This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0431.CRJ
DATE: 3/27/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 431 Solicitation of Minors to Commit Lewd or Lascivious Acts
SPONSOR(S): Baker and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 486
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee Leshko Hall
2) Justice Appropriations Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
The Florida Supreme Court has held that the terms "lewd" and "lascivious" mean a wicked, lustful, unchaste,
licentious, or sensual intent on the part of the person doing an act. Section 800.04, F.S., criminalizes the
following lewd or lascivious offenses committed on or in the presence of a person less than 16 years of age:
lewd or lascivious battery; lewd or lascivious molestation; lewd or lascivious conduct; and lewd or lascivious
exhibition.
Under s. 847.0135(3), F.S., a person commits a third-degree felony if he or she knowingly uses a computer
online service, internet service, local bulletin board service, or any other device capable of electronic data
storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or
another person believed by the offender to be a child, to commit any illegal act described in chapter 794
(sexual battery), chapter 800 (lewdness/indecent exposure), or chapter 827 (abuse of children) or to otherwise
engage in any unlawful sexual conduct with a child or with another person believed by the offender to be a
child.
Section 794.05, F.S., prohibits a person who is 24 years of age or older from engaging in sexual activity with a
victim who is 16 or 17 years old, as a second-degree felony. Sexual activity means the oral, anal, or female
genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of
another by any other object, but does not include an act done for a bona fide medical purpose.
Similarly, s. 794.051, F.S., prohibits a person who is 24 years of age or older from intentionally touching in a
lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a
person 16 or 17 years of age, or forcing or enticing a person 16 or 17 years of age to so touch the perpetrator,
as a third-degree felony. While a person 24 years of age or older is prohibited from engaging in sexual activity
or other lewd or lascivious conduct with a 16 or 17-year-old, current law does not similarly criminalize the
solicitation of such minors to commit lewd or lascivious acts.
HB 431 amends s. 800.04, F.S., to prohibit a person 24 years of age or older from soliciting a person who is 16
or 17 years of age in writing to commit a lewd or lascivious act as a third-degree felony. A person convicted for
the new offense under s. 800.04, F.S., will be required to register as a sexual offender. The bill ranks the new
third-degree felony as a level 7 offense on the Criminal Punishment Code offense severity ranking chart.
The bill may have an indeterminate positive impact on jail and prison beds by creating a new felony offense for
certain offenders who solicit certain minors in writing, which may result in more jail and prison admissions.
Additionally, the bill may have an indeterminate negative fiscal impact on local and state government due to an
increase in workload and technology system updates required to comply with the bill.
The bill provides an effective date of October 1, 2023. STORAGE NAME: h0431.CRJ PAGE: 2
DATE: 3/27/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Lewd and Lascivious Offenses
The Florida Supreme Court has held that the terms "lewd" and "lascivious" mean a wicked, lustful,
unchaste, licentious, or sensual intent on the part of the person doing an act.
1
Section 800.04, F.S.,
criminalizes the following lewd or lascivious offenses committed on or in the presence of a person less
than 16 years of age:
Lewd or lascivious battery;
Lewd or lascivious molestation;
Lewd or lascivious conduct; and
Lewd or lascivious exhibition.
Neither the victim’s lack of chastity nor the victim’s consent is a defense to lewd or lascivious offenses.
Additionally, the perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her
age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense.
2
Lewd or Lascivious Battery
A person commits lewd and lascivious battery by:
Engaging in sexual activity
3
with a person 12 years of age or older but younger than 16; or
Encouraging, forcing, or enticing any person under 16 to engage in:
o Sadomasochistic abuse;
o Sexual bestiality;
o Prostitution; or
o Any other act involving sexual activity.
4
Lewd or lascivious battery is generally a second-degree felony,
5
unless the offender is 18 years of age
or older and was previously convicted of lewd or lascivious battery or another specified offense,
6
in
which case the offense is reclassified as a first-degree felony.
