This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0431a.CRJ
DATE: 3/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 431 Solicitation of Minors to Commit Lewd or Lascivious Acts
SPONSOR(S): Criminal Justice Subcommittee, Baker and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 486
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 18 Y, 0 N, As CS 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
written solicitation of such minors to commit lewd or lascivious acts if the solicitation does not occur
electronically.
CS/HB 431 creates s. 794.053, 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. The newly-
created offense will capture written solicitation regardless of the medium used. The bill ranks the new third-
degree felony as a level 3 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.
The bill provides an effective date of October 1, 2023. STORAGE NAME: h0431a.CRJ PAGE: 2
DATE: 3/29/2023
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, 2
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.
3
Lewd or Lascivious Battery
A person commits lewd and lascivious battery by:
Engaging in sexual activity
4
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.
5
Lewd or lascivious battery is generally a second-degree felony,
6
unless the offender is 18 years of age
or older and was previously convicted of lewd or lascivious battery or another specified offense,
7
in
which case the offense is reclassified as a first-degree felony.
8, 9
Lewd or Lascivious Molestation
A person commits lewd or lascivious molestation by:
1
Chesebrough v. State, 255 So.2d 675, 677 (Fla. 1971).
2
Whether an act or conduct is lewd or lascivious is a factual issue to be decided on a case-by-case basis. Andrews v. State, 130 So.
3d 788, 790 (Fla. 1st DCA 2014).
3
S. 800.04(2-3), F.S.
4
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.
5
S. 800.04(4)(a), F.S.
6
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.
7
Other offenses include a violation of: ss. 787.01(2) or 787.02(2), F.S., when victim 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.
8
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.
9
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). STORAGE NAME: h0431a.CRJ PAGE: 3
DATE: 3/29/2023
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.
10
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.
11, 12
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.
13
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.
14
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.
15, 16
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
17
the offense is a first-degree felony.
18
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.
19
Lewd or lascivious conduct is a second-degree felony if the offender is 18 years of age or older
20
and a
third-degree felony if the offender is younger than 18 years of age.
21, 22
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.
23
Lewd or lascivious exhibition is a second-degree felony if the offender is 18 years of age or older
24
or a
third-degree felony if the offender is less than 18 years of age.
25, 26
10
S. 800.04(5)(a), F.S.
11
A life felony is punishable by life imprisonment and a $15,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
12
Ranked as a level 9 offense on the OSRC.
13
Ranked as a level 7 offense on the OSRC.
14
Ranked as a level 7 offense on the OSRC.
15
A third-degree felony is punishable by up to five years’ imprisonment and a $5,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
16
Ranked as a level 6 offense on the OSRC.
17
Other offenses include a violation of: ss. 787.01(2) or 787.02(2), F.S., when victim 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.
18
Ranked as a level 7 offense on the OSRC.
19
S. 800.04(6)(a), F.S.
20
Ranked as a level 6 offense on the OSRC.
21
S. 800.04(6)(b)–(c), F.S.
22
Ranked as a level 5 offense on the OSRC.
23
S. 800.04(7)(a), F.S.
24
Ranked as a level 5 offense on the OSRC.
25
S. 800.04(7)(b)–(c), F.S.
26
Ranked as a level 4 offense on the OSRC. STORAGE NAME: h0431a.CRJ PAGE: 4
DATE: 3/29/2023
Unlawful Sexual Activity with a Minor
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.
27
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.
28
Evidence of a victim’s prior sexual conduct is not relevant in a prosecution for
unlawful sexual activity with a minor.
29, 30
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.
31, 32
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 written
solicitation of such minors to commit lewd or lascivious acts if the solicitation does not occur
electronically.
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.
33
“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
34
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
35
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.
36
27
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.
28
S. 794.05(2)(b), F.S.
29
S. 794.05(4), F.S.
30
Ranked as a level 6 offense on the OSRC.
31
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.
32
Ranked as a level 4 offense on the OSRC.
33
This offense is not ranked on the OSRC, and as such, is ranked a level 4 offense by default. S. 921.0023, F.S.
34
“Child” means any person, whose identity is known or unknown, younger than 18 years of age. S. 847.001(10), F.S.
35
“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.
36
Ranked as a level 7 offense on the OSRC. STORAGE NAME: h0431a.CRJ PAGE: 5
DATE: 3/29/2023
Criminal Punishment Code
Felony offenses which are subject to the Criminal Punishment Code
37
are listed in a single offense
severity ranking chart (OSRC),
38
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.
39, 40
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.
41, 42
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.
43
Effect of Proposed Changes
CS/HB 431 creates s. 794.053, 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. The newly-created offense will capture written solicitation regardless of the medium used.
The bill ranks the new third-degree felony as a level 3 offense on the OSRC.
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 794.053, F.S., relating to lewd or lascivious written solicitation of certain minors.
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:
1. Revenues:
None.
37
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.
38
S. 921.0022, F.S.
39
S. 921.0022(2), F.S.
40
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.
41
Ss. 921.0022 and 921.0024, F.S.
42
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.
43
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: h0431a.CRJ PAGE: 6
DATE: 3/29/2023
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.
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
On March 29, 2023, the Criminal Justice Subcommittee adopted a strike-all amendment and reported the
bill favorably as a committee substitute. The amendment:
Moved the new offense from ch. 800 (lewd and lascivious) to ch. 794 (sexual battery), F.S., where
other similar offenses are located;
Lowered the offense level of the new offense from a level 7 to a level 3 on the OSRC; and
Removed the requirement for a person convicted of the new offense to register as a sexual
offender.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.