Business Law 101 / LEWD AND LASCIVIOUS BEHAVIOR

By Albert Kelley

WARNING: THIS COLUMN DEALS WITH ISSUES OF A MATURE NATURE. 

In the statute on adultery, it states that “if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree”.  However, the statute does not explain what “lewd and lascivious” means. For that we have to look at the caselaw. The Florida Supreme Court, in 1971 stated: “Lewd” and “lascivious” are words in common use, and the definitions indicate with reasonable certainty the character of the acts and conduct which the Legislature intended to prohibit and punish, so that a person of ordinary under-standing may know what conduct on his part is condemned. Lewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity.  It is generally used to indicate gross indecency with respect to the sexual relations.” So while the meaning may not be clear, the Court believes we all understand the concept.

Florida Statute 800.02 specifies that anyone who commits a lascivious act on another commits a second-degree misdemeanor.  It is a sad commentary on society that the legislature had to specify that breastfeeding was not a violation of the statute.  This exception for breastfeeding also appears in the statute that makes exposure of sexual organs a first-degree misdemeanor. Exposure is in violation if it occurs in public, in the private property of another person, or in the persons own property, if it can be seen from a public location.  To be a violation, mere exposure is sufficient. 

When the victim is a minor, the statute is more specific and the penalties are higher.  The statute separates the categories between lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition.  

The statute defines lewd or lascivious battery as any sexual activity with a person between the ages of 12 and 16, or encouraging, forcing or enticing a person under 16 to commit any sexual activity (including sadomasochistic activity, bestiality or prostitution).  This is generally a second-degree felony unless the offender is over 18 and has a prior conviction for a related style offense, in which case it rises to a first-degree felony. 

Lewd or lascivious molestation involves the intentional touching of the breasts, genitals, genital area or buttocks of a person less than 16, or enticing or forcing a person under 16 to touch the offender.  It does not matter if the area is clothed or not. If the offender is over 18 and the victim is under 12, it is deemed a life felony. If the offender is under 18 or the victim is over 12, it is a second-degree felony.  If the offender is under 18 AND the victim is over 12, it is a third-degree felony.  

Lewd or lascivious conduct is when a person touches a victim under 16 in a lewd or lascivious manner or solicits someone under 16 to commit a lewd act.  If the offender is over 18, it is a second-degree felony; if under 18 it is a third-degree felony.

Lewd or lascivious exhibition involves the exposing of the genitals in a lewd manner or committing any sexual act that does not involve actual contact with the victim.  If the offender is over 18, it is a second-degree felony; if under 18 it is a third-degree felony.

This statute also specifically makes breastfeeding an exception to the law.

It is also a violation when an authority figure at a school, engages in a romantic relationship with a student, or sexual conduct or lewd behavior in front of a student. A violation is a second-degree felony.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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