7, 8
Lewd or Lascivious Molestation
A person commits lewd or lascivious molestation by:
Intentionally touching in a lewd or lascivious manner the breasts, genitals, genital area, or
buttocks, or the clothing covering them, of a person under 16; or
Forcing or enticing a person under 16 to so touch the perpetrator.
9
1
Chesebrough v. State, 255 So.2d 675, 677 (Fla. 1971).
2
S. 800.04(2-3), F.S.
3
Sexual activity means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female
genital penetration of another by any other object. S. 800.04(1)(d), F.S.
4
S. 800.04(4)(a), F.S.
5
S. 800.04(4)(b), F.S.; A second-degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Ss. 775.082,
775.083, or 775.084, F.S.
6
Other offenses include a violation of: ss. 787.01(2) or 787.02(2), F.S., when victim who was a minor and, in the course of committing
that violation, the defendant committed sexual battery under ch. 794, F.S., or a lewd act under ss. 800.04 or 847.0135(5), F.S.; s.
787.01(3)(a)2. or 3., F.S.; s. 787.02(3)(a)2. or 3., F.S.; ch. 794, F.S., excluding s. 794.011(10), F.S.; s. 825.1025, F.S.; or s.
847.0135(5), F.S.
7
S. 800.04(4)(c), F.S.; A first-degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Ss. 775.082, 775.083, or
775.084, F.S.
8
Both a second-degree and first-degree felony lewd or lascivious battery are ranked as a level 8 offense on the Criminal Punishment
Code’s offense severity ranking chart (OSRC).
9
S. 800.04(5)(a), F.S. STORAGE NAME: h0431.CRJ PAGE: 3
DATE: 3/27/2023
The penalty for lewd or lascivious molestation varies depending on the offender’s age, the victim’s age,
and the circumstances surrounding the commission of the offense:
If the offender is 18 years of age or older and the victim is less than 12 years of age it is a life
felony.
10, 11
If offender is less than 18 years of age and the victim is less than 12 years of age it is a second-
degree felony.
12
If the offender is 18 years or age or older and the victim is 12 years of age or older but less than
16 years of age it is a second-degree felony.
13
If the offender is less than 18 years of age and the victim is 12 years of age or older but less
than 16 years of age it is a third-degree felony.
14, 15
If the offender is 18 years of age or older and the victim is 12 years of or older but less than 16
years of age and the offender has previously been convicted of lewd or lascivious molestation or
another specified offense
16
the offense is a first-degree felony.
17
Lewd or Lascivious Conduct
A person commits lewd or lascivious conduct by:
Intentionally touching a person under 16 in a lewd or lascivious manner; or
Soliciting a person under 16 to commit a lewd or lascivious act.
18
Lewd or lascivious conduct is a second-degree felony if the offender is 18 years of age or older
19
and a
third-degree felony if the offender is younger than 18 years of age.
20, 21
Lewd or Lascivious Exhibition
A person commits lewd or lascivious exhibition by performing any of the following acts in the presence
of a person under 16:
Intentionally masturbating;
Intentionally exposing the genitals in a lewd or lascivious manner;
Intentionally committing any other sexual act that does not involve actual physical or sexual
contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or
the simulation of any act involving sexual activity.
22
Lewd or lascivious exhibition is a second-degree felony if the offender is 18 years of age or older
23
or a
third-degree felony if the offender is less than 18 years of age.
24, 25
Unlawful Sexual Activity with a Minor
10
A life felony is punishable by life imprisonment and a $15,000 fine. Ss. 775.082, 775.083, and 775.084, F.S.
11
Ranked as a level 9 offense on the OSRC.
12
Ranked as a level 7 offense on the OSRC.
13
Ranked as a level 7 offense on the OSRC.
14
A third-degree felony is punishable by up to five years’ imprisonment and a $5,000 fine. Ss. 775.082, 775.083, and 775.084, F.S.
15
Ranked as a level 6 offense on the OSRC.
