Major FL Court Affirms Downward Departure Sentence in Lewd or Lascivious Battery Case

March 5, 2026 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Case Summary

Florida’s 5th District Court of Appeal affirmed a downward departure sentence for a defendant convicted of lewd or lascivious battery on a 13-year-old, finding the defendant did not know she was underage and she was willingly engaged in prostitution.

• CASE: State v. Brooks, 739 So.2d 1223 (Fla. 5th DCA 1999)
• Charge(s): Lewd or lascivious battery
• Outcome: Downward departure sentence affirmed, as the victim was a “willing participant” in the conduct and the defendant believed she was an adult.

Lewd or Lascivious Battery Charges in Florida

In Florida, lewd or lascivious battery (Fla. Stat. 800.04(4)) is a very serious felony offense. For someone to be guilty, the State must 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 
• The victim was 12 or older, but younger than 16 years old
• The defendant was not legally married to the victim

Lewd or lascivious battery is a second-degree felony in Florida, punishable by up to 15 years in prison and a $10,000 fine.

A common question is – what is the difference between lewd or lascivious battery and sexual battery (Fla. Stat. 794.011) in Florida? The key distinction is:

• Lewd or lascivious battery occurs when a defendant engages in sexual intercourse with a minor over 12 but under 16, in which the minor willingly participates (not legal consent, but wishes to engage in the activity and was not forced/coerced to do so)
• Sexual battery occurs when the same act is performed by the defendant against the will of the victim

Though neither offense is done with legal consent (since minors are unable to legally consent to sex), the Florida Legislature recognizes minors 12 and older may have “willingly participated” in sexual conduct under certain circumstances. However, if a minor is under the age of 12, any sexual penetration is automatically considered capital sexual battery as a matter of law.

Note: Though lewd or lascivious battery is a second-degree felony for adults, it is a third-degree felony if the defendant is a minor (under 18), punishable by up to 5 years in prison and a $5,000 fine. 

If someone commits lewd or lascivious battery in Florida (formerly called lewd, lascivious, or indecent assault upon a child), they are likely to face heavy criminal penalties – including prison time. Moreover, they are likely to be forced to register as a sex offender and/or sexual predator.

The only exception to this registry requirement is contained within Florida’s Romeo and Juliet law (Fla. Stat. 943.04354). Romeo and Juliet (contrary to popular belief) is not a defense to the crime. Someone is just as guilty of lewd or lascivious battery – regardless of if their conduct is “covered” by Florida’s Romeo and Juliet law.

The Romeo and Juliet law is a narrow piece of legislation that can be used only to help someone avoid the sex offender registry after they are found guilty.

For someone to qualify as “protected” by Romeo and Juliet (for purposes of avoiding registration as a sex offender/sexual predator), all of the following must be true:

• The alleged victim was 14 to 17 years old
• The defendant was less than 1,460 days older than the victim at the time of the offense (4 years)
• The alleged victim “consented” to the sexual activity (no force or coercion was used, no resistance was offered, and the victim wanted the act to occur)
• The defendant does not have a criminal history

Even if all of the above apply in a defendant’s case, a trial judge has total discretion to grant or deny a Romeo and Juliet petition. This means someone can qualify to “avoid” sex offender or sexual predator registration and still have their request denied – requiring them to register as a condition of their sentence. For more, click here.

If someone is found guilty of a lewd or lascivious offense in Florida (such as lewd or lascivious battery), they may seek a downward departure sentence. A downward departure occurs when a trial judge does not follow the CPC scoresheet guidelines as to a defendant’s potential sentence – and instead, imposes a more lenient (lighter) sentence than the “bottom” of the guidelines.

Trial judges usually rely upon statutory mitigators (e.g. mitigating factors) when a downward departure occurs. Examples of statutory mitigators in Florida include the following (under Fla. Stat. 921.0026):

• This is an isolated, unsophisticated incident for which the defendant has shown remorse
• The defendant was a relatively minor participant in the criminal conduct
• The alleged victim was an initiator, provoker, aggressor, or willing participant in the conduct
• The defendant was acting under extreme duress or the domination of another person
• The defendant suffers from a mental health disorder from which they are amenable to treatment

One of the most controversial grounds for a downward departure in a lewd or lascivious battery case – particularly if it involves a relatively young minor (e.g. 12 or 13 year old) – is “victim was a willing participant in the conduct.” State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999)

If there is evidence the victim of a lewd or lascivious offense willingly took part in the unlawful activity (e.g. showed no signs of resistance and may have even initiated the conduct), this is not a lawful defense to the charge. 

However, it may serve as the basis for a downward departure – depending on the facts of a case. At least one court, Florida’s 5th District Court of Appeal (Northeast FL’s highest court), reached this conclusion in a controversial ruling. 

Let’s look at State v. Brooks, 739 So.2d 1223 (Fla. 5th DCA 1999), and discuss what it means for defendants pursuing a downward departure in sexual battery and lewd or lascivious offense cases in Florida.

