Does Lewd and Lascivious Molestation Require Physical Touching? A Major Florida Court Says Yes

June 9, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

If someone is charged with lewd or lascivious molestation via “enticing” a victim to touch them in an unlawful manner, does this require the victim to have actually touched that person, or does it simply require “enticing” them to do so? This article will explore a recent Florida court ruling that lewd or lascivious molestation requires actual physical touching of the victim, or of the perpetrator by the victim. 

In Florida, lewd or lascivious molestation is considered a very serious felony offense. It occurs when an adult intentionally touches someone under 16 years old in a lewd or lascivious manner, or entices a victim to “so touch” them. Lewd or lascivious molestation is typically considered a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine.

Under Fla. Stat. Section 800.04(5)(a) and (b), the felony of lewd or lascivious molestation is committed when either of the following occur:

• Someone intentionally touches, in a lewd or lascivious manner, the breasts, genitals, genital area, or buttocks (or the clothing covering any of them) of a person less than 16 years of age
• Someone forces or entices a person under 16 to touch them in any of these prohibited areas

Lewd or lascivious molestation is considered a second-degree felony when any of the following occur:

• Someone over the age of 18 commits the offense against a child between the ages of 12 and 15
• Someone under the age of 18 commits the offense against a child less than 12 years of age

Lewd or lascivious molestation is considered a life felony if committed by a person who is over 18 years of age on a victim under the age of 12. This is punishable by up to life in prison.

If lewd or lascivious molestation is committed by a person under the age of 18 upon a child between the ages of 12 and 15, this is considered a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine.

Note: Under Florida law, the terms “lewd” or “lascivious” are defined interchangeably as “wicked, unchaste, or lustful.”

In Florida’s Fourth District Court of Appeal case Sylvaince v. State, the question of the language of Florida’s lewd or lascivious molestation statute was at issue. Fla. Stat. Section 800.04(5)(a) defines lewd or lascivious molestation as the following:

“A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.”

At trial, Sylvaince was accused and convicted of lewd or lascivious molestation, among other charges. Specifically, Sylvaince was accused of luring his partner’s daughter (a child) into a bathroom where he requested she touch his genitals in a manner that violates the statute. The child ran out and alerted her mother, who called the police.

On appeal, the State argued that despite a lack of a physical touching, Sylvaince could be convicted of lewd or lascivious molestation because he forced or enticed the victim to touch him in a manner that violated the statute. Sylvaince countered and argued that because no physical touching occurred, he did not commit the offense of lewd or lascivious molestation as a matter of law. 

The Fourth District Court of Appeal agreed with Sylvaince, and reversed his conviction for lewd or lascivious molestation. It reasoned the following:

“Based on the charge brought in this case of lewd or lascivious molestation under section 800.04(5)(a), the postpositive modifier “to so touch” modifies the preceding verbs “forces or entices” and these actions, in turn, follow the first prohibition contained in section 800.04(5)(a) of “[a] person who intentionally touches in a lewd or lascivious manner….” Id. (emphasis added). The evidence presented at trial and the State’s argument failed to establish that a lewd or lascivious touching occurred either by Sylvaince or by the child. There are no acts listed in section 800.04(5)(a) for which physical contact is not required.”

Put simply, the court held that if no touching prohibited by the statute occurs, an attempt to force or entice a victim to do so cannot itself be considered lewd or lascivious molestation.

In sum, lewd or lascivious molestation is a serious felony offense in Florida. It is punishable by up to life in prison if the offender is over 18 and a child victim is under 12 years old, and under other circumstances, as a second- or third-degree felony. 

For the crime of lewd or lascivious molestation to be committed, Sylvaince has ruled that an actual physical touching must occur that violates the statute. “Forcing or enticing” an alleged victim to engage in lewd or lascivious sexual contact, without this contact occurring, does not constitute lewd or lascivious molestation under Fla. Stat. Section 800.04(5)(a) as a matter of law.

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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