FAQs About Attempted Lewd or Lascivious Battery in Florida

September 23, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, attempted lewd or lascivious battery (Fla. Stat. 800.04(4) and 777.04) is a very serious criminal offense. However, it is often overlooked in discussions about the state’s sex crimes. This blog will answer frequently asked questions about attempted lewd or lascivious battery.

#1 – What is attempted lewd or lascivious battery?

Attempted lewd or lascivious battery occurs when someone specifically intends to commit a lewd or lascivious battery and performs an “overt act” (beyond mere preparation) designed to effectuate the commission of the crime – but fails to complete it.

#2 – What must the State prove for someone to be guilty?

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

• The defendant specifically intended to engage in sexual activity with the victim involving oral, anal or vaginal penetration or union by genitals, or anal or vaginal penetration with an object
• The victim was 12 or older, but younger than 16 years old
• The victim was not or would not have been forced or coerced into the act (willing and voluntary participation)
• The defendant performed an “overt act” (beyond mere preparation) in an effort to commit the crime, but failed to complete it 

Note: A failure to complete the crime can either be the result of the defendant being interrupted or stopped, or the defendant “changing their mind” after performing an overt act that constituted an unlawful attempt. Carlton v. State, 103 So. 3d 937 (Fla. 5th DCA 2012)

#3 – How are “penetration” and “union” defined?

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

#4 – Is attempted lewd or lascivious battery a felony?

Yes, attempted lewd or lascivious battery is a felony in Florida. It is punishable by up to 5 years in prison, 5 years of probation, and a $5,000 fine.

Attempted lewd or lascivious battery is punished one degree “below” the completed offense – lewd or lascivious battery (Fla. Stat. 800.04(4)) – which is a second-degree felony (up to 15 years in prison and a $10,000 fine).

#5 – What does “overt act” mean in the context of attempted lewd or lascivious battery?

Without overt action, there is no attempt. An overt act consists of “some movement” towards committing an underlying crime, but does not have to be the last possible act towards completing a crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018). 

Overt acts go beyond mere preparation. Mere preparation is defined as devising or arranging the means or measures necessary to commit a crime.

 #6 – What are some examples of “overt acts” versus “mere preparation”?

Examples of “overt acts” (beyond mere preparation) sufficient to support an attempted lewd or lascivious battery charge may include:

• Taking off the victim’s clothes as if to start of sexual activity 
• Touching the victim over clothing in a suggestive way, with the intent to have sex with them
• Positioning the victim in a suggestive manner while conveying a wish to have sex 

Examples of “mere preparation” (insufficient to support an attempted lewd or lascivious battery charge) may include:

• Fantasizing about sex with the victim but not acting to make this happen
• Driving over to the victim’s house hoping to engage in sex, but eventually choosing not to
• Drawing up a plan to seduce the victim but never acting on it 

As noted previously, there must be some “movement” towards committing the underlying crime. Without evidence of concrete action taken by the defendant to commit a lewd or lascivious battery, a conviction cannot be legally supported (Berger).

#7 – Can an attempted lewd or lascivious battery charge be brought alongside a traveling to meet a minor charge?

Yes, it can be. Florida’s 5th District Court of Appeal ruled in 2019 that charging someone for attempted lewd or lascivious battery and traveling to meet a minor does not violate double jeopardy if the minor (or person believed to be a minor) is aged 12 to 15. Byun v. State, 294 So. 3d 418 (Fla. 2d DCA 2019)

This was a significant development in Florida law, as courts have generally recognized other charges (e.g. solicitation of a minor and unlawful use of a two-way device) cannot be brought alongside traveling charges for the same course of conduct. State v. Shelley, 176 So.3d 914 (Fla. 2015).

However, attempted lewd or lascivious battery can be charged with traveling for the same incident. Though it is not too common, it is important to be aware of this.

#8 – What’s the difference between attempted lewd or lascivious battery and attempted sexual battery?

Attempted sexual battery (Fla. Stat. 794.011 and 777.04) occurs when someone tries to vaginally, anally, or orally penetrate (or make contact with) the genitals of a victim without their consent, but does not complete the crime. Attempted sexual battery also requires an overt act that goes beyond mere preparation.

Attempted lewd or lascivious battery occurs when someone performs an overt act intended to result in a lewd or lascivious battery – sexual intercourse with a victim between the ages of 12 and 15, who is willingly participating but cannot legally consent.

Attempted sexual battery is also a felony, but punished more severely. Penalties range from a third-degree felony if the defendant and victim are both adults (and there are no aggravating factors such as use of a weapon), to a first-degree felony if the victim is under 12 (up to 30 years in prison and a $10,000 fine, life in prison if victim’s sexual organs are injured). 

For more information on sexual battery and attempted sexual battery, click here.

#9 – Is someone required to register as a sex offender if convicted?

Yes, someone is required to register as a sex offender if they are found guilty of attempted lewd or lascivious battery. For more information on sexual offender and sexual predator designations in Florida, click here.

#10 – Can “Romeo and Juliet” serve as a defense?

No, as Florida’s “Romeo and Juliet” law is not actually a defense to the crime. If someone attempts to engage in sexual intercourse with a victim between 12 and 15, even if they are a willing participant, the crime of attempted lewd or lascivious battery has been committed.

However, “Romeo and Juliet” (Fla. Stat. 943.04354) may prevent someone from being forced to register as a sex offender if they are found guilty of the crime.

For the law to apply, all of the following must be true:

• The alleged victim must have been between the age of 14 and 17 years old at the time of the offense 
• The defendant must not be over four years (1,460 days) older than the victim
• The alleged victim consented to the sexual activity 
• The defendant has no prior convictions for any sex crimes

If all of these conditions are met, someone may file a petition to avoid the sex offender registry. The court has total discretion to grant or deny the petition – even if someone meets all of the requirements to avoid the registry, a judge may deny the petition and force someone to register as a sex offender anyway.

#11 – What defenses are available to a charge of attempted lewd or lascivious battery?

There are many lawful defenses available to an attempted lewd or lascivious battery charge, one or more of which may apply in any given case. These include:

• Lack of intent (the State must prove specific intent to commit the crime of lewd or lascivious battery as opposed to any other sex crime, per Donovan v. State, 821 So.2d 1099 (Fla. 5th DCA 2002))
• No overt act (e.g. merely thinking or planning)
• Age of the alleged victim: If the alleged victim is under 12, this is covered by sexual battery statutes. If the alleged victim is 16 or 17, this is covered by other laws such as unlawful sexual activity with certain minors (Fla. Stat. 794.05). The alleged victim must be between 12 and 15 (or believed to be if the defendant is charged with traveling in a police sting operation, per Byun v. State, 294 So. 3d 418 (Fla. 2d DCA 2019))
• Entrapment (if law enforcement induced a non-predisposed defendant to commit the offense)
• False allegations/motive to fabricate (especially effective if no corroborating evidence)
• Alibi/mistaken identity
• Procedural defenses (motions to suppress post-arrest statements pursuant to Miranda, motions to suppress/exclude unlawfully obtained evidence, etc.)

In sum, attempted lewd or lascivious battery is a very serious third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. Though it is not an extremely common charge, it may occasionally be brought – including after a law enforcement sting operation if someone travels to meet a fictional minor.

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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