Lewd or lascivious molestation of an elderly person or disabled person - Florida Statute 825.1025(3)

sex offenses

The previous crime dealt with acts that were more sexual in nature while this crime deals with touching or fondling the breasts, genitals, genital area, or buttocks, or the clothing covering them of an elderly person or a disabled person.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The victim was an elderly or a disabled person;

(2) The defendant committed lewd and lascivious molestation of victim by intentionally touching in a lewd and lascivious manner his or her breasts, genitals, genital area, buttocks, clothing covering his or her breasts, genitals, genital area, or buttocks; and

(3) The defendant knew or reasonably should have known that the victim lacked the capacity to consent or failed to give consent.

Punishment

This crime is ranked as level 6 under the Florida Criminal Punishment Code. This crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine.

Florida Statute 825.1025(4) - Lewd or lascivious exhibition in the presence of an elderly person or disabled person

The previous lewd or lascivious battery and molestation dealt with touching. Exhibition is entirely visual which one judge described it as “visual assault.”

Lew and lascivious exhibition happens when the defendant:

  • Intentionally masturbates;

· Intentionally exposes his or her genitals in a lewd or lascivious manner; or

· Intentionally commits any other lewd or lascivious act in front of the elderly person without touching them.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The victim was an elderly or a disabled person;

(2) The defendant committed lewd and lascivious exhibition to the victim by intentionally masturbating, intentionally exposing his or her genitals in a lascivious manner committing any other lewd or lascivious act not involving physical or sexual contact with the victim including but not limited to sadomasochistic abuse, sexual bestiality, or simulated any act involving sexual activity; and

(3) The defendant knew or reasonably should have known that the victim lacked the capacity to consent or failed to give consent.

Punishment

This crime is ranked as level 5 under the Florida Criminal Punishment Code. This crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine.

Defense

There are some situations where a person can be wrongfully charged with this crime. For instance, an elderly person who has mental problems could falsely report being molested by a family member. Someone could have planted the “molestation idea” in the alleged victim’s head (the police, the nurse, and other family members) or maybe the alleged victim was watching a TV show that gave them the idea. You could also have an over-zealous person reporting the crime of what they think they heard or saw. They filled in the “gaps” with what they thought happened and reported this crime.

Sometimes the “victim” might have alleged the same thing before with a different person. For example, in a sexual abuse of a minor case, the court stated that the criminal defense attorney was allowed to ask questions to the victim in regards to previous sexual assaults because:

[T]he jury must know of any improper motives of a prosecuting witness in determining that witness' credibility. That is particularly true in the case of allegations of sexual abuse where there is no independent evidence of the abuse and the defendant's sole defense is either fabrication or mistake on the part of the alleged victims. . . . It may be that the prior accusations will cast doubt on the current one by, for example, being remarkably similar in content, or made against a person similar to the defendant.

Fehringer v. State , 976 So. 2d 1218, 1221-22 (Fla. 4th DCA 2008).

These situations sometimes happen in family settings. A bitter or disgruntled family member could seek to try and cause the other person trouble. For example, a mother-in-law could tell police her son-in-law was molesting the disabled person.

Dangerous Sexual Felony Offender

Anyone who is convicted under this section can have a harsh minimum mandatory sentence applied to them under Florida Statute 794.0115 if:

(1) The defendant was 18 years of age or older at the time of the commission of the offense; and

(2) The defendant either:

a. Caused serious personal injury to the victim as a result of the commission of the offense;

b. Used or threatened to use a deadly weapon during the commission of the offense;

c. Victimized more than one person during the course of the criminal episode applicable to the offense;

d. Committed the offense while under the jurisdiction of a court for a felony offense under the laws of this state, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state; or

e. Had been previous convicted of one of the felonies listed above and the date of the offense in the prior conviction was before the commission of this offense.

A conviction with one of these extra facts after October 1, 2014, will result in a 50 year minimum mandatory prison sentence.

Other Consequences

Florida Statute 943.0435 says that anyone who is convicted of this crime will be designated a sexual offender. Sexual offenders have multiple requirements for initially reporting their personal information as well as continually updating that information if there are any changes. Also, anyone who is labeled a sexual offender will be listed on the Florida Department of Law Enforcement’s website as a sexual offender for anyone of the public to search.

If finding a job was hard enough in this economy, it will be much harder now because this conviction will show up on your background check. Florida Statute 943.0585 says your criminal record cannot be expunged.

Contact The Law Office of Roger P. Foley, P.A.

If you are being charged with this crime, call our law offices to schedule a free consultation. We want to talk to you about what you observed about the event. 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 fight your case all the way, if necessary.

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