16
Other offenses include a violation of: ss. 787.01(2) or 787.02(2), F.S., when victim who was a minor and, in the course of committing
that violation, the defendant committed sexual battery under ch. 794, F.S., or a lewd act under ss. 800.04 or 847.0135(5), F.S.; s.
787.01(3)(a)2. or 3., F.S.; s. 787.02(3)(a)2. or 3., F.S.; ch. 794, F.S., excluding s. 794.011(10), F.S.; s. 825.1025, F.S.; or s.
847.0135(5), F.S.
17
Ranked as a level 7 offense on the OSRC.
18
S. 800.04(6)(a), F.S.
19
Ranked as a level 6 offense on the OSRC.
20
S. 800.04(6)(b)–(c), F.S.
21
Ranked as a level 5 offense on the OSRC.
22
S. 800.04(7)(a), F.S.
23
Ranked as a level 5 offense on the OSRC.
24
S. 800.04(7)(b)–(c), F.S.
25
Ranked as a level 4 offense on the OSRC. STORAGE NAME: h0431.CRJ PAGE: 4
DATE: 3/27/2023
Section 794.05, F.S., prohibits a person who is 24 years of age or older from engaging in sexual activity
with a victim who is 16 or 17 years old, as a second-degree felony.
26
Sexual activity means the oral,
anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female
genital penetration of another by any other object, but does not include an act done for a bona fide
medical purpose.
27
Evidence of a victim’s prior sexual conduct is not relevant in a prosecution for
unlawful sexual activity with a minor.
28, 29
Indecent, Lewd, or Lascivious Touching of Certain Minors
Section 794.051, F.S., prohibits a person who is 24 years of age or older from intentionally touching in
a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering
them, of a person 16 or 17 years of age, or forcing or enticing a person 16 or 17 years of age to so
touch the perpetrator, as a third-degree felony.
30, 31
While a person 24 years of age or older is prohibited from engaging in sexual activity or other lewd or
lascivious conduct with a 16 or 17-year-old, current law does not similarly criminalize the solicitation of
such minors to commit lewd or lascivious acts.
Offenses Against Students by Authority Figures
Under s. 800.101, F.S., a person commits a second-degree felony if he or she is an authority figure and
solicits or engages in sexual conduct, a relationship of a romantic nature, or lewd conduct with a
student.
32
“Authority figure” means a person 18 years of age or older who is employed by, volunteering
at, or under contract with a school, including school resource officers as provided in s. 1006.12, F.S.
Prohibited Computer Usage
Under s. 847.0135(3), F.S., a person commits a third-degree felony if he or she knowingly uses a
computer online service, internet service, local bulletin board service, or any other device capable of
electronic data storage or transmission to:
Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child
33
or another
person believed by the offender to be a child, to commit any illegal act described in chapter 794
(sexual battery), chapter 800 (lewdness/indecent exposure), or chapter 827 (abuse of children)
or to otherwise engage in any unlawful sexual conduct
34
with a child or with another person
believed by the offender to be a child; or
Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian
of a child or a person believed by the offender to be the same, to consent to such child’s
participation in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise
engage in any sexual conduct.
35
Florida Sexual Offender Registration
Under Florida law, a person is a sexual offender if:
26
However, a person 16 or 17 years of age who has been emancipated under ch. 743, F.S., is not considered a victim of an offense
under s. 794.05, F.S.
27
S. 794.05(2)(b), F.S.
28
S. 794.05(4), F.S.
29
Ranked as a level 6 offense on the OSRC.
30
However, a person 16 or 17 years of age who has been emancipated under ch. 743, F.S., is not considered a victim of an offense
under s. 794.051, F.S.
31
Ranked as a level 4 offense on the OSRC.
32
This offense is not ranked on the OSRC, and as such, is ranked a level 4 offense by default.; S. 921.0023, F.S.
33
“Child” means any person, whose identity is known or unknown, younger than 18 years of age. S. 847.001(10), F.S.
