Lewd or Lascivious Exhibition in the Presence of a Child - Florida Statute 800.04(7)(a)
This crime prohibits anyone from masturbating, exposing their genitals in a lewd or lascivious manner, sadomasochistic abuse, bestiality, or the simulation of any act involving sexual activity in front of a child younger than 16.What the Prosecutor Has to Prove to Convict You of This Crime
The prosecutor must prove beyond a reasonable doubt:
(1) The victim was younger than 16;
(2) The defendant either:
- Intentionally masturbated;
- Intentionally exposed his genitals in a lewd or lascivious manner; or
- Committed without touching the victim a sexual act, sadomasochistic abuse, bestiality, simulation of any act involving sexual activity; and
(3) The defendant did this in the presence of the victim; and
(4) At the time, the defendant either was:
- 18 years or older; or
- Younger than 18.
The statute specifically forbids the defense attorney from raising a defense in regards to the victim’s chastity, the victim’s consent, or whether the victim lied about her age.
One defense that is available is that the defendant did not have the intent to commit the acts in a lewd and lascivious manner. The defendant might have had other reasons for his actions. Police sometimes arrest individuals under this statute when the individuals are peeing and a child sees them. The only problem with that is a person peeing and a person showing off their genitals in a lewd and lascivious manner are two different things. One did not have the intent required under the statute while the other one did.
The facts of the case determine the defenses. Was the person really masturbating or was he adjusting himself in uncomfortable underwear? Sometimes people are overly sensitive to people and call the police. Other times they might honestly see something incorrectly and call the police.
Even if the person was doing some act, the facts of the case might fall outside of this statute. For example, the facts of the case in Lowe v. State were just right that the defendant’s simulation of oral sex on a dildo in front of a child was not considered lewd and lascivious by the court. This is why anyone with these types of cases should sit down with one of our attorneys and go over the facts of the case carefully.Punishment
The punishment depends on the age of the parties. If the defendant is 18 or older, the crime is a second-degree felony punishable up to 15 years in prison and a $10,000 fine. The crime is ranked as level 5 under the Florida Criminal Punishment Code.
If the defendant is under 18, the crime is ranked as a level 4 under the Florida Criminal Punishment Code, and is a third-degree felony punishable up to 5 years in prison and a $5,000 fine.Other Consequences
Anyone convicted of this crime will be required to register as a sexual predator under Florida Statute 775.21. The Florida Department of Law Enforcement will list the defendant on a registry for the public to view. Employers will be able to see your conviction and you won’t be able to expunge it.Contact the Law Office of Roger P. Foley, P.A.
There are critical facts surrounding these cases. We want to hear your side of the story and what happened so our attorneys can get a complete picture. We want to find out as much as you know so we can put together a defense for your case. We will take depositions of the individuals involved to find out if anyone else saw anything. We will look for problems with the state’s case; conflict of evidence, lack of evidence, credibility of witnesses and formulate the best defense for you.