Lewd or Lascivious Molestation vs. Lewd or Lascivious Battery in Florida

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

In Florida, lewd or lascivious molestation (Fla. Stat. Section 800.04(5)) and lewd or lascivious battery (800.04(4)) are both very serious felony sexual offenses. Each of these crimes involve illegal sexual activity with a minor. However, there are key differences between them.

This article will discuss the elements of lewd or lascivious molestation and lewd or lascivious battery, as well as elements and potential defenses to these charges.

Lewd or Lascivious Molestation

For someone to be proven guilty of lewd or lascivious molestation, the State must prove all of the following 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 (actual touching required under Sylvaince v. State, — So.3d —- (Fla. 6th DCA 2025))
• The victim was 12 or older but under 16 years old 
• The touching was lewd or lascivious (“wicked,” “unchaste,” or done with the intent of sexual gratification)

The penalties for lewd or lascivious molestation vary depending on the age of the alleged victim and the age of the defendant:

• If the alleged victim is under 12 years old and the defendant an adult, 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 alleged 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 alleged 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 alleged 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 

Note: Lewd or lascivious molestation does not require sexual penetration of the alleged victim – only contact. This can include acts such as fondling, kissing, or rubbing against the clothed or unclothed sexual parts of the victim in a manner prohibited by the statute. Altman v. State, 852 So.2d 870 (Fla. 4th DCA 2003)

Separate from the offense of lewd or lascivious molestation is the offense of lewd or lascivious battery. For someone to be found guilty of lewd or lascivious battery (800.04(4)), the defendant may commit one of two separate offenses. 

The first (actual battery under 800.04(4)(a)(1), often referred to as “statutory rape”) requires the State prove all of the following beyond a reasonable doubt:

• The defendant engaged in sexual activity with the victim involving oral, anal or vaginal penetration or union with the genitals, or anal or vaginal penetration or union with an object (including a finger)
• The victim was 12 or older, but younger than 16 years old
• The defendant was not legally married to the victim

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

The second offense that is classified as lewd or lascivious battery (battery by enticement under 800.04(4)(a)(2)) is proven if the State establishes the following beyond a reasonable doubt:

• The defendant encouraged, enticed, or forced the victim to engage in sexual activity involving oral, anal or vaginal union or penetration (even if no contact actually occurred)
• The victim was younger than 16 years old
• The defendant was not legally married to the victim

Under Florida law, “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)

Lewd or Lascivious Battery

Lewd or lascivious battery (either by penetration/union or solicitation) is a second-degree felony in Florida. It is punishable by up to 15 years in prison and a $10,000 fine.

Given the above information, there are key differences that exist between lewd or lascivious molestation and lewd or lascivious battery. These include:

• Penalties: Lewd or lascivious molestation ranges from a third-degree felony to a life felony (depending on the ages of the victim and defendant). Lewd or lascivious battery is a second-degree felony (up to 15 years in prison and a $10,000 fine).
• Lewd or lascivious molestation requires lewd or lascivious touching of the victim (non-penetrative), whereas lewd or lascivious battery requires either penetration or union (if actual battery is charged).
• Requirement of contact: Lewd or lascivious molestation always requires an actual contact, per Sylvaince. Lewd or lascivious battery by enticement ((800.04(4)(a)(2)) does not require an actual physical contact.
• Age of victim: Lewd or lascivious battery (800.04(a)(1)) and lewd or lascivious molestation both require the victim to be between 12 and 15. However, lewd or lascivious battery by enticement (800.04(4)(a)(2)) may involve a victim of any age under 16.

Defenses to lewd or lascivious molestation may include any of the following:

• Lack of sexual intent of the contact: If an innocent contact (such as roughhousing) involves an accidental grabbing of an area prohibited by the statute in a non-lewd manner (no sexual intent), this is not lewd or lascivious molestation.
• False allegations or motive to lie
• Questioning forensic (Child Protection Team/DCF) interviewers, as well as moving for the exclusion of child hearsay statements (out-of-court abuse allegations, including a CPT interview tape) pursuant to Ortuno v. State, 54 So.3d 1086 (Fla. 1st DCA 2011)
• Lack of corroborating evidence (lack of DNA, witnesses, etc.)
• Alibi or mistaken identity (especially if GPS, witnesses, or other information exists showing the defendant could not have committed the crime)
• Poor memory: A contact actually occurred but the alleged victim misremembered this as sexual/was coached due to family disputes (such as custody fights, etc.)
• Procedural defenses such as challenging violations of the defendant’s Miranda rights, filing motions to suppress, etc.
• Age of the victim is not between 12 and 15

Defenses to lewd or lascivious battery are similar, but distinct in some respects. These may include:

• No sexual activity occurred: If there was a false allegation (no oral, anal or vaginal penetration or contact with the victim), this is a complete defense to the charge (unless battery by enticement is alleged)
• No encouragement, forcing, or enticing the victim to engage in a prohibited sex act (even if no sexual activity occurred)
• The alleged victim was 16 or older (rendering the statute inapplicable)
• Alibi defense: If the defendant was somewhere else at the time of the alleged incident, this can be a particularly effective defense
• Child hearsay challenges (as previously discussed, including the exclusion of CPT interview tape under Ortuno and asserting cross-examination rights under Crawford)
• Lack of evidence (no corroboration, discrepancies in forensic evidence/lack thereof, etc.)
• Procedural challenges
• Victim is not between 12 and 15 years old (if actual battery is alleged)

Consent and mistake of age (believing the child was older than they actually were) are not defenses to either of these charges. However, someone charged with lewd or lascivious battery may avoid the sex offender registry if there was no force or coercion involved – and the victim was both at least 14 years old and less than 1,460 days (4 years) younger than the defendant at the time of the act (Romeo and Juliet exception).

In sum, lewd or lascivious molestation and lewd or lascivious battery are both very serious felony offenses in Florida. Lewd or lascivious molestation occurs with an unlawful sexual touching of a victim between 12 and 15, and is punishable as anywhere between a third-degree felony (up to 5 years in prison and a $5,000 fine) and a life felony (punishable by up to life in prison).

By contrast, lewd or lascivious battery occurs when sexual penetration or union occurs involving a 12 to 15 year old victim (800.04(4)(a)(1)) or when any minor under the age 16 is encouraged, forced or enticed to engage in unlawful sexual activity – even if no physical contact occurs (800.04(4)(a)(2)). Lewd or lascivious battery in any form is punishable by up to 15 years in prison and a $10,000 fine.

Defenses to both of these charges may include procedural defenses, moving to exclude out of court child hearsay statements (such as CPT interview tapes), alibi, false allegations, lack of evidence, and more. However, consent and mistake of age are not valid defenses.

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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