FAQs About Lewd or Lascivious Battery in Florida

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

In Florida, lewd or lascivious battery is a very serious criminal offense. However, it is often misunderstood – and commonly confused with other crimes. This blog will answer frequently asked questions about lewd or lascivious battery in Florida (Fla. Stat. 800.04(4)).

#1 – What is lewd or lascivious battery?

Lewd or lascivious battery is one of the various “lewd or lascivious” sex offenses in Florida. It occurs when an adult engages in penetrative sexual intercourse with a minor between the ages of 12 and 15, without the use of force or coercion (Fla. Stat. 800.04(4)(a)(2)).

It also occurs when an adult forces, entices, or encourages any child under the age of 16 to engage in sadomasochistic abuse, bestiality, prostitution, or any other act involving unlawful sexual activity – even if the act never occurs (Fla. Stat. 800.04(4)(a)(2)).

#2 – What must be proven for a defendant to be convicted?

This depends on the type of lewd or lascivious battery the defendant is charged with. If someone is accused of lewd or lascivious battery by penetration under 800.04(4)(a)(1), the State must prove the following elements beyond a reasonable doubt:

• The defendant engaged in sexual activity with the victim
• The victim was between 12 and 15 years of age.

“Sexual activity” means the oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object (Fla. Stat. 800.04(1)).

If someone is accused of lewd or lascivious battery by enticement (Fla. Stat. 800.04(4)(a)(2)), the following must be proven beyond a reasonable doubt:

• The defendant encouraged, forced, or enticed a victim to engage in any act involving sexual activity, sadomasochistic abuse, sexual bestiality, or prostitution
• At the time, the victim was under 16 years old (15 or younger)

“Entice” means “to attract artfully or adroitly or by arousing hope or desire: tempt.” It also means to lure, induce, tempt, incite, or persuade a person to do a thing. Lindemuth v. State, 247 So.3d 635 (Fla. 3d. DCA 2018)

#3 – Is lewd or lascivious battery a felony or misdemeanor?

Lewd or lascivious battery is a second-degree felony under Florida law. This makes it punishable by up to 15 years in prison, 15 years of probation, and a $10,000 fine. Someone may face other penalties if convicted – such as compulsory sex offender registration.

Lewd or lascivious battery becomes a first-degree felony (up to 30 years in prison and a $10,000 fine) if someone has been previously convicted of any of the following offenses:

• Kidnapping or aggravated kidnapping (with the intent to commit sexual battery or harm/terrorize the victim)
• False imprisonment with sexual or violent intent
• Sexual battery
• A lewd or lascivious offense committed upon or in the presence of an elderly person or disabled adult (Fla. Stat. 825.1025)
• Committing a sexual act online in the presence of a victim under 16 (e.g. masturbation or lewd exhibition of genitals) that does not involve physical contact with the victim (Fla. Stat. 847.0135(5))
• Any lewd or lascivious offense under Fla. Stat. 800.04 (battery, molestation, exhibition, conduct)

#4 – Does lewd or lascivious battery require physical contact with the victim?

Sometimes – but this depends on which of the two forms of lewd or lascivious battery someone is charged with. If the defendant is accused of lewd or lascivious battery via penetration, this does require the commission of an actual sex act upon a victim between 12 and 15 years of age.

If someone is charged with lewd or lascivious battery by enticement, this does not require any physical contact between the defendant and the victim. Simply encouraging or enticing a minor (under 16) to engage in unlawful sexual activity is classified as lewd or lascivious battery under the statute.

#5 – Is there a mandatory minimum sentence for lewd or lascivious battery?

No, there is technically not a mandatory minimum sentence for lewd or lascivious battery. Though it is extremely likely someone will be sent to prison if convicted (given that lewd or lascivious battery is a Level 8 offense), it does not carry a mandatory minimum sentence.

This is an increasingly common question, as a new Florida law (HB 1455) provides mandatory minimum penalties for those convicted of additional sex crimes after having been designated as a sex offender or sexual predator. Lewd or lascivious battery is not covered by HB 1455 – but lewd or lascivious molestation (800.04(5)) is.

#6 – What if I didn’t know the victim was a child?

This is irrelevant under Florida law. Mistake of age is not a defense in Florida – even if the erroneous belief in the minor’s adult status was genuine and caused by a misrepresentation on the part of the minor. Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006)

#7 – What’s the difference between lewd or lascivious battery and statutory rape?

There isn’t one, as lewd or lascivious battery under Fla. Stat. 800.04(a)(1) is widely known as Florida’s prohibition on “statutory rape.” The statute makes sexual penetration or union with a victim between 12 and 15 years old a felony in all cases – regardless of whether or not force or coercion was used and regardless of the age of the defendant.

#8 – What is the difference between penetration and union?

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

Both union and penetration are considered lewd or lascivious molestation if done in a manner that violates the statute. But if illegal sexual penetration occurs, this results in double the victim injury points on a defendant’s sentencing scoresheet compared to “union” (40 for union, 80 for penetration). Green v. State, 765 So.2d 910 (Fla 2d. DCA 2000). 

As a result, a lewd or lascivious battery involving sexual penetration is likely to be punished more heavily (in terms of sentencing) than one that involves “union” (contact). However, both are very serious second-degree felonies that can carry many years in prison.