34
“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or
sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed
genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s
breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” S. 847.001(19), F.S.
35
Ranked as a level 7 offense on the OSRC. STORAGE NAME: h0431.CRJ PAGE: 5
DATE: 3/27/2023
He or she is convicted of a qualifying offense and was released on or after October 1, 1997,
from the criminal sanction resulting from a qualifying conviction;
36
Establishes or maintains a residence in Florida and has not been designated a sexual predator
by a court of this state but has been designated a sexual predator, sexually violent predator, or
another sexual offender designation in another state or jurisdiction, if such designation subjects
or would subject him or her to registration or public notification in that state or jurisdiction;
37
Establishes or maintains a residence in this state and is in the custody or control of, or under
the supervision of, any other state or jurisdiction as a result of a qualifying conviction;
38
or
Has been adjudicated delinquent on or after July 1, 2007, for a qualifying offense, if the juvenile
was at least 14 years old at the time he or she committed the offense.
39
A conviction for lewd or lascivious battery, molestation, conduct, or exhibition under s. 800.04, F.S., and
unlawful sexual activity with certain minors under s. 794.05, F.S., requires a person to be designated as
a sexual offender.
40
Sexual Offender Registration Requirements
All sexual offenders are required to comply with a number of statutory registration requirements. A
sexual offender must report in person to the sheriff’s office to register within 48 hours of:
Establishing a permanent, temporary, or transient residence in Florida; or
Being released from the custody, control, or supervision of DOC or from the custody of a private
correctional facility.
41
Additionally, within 48 hours of registration, a sexual offender who is not incarcerated and resides in the
community must register in person at a driver license office of the Department of Highway Safety and
Motor Vehicles and: secure or renew a Florida driver license, or secure an identification card, if
otherwise qualified; identify himself or herself as a sexual offender; provide his or her permanent,
temporary, or transient residence; and submit to a photograph.
42
During his or her initial registration, a sexual offender must provide specified information such as his or
her name, date of birth, social security number, race, sex, height and weight, vehicle information,
addresses, and places of employment.
43
A sexual offender must also report in person to reregister at
specified intervals,
44
and must update, within 48 hours, specified changes in information such as his or
her address, name, vehicles owned, travel information, and internet identifiers.
45
Generally, failing to comply with sexual offender registration requirements is a third-degree felony.
46, 47
Criminal Punishment Code
36
S. 943.0435(1)(h)1.a.(II), F.S. A sanction imposed in this state or in any other jurisdiction includes, but is not limited to: a fine;
probation; community control; parole; conditional release; control release; or incarceration in a state prison, federal prison, private
correctional facility, or local detention facility.
37
S. 934.0435(1)(h)1.b., F.S.
38
S. 934.0435(1)(h)1.c., F.S.
39
S. 934.0435(1)(h)1.d., F.S.
40
Other qualifying convictions include: sexual misconduct with an individual with a developmental disability; sexual misconduct with a
mental health patient by an employee; kidnapping or false imprisonment, where the victim is a minor and there is a sexual component
to the crime; luring or enticing a child, with a prior sexual conviction; human trafficking; sexual battery; video voyeurism with a prior
video voyeurism conviction; lewd or lascivious offense on an elderly person; sexual performance by a child; providing obscene
materials to a minor; computer pornography involving minors; soliciting a minor over the Internet; traveling to meet minors; lewd or
lascivious exhibition over the Internet; transmission of child pornography by electronic device or equipment; transmission of material
harmful to minors; selling or buying minors to engage in sexually explicit conduct; racketeering involving at least one sexual offense;
sexual misconduct with a forensic client; and sexual misconduct by an employee on a juvenile offender. S. 943.0435(1)(h)1.a.(I), F.S.
41
S. 943.0435(2)(a)1., F.S.
42
S. 775.21(6)(f)1., F.S.
43
Ss. 775.21(6)(a) and 943.0435(2)(b), F.S.
