Lewd or Lascivious Conduct vs. Lewd or Lascivious Exhibition in Florida

July 29, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In Florida, lewd or lascivious conduct (Fla. Stat. 800.04(6)) and lewd or lascivious exhibition (Fla. Stat. 800.04(7)) are both serious felony offenses. Though these may seem indistinguishable at first glance, lewd and lascivious exhibition and lewd or lascivious conduct are distinct offenses under Florida law.

Note: Lewd and lascivious acts involve “a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing the act.” State v. Knighton, 235 So. 3d 312 (Fla. 2018)

This blog will discuss the elements of lewd or lascivious conduct and lewd or lascivious exhibition, outline the penalties and defenses for each, and discuss the similarities and differences of these two offenses. 

Lewd or Lascivious Conduct

For someone to be proven guilty of lewd or lascivious conduct, they must commit one of two prohibited acts under the statute. The first of these is lewd or lascivious conduct by touching (800.04(6)(a)(1)).

The State must prove the following elements beyond a reasonable doubt to secure a lewd or lascivious conduct by touching conviction:

• The defendant intentionally touched the victim
• The victim was under the age of 16 at the time of the illegal touching
• The touching was done in a lewd or lascivious manner (“wicked,” “unchaste,” or done with the intent of sexual gratification)
• The defendant was not legally married to the victim

Important: Florida’s courts have held that it is a double jeopardy violation for someone to be convicted of both lewd or lascivious molestation (800.04(5)) and lewd or lascivious conduct by touching (800.04(6)(a)(1)), if these arise from the same course of conduct. McCray v. State, 306 So. 3d 382 (Fla. 5th DCA 2020).

The second form of lewd or lascivious conduct is lewd or lascivious conduct by solicitation (800.04(6)(a)(2)).

For this to be established, the State must prove all of the following elements beyond a reasonable doubt:

• The defendant solicited the victim to commit a lewd or lascivious act (an act considered wicked, unchaste, or done with the intent of sexual gratification)
• The solicitation was intentional and done for a sexual purpose
• The victim was under 16 years old
• The defendant was not legally married to the victim

Florida courts have defined “solicit” as to command, encourage, hire, or request another person to engage in specific conduct, “to entice or lure especially into evil” and “to proposition (someone) especially as or in the character of a prostitute.” Grohs v. State, 944 So.2d 450 (Fla. 4th DCA 2006) 

Both lewd or lascivious conduct by touching and lewd or lascivious conduct by solicitation are second-degree felonies if the defendant is an adult – punishable by up to 15 years in prison and a $10,000 fine. If the defendant is a minor (under 18), this is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

Many defenses exist to lewd or lascivious conduct (by either touching or solicitation) if someone is charged in Florida. These may include:

• Lack of sexual intent: If someone incidentally touches a minor in a non-sexual manner (such as rough and tumble play between a parent and a child, innocently hugging a child to say goodbye, etc.), the touching is not illegal as it is not lewd or lascivious.
• False allegation: If a minor alleges lewd or lascivious conduct has occurred, a potential defense may be arguing that the allegation is false. This is especially compelling if there is no corroborating evidence and there is a plausible theory for the false allegation (such as improper influence, custody battles, resentment, etc.)
• Lack of solicitation: If someone is charged with lewd or lascivious conduct by solicitation, a lack of a sexual solicitation (such as a comment being misconstrued) can be a potent defense – especially if there is a lack of evidence this occurred or the alleged solicitation can be construed non-sexually.
• Procedural challenges: These may include moving for exclusion of a defendant’s post-arrest statements if their Miranda rights are violated, filing motions to suppress evidence obtained in violation of a defendant’s constitutional rights (pursuant to Wong Sun v. United States, 371 U.S. 471 (1963)), etc.
• Challenging child hearsay: Under Fla. Stat. Section 90.803(23), a child’s out of court allegations of abuse are admissible without the child’s testimony if this is nontestimonial hearsay and if certain conditions are satisfied (sufficiently reliable, likely mental harm from testifying, etc.). However, if this is excluded, the child must testify for the allegation to be heard. CPT (forensic) interviews are almost always inadmissible (Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011)).
• Alibi/mistaken identity: This defense is especially compelling if the parties did not know one another and there is corroborating evidence (GPS, messages, phone calls, witnesses) that the defendant was somewhere else at the time of the alleged offense.
• Lack of evidence: The State must prove the charges beyond a reasonable doubt – so a lack of sufficient corroboration of the offense can be cited as grounds for that reasonable doubt by an experienced and aggressive defense attorney.