#9 – What is the difference between lewd or lascivious battery and sexual battery?

There are various differences between lewd or lascivious battery (Fla. Stat. 800.04) and sexual battery (Fla. Stat. 794.011). These include:

• Lewd or lascivious battery involves a victim between 12 and 15 (or under 16 if battery by enticement); sexual battery victims can be any age
• Lewd or lascivious battery is a second-degree felony; sexual battery can be anywhere from a capital felony (punishable by death, mandatory minimum life in prison) to a second-degree felony
• Sexual battery always requires non-consensual penetration or union; lewd or lascivious battery does not always (e.g. encouragement or enticement)
• Consent is irrelevant to a lewd or lascivious battery charge; lack of consent is key in a sexual battery case (unless victim is underage)

#10 – What if no force or coercion was used?

This is irrelevant if someone is charged with lewd or lascivious battery (unless no sexual act occurred at all). If someone engages in sexual activity (penetration or contact) with a minor between the ages of 12 and 15, lewd or lascivious battery has been committed. 

Minors are incapable of consenting to sex in Florida. Thus, while the use of force or coercion may qualify someone for a greater charge (e.g. sexual battery on a minor), the occurrence of sexual activity involving a minor is always a crime.

#11 – What if the defendant is in a position of familial or custodial authority?

If a victim is between 12 and 15 years old and a defendant is in a position of familial or custodial authority, the defendant cannot be convicted of lewd or lascivious battery (by penetration or contact). This is because sexual penetration or contact with a minor by a person in familial or custodial authority is always considered sexual battery.

For someone to be considered a custodian of the child victim for purposes of enhancing the charge brought against them, they must meet at least one of the following criteria under Stricklen v. State, 504 So.2d 1248 (Fla. 1st DCA 1986):

• They maintained a “close relationship” with the alleged child victim or other children of the specified age (e.g. a school employee during the year)
• They lived in the same household as the alleged child victim (e.g. a stepparent)

“Familial authority” is defined as a relationship with the child victim that creates “a recognizable bond of trust” like that between a child and a father, grandfather, uncle, or guardian. Crocker v. State, 752 So.2d 615 (Fla. 2d. DCA 1999). 

#12 – Is the Romeo and Juliet law a defense?

No, “Romeo and Juliet” is not a defense to lewd or lascivious battery (statutory rape) in Florida. This is because the occurrence of sexual penetration or union with a minor under the age of 16 is automatically a crime under the statute.

The only function of Florida’s Romeo and Juliet law (Fla. Stat. 943.04354) is to potentially allow someone found guilty of lewd or lascivious battery to avoid the sex offender registry. However, a variety of conditions must be first met:

• The defendant must be 1,460 days (4 years) or fewer older than the victim
• The victim must have been at least 14 at the time of the offense
• The alleged victim consented to the sexual activity (not legally, but willingly engaged in the activity without force or coercion)
• The defendant has no prior convictions for any sex crimes

If these conditions are met, someone may avoid the sex offender registry if they file Romeo and Juliet law petition. But this is entirely up to the court – and a judge may deny a petition even if the defendant meets all the required conditions.

#13 – Are there other “lewd or lascivious” offenses?

Yes, there are. Other lewd or lascivious offenses under Florida law include lewd or lascivious molestation, lewd or lascivious exhibition, and lewd or lascivious conduct. These can be and are often confused for lewd or lascivious battery. For additional information on these crimes, click here.

#14 – Is lewd or lascivious battery a lesser-included offense of sexual battery?

It can be. Lewd or lascivious battery is considered a Category 2 (permissive) lesser-included offense of sexual battery. Nixon v. State, 342 So. 3d 691 (Fla. 1st DCA 2022)

This means that if the evidence at trial warrants it, a judge may choose to instruct the jury regarding lewd or lascivious battery at a sexual battery trial (e.g. if a victim is between 12 and 15, the defendant is an adult, and consent is the only element in dispute). 

#15 – What are defenses to lewd or lascivious battery?

Many defenses exist if someone is accused of lewd or lascivious battery in Florida, one or more of which may be applicable in a given case. These include:

• False allegations/fabrication (especially if there is a lack of any corroborating evidence of the charged conduct)
• Lack of penetration/contact (e.g. rubbing the outside of the victim’s clothes, can still be a crime but not lewd or lascivious battery)
• Mistaken interpretation by the victim (e.g. erroneously believing the defendant was forcing/enticing/encouraging them to engage in sexual conduct)
• Alibi/misidentification (especially powerful if evidence the defendant was in another location at the time, such as phone records or GPS data)
• Insufficient evidence (e.g. touch DNA being the only evidence offered by the State of a battery)
• Procedural challenges (e.g. moving to suppress or exclude certain evidence such as illegally obtained evidence, a defendant’s post-arrest statements, or child hearsay statements such as CPT interviews pursuant to Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011))

In sum, lewd or lascivious battery is a very serious offense in Florida. Though it is typically a second-degree felony, it can also be punished as a first-degree felony under certain circumstances (e.g. prior sex crime convictions).

By understanding the answers to the above FAQs, someone will be significantly better informed if they or a loved one are ever facing lewd or lascivious battery charges. 

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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