Defenses to Lewd or Lascivious Molestation in Florida

July 11, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, lewd or lascivious molestation (Fla. Stat. Section 800.04(5)) is a very serious felony offense that is charged when a victim is less than 16 years of age. Though lewd or lascivious molestation is always a felony in Florida, the severity of the criminal penalties depends on the age of the victim and the defendant:

• If the victim is under 12 years old and the defendant is 18 or older, lewd or lascivious molestation is a life felony punishable by up to life in prison (and a mandatory minimum of 25 years) and lifelong sex offender probation
• If the victim is under 12 years old and the victim is under the age of 18, lewd or lascivious molestation is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine 
• If the victim is between 12 and 15 years old and the defendant is over the age of 18, lewd or lascivious molestation is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine 
• If the victim is between 12 and 15 years old and the defendant is under the age of 18, lewd or lascivious molestation is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine 

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

• The defendant intentionally touched the breasts, genitals, genital area, buttocks or clothing covering them of the victim without the victim’s consent, or enticed or solicited the victim to touch them in this manner
• The victim was under 16 years old
• The touching was lewd or lascivious (“wicked,” “unchaste,” or done with the intent of sexual gratification)

Note: Florida’s courts have found that there must be physical contact of the nature prohibited by Fla. Stat. Section 800.04(5) for someone to be convicted of lewd or lascivious molestation. If a defendant attempted to have the victim touch them in a prohibited manner but no contact actually occurred, this is not lewd or lascivious molestation. Sylvaince v. State, — So.3d —- (Fla. 6th DCA 2025).

If someone is accused of lewd or lascivious molestation, this can be very stressful given the potential criminal penalties. However, there are various legal defenses to lewd or lascivious molestation in Florida, one or more of which may be applicable to a given case depending on the facts. This article will explore those defenses.

One of the most prominent defenses to lewd or lascivious molestation is lack of sexual intent (innocent touching). For someone to be proven guilty of lewd or lascivious molestation under Fla. Stat. Section 800.04(5), it is legally insufficient to simply observe that physical contact occurred in the prohibited bodily region. The law also requires that the touching was intentional and sexual in nature. 

Another defense to a lewd or lascivious molestation charge is that the alleged victim is bringing a false allegation and/or has motive to lie. This may be a particularly relevant defense if something is occurring that may give the alleged victim an incentive to bring a false accusation such as a custody battle or other family dispute.

If a false allegation defense is relied upon, the defendant’s cross-examination of the alleged victim can be used to potentially bring out information regarding:

• Inconsistencies in the content of the allegations
• Coaching by a parent or relative
• Bias or motive to fabricate

Another component of a defense to a charge of lewd or lascivious molestation is questioning forensic (Child Protection Team/DCF) interviewers. As leading or suggestive questioning can taint a child’s memory, a defense attorney may point out such tactics if they were used and confront the child interviewer at trial if this occurred. If necessary, a child forensic psychology expert may be called to analyze interview techniques.

Another key aspect of defending against a lewd or lascivious molestation charge is challenging the admissibility of child hearsay statements (out-of-court abuse allegations). Hearsay is 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), out of court allegations of child abuse (including lewd or lascivious molestation) can be used as substantive evidence in court if the following are true:

• The statement is nontestimonial in nature (such as a disclosure to a parent or teacher, or an initial 911 call reporting the abuse right after it happens)
• The child has a physical, emotional, mental or developmental age of 17 or younger
• There is a substantial likelihood that the child would experience serious mental or emotional harm from testifying 
• The statement is not considered untrustworthy (courts use various factors such as age, nature and duration of the abuse, spontaneity of the statement, terminology used by the child, etc. to evaluate trustworthiness)

But if a court determines the child hearsay is testimonial in nature (such as in a CPT interview or an interview with police), child hearsay 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).

One of the most common forms of testimonial hearsay is a CPT interview.

Though prosecutors may sometimes try to admit a CPT (forensic) interview as evidence at trial, this is not permitted unless:

• The alleged victim and the forensic examiner both give sworn testimony regarding the allegations/content of the interview, and the defendant is afforded the opportunity to cross-examine them 
• The introduction of the interview is for the purpose of rebutting defense allegations of recently developed motive to lie or fabricate (must have arisen between the time of the CPT interview and the child’s current testimony under Fla. Stat. 90.801(2)(b)). Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011)

An additional defense in a case involving a charge of lewd or lascivious molestation in Florida is a lack of corroborating evidence. Many lewd or lascivious molestation allegations do not offer any physical evidence to support them. 

If the case rests entirely on the uncorroborated testimony of a single alleged victim, a defense attorney may argue reasonable doubt on this basis. A delayed disclosure may also be attacked on credibility grounds, especially if events had recently occurred in the victim’s life that may have provided an incentive for a false allegation.

Another defense that may be relevant in a lewd or lascivious molestation case is an alibi or impossibility defense. If the defendant has evidence they were not present or could not have committed the alleged act, this can fundamentally change the trajectory of a case.

Particularly useful evidence of alibi or impossibility may include:

• Testimony from other witnesses indicating the defendant was not where the crime allegedly occurred
• GPS data and phone records
• Video footage

Yet another defense that may be used if someone is accused of lewd or lascivious molestation is that the allegations stem from exaggeration or poor memory. Distinct from a fabricated allegation defense (when no contact actually occurred), an exaggerated or misremembered allegation may stem from contact made during a non-sexual event (such as roughhousing).

If there is evidence contact did indeed occur but it was misremembered by the child as having sexual intent behind it, an exaggerated allegation/poor memory defense can be a potent and effective one, depending on the facts of the case.

Unlike the listed defenses, certain other defenses to lewd or lascivious molestation charges are considered legally invalid (“non-defenses”) in Florida. These include:

• Consent (a minor cannot legally consent to sex)
• Mistake or lack of knowledge of the victim’s age (strict liability applies regardless of if the child looked older or misrepresented their age)
• 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 sexual penetration (this is a defense to sexual battery, but not lewd or lascivious molestation if the elements of 800.04(5) are satisfied)
• The child initiated the interaction (does not matter who initiated under the statute)

In sum, lewd or lascivious molestation is a serious felony in Florida involving intentional, non-penetrative sexual touching of a victim under the age of 16. Depending on the ages of the victim and defendant, it is punishable by between a maximum of 5 years in prison (third-degree felony, defendant younger than 18 and victim aged 12-15) and life in prison (life felony, adult and victim younger than 12).

But if someone is accused of lewd or lascivious molestation, various defenses exist. These include an alibi defense, false allegation, exaggeration or poor memory, lack of direct/forensic evidence, and challenges to the admissibility of child hearsay and forensic interviewing tactics.

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 who have been charged with any sex crime.

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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