. However, there are various defenses that exist to the charge. This blog will explore defenses to an allegation of lewd or lascivious exhibition in Florida.

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

• The defendant masturbated, exposed the genitals in a lewd/lascivious manner, or committed another sexual act without physical contact
• The defendant did so in the presence of a minor under the age of 16 
• The defendant did so with the intent to arouse or gratify sexual desire of either the defendant or the minor

Under Florida law, lewd and lascivious acts are defined as those that involve “a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing the act.”

Lewd or lascivious exhibition is typically a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. If the defendant is under the age of 18, it is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. 

Note: For the alleged act to occur in the presence of the minor, this means that the minor saw, heard or otherwise sensed the act was occurring. The defendant must intentionally perform the act anyway for the purpose of arousing or gratifying themselves or the minor. Werner v. State, 590 So.2d 431 (Fla. 4th DCA 1991) 

If someone faces a charge of lewd or lascivious exhibition, many lawful defenses exist. One of these is no intent. If an act of exposure or exhibition occurred, but there was no lustful intent (for example, if someone is urinating and a minor happens to see this), this is not considered lewd or lascivious exhibition as a matter of law.

Another key defense is that the minor was not present. This goes beyond physical presence or proximity (as noted in Werner), the minor must hear, see or otherwise be aware that the specific act is occurring. If the minor cannot perceive the act, the act is said not to have occurred in the presence of the minor.

Important: Physical presence of the minor in the room/place where the alleged exhibition occurred is not required. Florida’s courts have upheld lewd or lascivious exhibition convictions on the grounds that even if this occurs over video chat, it is still “in the presence” of a minor if the minor can perceive what is occurring (and the act satisfies the other elements of the statute). State v. Sholl, 18 So.3d 1158 (Fla. 1st DCA 2009) 

An additional defense to this charge may be mistaken identity. This is a relevant defense if no surveillance or other corroborating evidence exists of the alleged act, and the alleged victim may have misidentified the defendant (especially if there was no preexisting relationship between the alleged victim and the defendant). 

Moreover, a defense of false allegation or fabrication may be applicable depending on the facts of a case. A false allegation can be especially common in situations where the accused is known to the alleged victim and there are disputes occurring (such as custody battles) that may give rise to a false allegation. If no corroborating evidence of the allegedly lewd or lascivious exhibition exists, this can be a particularly strong defense.

Finally, if the alleged minor was actually an undercover officer (especially if the alleged act occurred while online), there is the defense of entrapment. T

here are two types of entrapment defenses, either of which may be used depending on the facts of a case:

• Objective entrapment: Law enforcement conduct that is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against them. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment: If a subjective entrapment defense is used (Fla. Stat. Section 777.201), the defense must first prove by a preponderance of the evidence that the State induced the defendant to commit the offense. If inducement is established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993). If the State cannot do so, a charge of lewd or lascivious exhibition fails on entrapment grounds.

In rare cases, an insanity (NGRI) defense may be used if the defendant was suffering from a severe mental disease or defect at the time. Florida uses the M’Naghten Rule (Fla. Stat. 775.027), requiring one of the following two to be true for the insanity defense to succeed: 

• The defendant did not appreciate the nature of what they were doing due to the mental disease or defect
• Even if they knew what they were physically doing, the defendant did not appreciate that what they were doing was wrong due to the mental disease or defect

Note: The insanity defense does not apply if the defendant’s failure to appreciate what they were doing stems from voluntary intoxication (such as drug or alcohol use). This was abolished as a defense in Florida (Fla. Stat. 775.051).

Though there are many lawful defenses to a charge of lewd or lascivious exhibition in Florida, certain others are not considered legally valid. These include:

• “I was drunk/high”: Voluntary intoxication is not a defense. However, involuntary intoxication is a valid defense if the intoxication took place due to coerced ingestion, accidental ingestion, unexpected reaction, or medical misprescription – and this caused the defendant to be unable to form specific intent to commit the offense. Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997)
• Consent: Minors cannot consent to sex acts performed in their presence in Florida.
• Victim’s sexual history: Prior sexual history of the victim is generally inadmissible under 794.022(2) (“Rape Shield”), unless it is directly relevant to physical evidence in the case and necessary to establish someone other than the defendant may be the source of that evidence. 
• No physical contact: Lewd or lascivious exhibition does not require physical contact, only that the act was performed with sexual intent in front of the alleged victim.

In sum, lewd or lascivious exhibition is a very serious criminal offense, typically charged as a second-degree felony. It involves a defendant masturbating, exposing their genitals in a lewd/lascivious manner, or committing another sexual act without physical contact in the presence of a minor under the age of 16. 

However, many defenses exist to this charge. These include lack of lewd or lascivious intent, no “presence” of the child as defined in Werner, mistaken identity, false allegations, entrapment, insanity, involuntary intoxication, 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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