Lewd or Lascivious Exhibition

Lewd or lascivious exhibition (Fla. Stat. 800.04(7)) is a similar, but distinct offense. It involves the performance of a sex act or exposure of the genitals in front of a minor victim, but a lack of actual physical contact that may constitute another lewd or lascivious offense.

For lewd or lascivious exhibition to be established, the State must prove the following elements beyond a reasonable doubt:

• The defendant masturbated, exposed their genitals in a lewd or lascivious manner, or committed another sexual act that did not involve physical contact
• The defendant did this in the presence of a minor under the age of 16
• The defendant did so with the intent to arouse or gratify the sexual desire of either the defendant or the minor
• The defendant was not legally married to the victim

If the defendant is an adult, 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 a minor, lewd or lascivious exhibition is punishable by up to 5 years in prison and a $5,000 fine.

The question of whether the offense occurred in the “presence” of the minor is sometimes in dispute in these cases. For lewd or lascivious exhibition to occur, the minor victim must have seen, heard or otherwise sensed that the sexual act was occurring. Proximity to the minor alone, without awareness, does not prove presence. Werner v. State, 590 So.2d 431 (Fla. 4th DCA 1991) 

However, presence does not necessarily mean physical presence. Even if the lewd or lascivious exhibition occurs via Zoom, Skype or another internet service (but the minor can perceive what is occurring), the offense is committed. State v. Sholl, 18 So.3d 1158 (Fla. 1st DCA 2009) 

Florida’s courts determine whether the exhibition was lewd or lascivious based on the totality of the circumstances (generally requiring the defendant to be aware of the minor’s presence and engage in the act constituting lewd or lascivious exhibition anyway). Egal v. State, 469 So. 2d 196 (Fla. 2d. DCA 1985). In some cases, nudity alone (even without an actual sex act) can be sufficient to commit the offense. Id. 

Various defenses exist to lewd or lascivious exhibition, which may include:

• Lack of lewd or lascivious intent: The alleged act was not done with a lewd or lascivious intent (to arouse or sexually gratify the defendant or the victim).
• No presence of the minor: If the minor did not sense the act was occurring at the time, this is not considered presence per Warner.
• No knowledge of the minor’s presence/intent to be seen: Though the law does not explicitly require the defendant to have understood a minor was present (only presence), courts have been reluctant to find lewd or lascivious exhibition when the minor’s awareness of the act was unintentional or outside the defendant’s control. Chesebrough v. State, 255 So.2d 675, 678 (Fla. 1971); Goodmakers v. State, 450 So.2d 888, 891 (Fla. 2d DCA 1984)
• Entrapment: If the victim is actually a police officer, entrapment may be a relevant defense. Objective entrapment involves police 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 requires the defendant to prove by a preponderance of the evidence they were induced to act – if this is done, the State must prove predisposition beyond a reasonable doubt. Munoz v. State, 629 So. 2d 90 (Fla. 1993)
• Alibi/mistaken identity
• False allegations
• Challenging child hearsay (exclusion of CPT interview under Ortuno v. State, filing motions asserting the defendant’s right to cross-examine the alleged victim pursuant to Crawford v. Washington, etc.)
• Procedural defenses (Miranda violation challenges, motions to suppress, etc.)

Based on the above, the key differences between lewd or lascivious exhibition and lewd or lascivious conduct are the following:

• Nature of the crime: Lewd or lascivious conduct requires an actual touching or solicitation, whereas lewd or lascivious exhibition requires a sex act be performed in the presence of the victim that does not involve physical contact
• Intent: Lewd or lascivious exhibition involves intent to be seen by the minor, whereas lewd or lascivious conduct involves an attempted engagement of the minor to do sexual activity

In sum, lewd or lascivious conduct (Fla. Stat. 800.04(6)) and lewd or lascivious exhibition (Fla. Stat. 800.04(7)) are serious felony offenses in Florida. Lewd or lascivious conduct requires either actual physical touching in a lewd or lascivious (sexual) manner or a solicitation of a minor to engage in a lewd or lascivious act. It is a second-degree felony if the offender is an adult.

Lewd or lascivious exhibition carries identical potential penalties, but has different elements. Lewd or lascivious exhibition involves intentional masturbation, exposing the genitals in a lewd or lascivious manner or engaging in a sex act in the presence of a minor victim for purposes of arousal. Presence is defined as awareness that the act was occurring under Werner v. State.

Defenses largely overlap and include false allegations, mistaken identity, procedural challenges, challenges of child hearsay, and more. One or more of these defenses may be applicable in a given case, making it critical to consult an attorney as soon as possible if someone is charged. 

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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