44
Ss. 775.21(6)(g)2.a., 775.21(8)(a), 943.0435(4)(b)2., and 943.0435(14), F.S.
45
Ss. 943.0435(4)(e) and 775.21(6), F.S.
46
Ss. 775.082 and 775.083, F.S.
47
Ss. 775.21(10) and 943.0435(9)(a), F.S.; but see, ss. 775.21(6)(f)3., 775.21(6)(j), 943.0435(4)(c), and 943.0435(8), F.S. (providing
for circumstances in which failure to comply with registration requirements is a second-degree felony). STORAGE NAME: h0431.CRJ PAGE: 6
DATE: 3/27/2023
Felony offenses which are subject to the Criminal Punishment Code
48
are listed in a single offense
severity ranking chart (OSRC),
49
which uses 10 offense levels to rank felonies from least severe to
most severe. Each felony offense listed in the OSRC is assigned a level according to the severity of the
offense.
50, 51
A person’s primary offense, any other current offenses, and prior convictions are scored
using the points designated for the offense severity level of each offense.
52, 53
The final score
calculation, following the scoresheet formula, determines the lowest permissible sentence that a trial
court may impose, absent a valid reason for departure.
54
Effect of Proposed Changes
HB 431 amends s. 800.04, F.S., to prohibit a person 24 years of age or older from soliciting a person
who is 16 or 17 years of age in writing to commit a lewd or lascivious act as a third-degree felony. A
conviction for the new offense under s. 800.04, F.S., will require the offender to register as a sexual
offender.
The bill ranks the new third-degree felony as a level 7 offense on the CPC OSRC.
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 800.04, F.S., relating to lewd or lascivious offenses committed upon or in the
presence of persons less than 16 years of age.
Section 2: Amends s. 921.0022, F.S., relating to Criminal Punishment Code; offense severity ranking
chart.
Section 3: Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
48
All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the Criminal
Punishment Code. S. 921.002, F.S.
49
S. 921.0022, F.S.
50
S. 921.0022(2), F.S.
51
Felony offenses that are not listed in the OSRC default to statutorily assigned levels, as follows: an unlisted third-degree felony
defaults to a level 1; an unlisted second-degree felony defaults to a level 4; an unlisted first-degree felony defaults to a level 7; an
unlisted first-degree felony punishable by life defaults to a level 9; and an unlisted life felony defaults to a level 10. S. 921.0023, F.S.
52
Ss. 921.0022 and 921.0024, F.S.
53
A person may also accumulate points for factors such as victim injury points, community sanction violation points, and certain
sentencing multipliers. S. 921.0024(1), F.S.
54
If a person scores more than 44 points, the lowest permissible sentence is a specified term of months in state prison, determined by
a formula. If a person scores 44 points or fewer, the court may impose a nonprison sanction, such as a county jail sentence, probation,
or community control. S. 921.0024(2), F.S. STORAGE NAME: h0431.CRJ PAGE: 7
DATE: 3/27/2023
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have an indeterminate positive impact on jail and prison beds by creating a new felony
offense for certain offenders who solicit certain minors in writing, which may result in more jail and prison
admissions.
Additionally, the bill may have an indeterminate negative fiscal impact on sheriff’s offices as it may
increase their workload due to an increase in the number of sexual offender registrations and based on
the time and resources it will require to review certain out-of-state convictions.
55
Additionally, the bill
may have a negative fiscal impact on the Florida Department of Law Enforcement as it may require
updates to the agency’s technology systems. The estimated time to complete the changes required is
approximately 16 hours with an estimated cost of $1,360.
56
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
55
The Florida Department of Law Enforcement (FDLE) reports that it will need to review approximately 368 records associated with out-
of-state convictions to determine if any of those offenders may now be required to register in Florida as a sexual offender or sexual
predator.
56
FDLE, HB 431 2023 Legislative Bill Analysis, pp. 3-4 (2023)(on file with the House Criminal Justice Subcommittee).