KEY CASE: State v. Brooks, 739 So.2d 1223 (Fla. 5th DCA 1999)

In Brooks, the defendant (Brooks) was out at approximately 4:00 a.m. and saw a female get out of the cab of a truck. Believing her to be a prostitute and of the age of consent, he asked her if she would like to make $20 by engaging in sex with him. She readily agreed and the two began to have sexual intercourse.

During the act, the female complained that she was experiencing pain. This resulted in Brooks not wishing to engage in any further carnal activity – and he requested a refund. After returning Brooks his money, the female went across the street and called law enforcement on Brooks. He was arrested – as the “adult prostitute” was actually a 13-year-old girl.

Brooks was charged with lewd assault on a minor (now considered lewd or lascivious battery). He spent approximately one and a half years in jail before trial, and was found guilty as charged. 

At sentencing, Brooks argued to the judge that the “victim was a willing participant” statutory mitigator should be applied in his case to grant a downward departure sentence. Brooks claimed he had a good faith belief the girl was an adult, and evidence revealed she willingly participated in the sexual encounter before it was called off. 

The State vociferously objected, arguing the 13-year-old could not truly consent to participation in sex (legally or otherwise) – and thus, could not be characterized as a “willing participant” in the conduct under Fla. Stat. 921.0026. 

However, the trial judge disagreed – finding Brooks had spent long enough in jail for what was effectively a “mistake.” Departing from the guidelines (which would have required Brooks to serve a prison sentence), the trial judge released Brooks (e.g. no additional time behind bars), finding a year and a half in custody was “sufficient” to “fit the crime.”

The State appealed the judge’s downward departure to Florida’s 5th DCA – arguing the judge misapplied State v. Rife, 733 So.2d 541 (Fla. 5th DCA 1999), which involved a 17-year-old victim, to a case involving a 13-year-old. However, the 5th DCA disagreed and affirmed the downward departure on the “victim was a willing participant” basis cited by the trial judge:

“We said in Rife that the younger and less mature the victim, the less likelihood of a finding that even willing participation is sufficient for mitigating. Although the victim in this case was young, her actions bespeak a maturity far beyond her years. She was out alone at 4:00 in the morning, appearing much older, and looking for action. Brooks intentionally committed the crime of purchasing the services of a person engaged in prostitution; in the process, he appears to have unknowingly committed the greater offense of lewd and lascivious act on a child. Even though he committed the offense unknowingly, he was properly adjudicated guilty of the greater offense. But in considering the sentence, the trial court determined that the year-and-a-half spent in jail awaiting trial was sufficient punishment to “fit the crime.” We affirm.”

Put simply, the 5th DCA found that because the “totality of the circumstances” demonstrated the victim did not look to be 13 and was readily and willingly engaging in sexual activity, she could be properly characterized as a “willing participant” despite being unable to legally consent.

Judge Thompson of the 5th DCA wrote a dissenting opinion – arguing the majority misapplied Rife to the case. Judge Thompson rejected the idea that a 13-year-old could ever be considered a “willing participant” in sex:

“This case shows why section 921.0016(4)(f), Florida Statutes should not be used for downward departures in cases where consent is not a defense to the crime. It is neither normal nor expected that a thirteen-year-old will become a prostitute unless the economic and social forces in her life impel such a decision. Perhaps her decision results from having been sexually abused or having been an incest victim. 

“The record does not detail this victim’s reasons for becoming a prostitute, but I suggest there must have been severe family dysfunction or other powerful circumstances that made prostitution an acceptable alternative lifestyle. She was a victim when she made that “choice.” In my opinion, she became a victim again at sentencing. A downward departure based upon the fact that the victim is a prostitute ignores the state’s desire to protect children. … I would hold that the consent of a thirteen-year-old cannot be used for a downward departure sentence.”

However, Judge Thompson’s opinion did not win the day. As a result, Brooks remains good law in the 5th DCA.

In sum, State v. Brooks, 739 So.2d 1223 (Fla. 5th DCA 1999) marks a significant development in Florida’s case law on the issue of downward departure sentences in lewd or lascivious cases involving victims 12 or older. The 5th DCA found that:

• The trial judge reasonably concluded that Brooks believed he was soliciting an adult for prostitution
• The 13-year-old victim willingly participated in the sexual encounter 
• Though this fact did not make Brooks any less guilty of the offense, it did serve as a valid basis for the judge to downwardly depart (e.g. not order any prison time for Brooks)
• As a result, his conviction and sentence (or lack thereof) were affirmed

Judge Thompson wrote a dissenting opinion in the case, arguing that a child as young as 13 can never be a willing participant in sex – and that the trauma likely endured by the victim that led to her to “prostitute” herself should override any suggestion she “willingly participated.” But the majority rejected this conclusion.

Florida’s criminal defense community should take note of State v. Brooks, 739 So.2d 1223 (Fla. 5th DCA 1999), as it makes clear Florida’s appellate courts may affirm “surprising” downward departure sentences in cases involving alleged lewd or lascivious offenses.

If someone is charged in a case involving alleged sexual battery by a family member or person in custodial authority, it is critical to seek out experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to hefty fines and prison time. 

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 criminal 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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