The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 486
INTRODUCER: Senator Bradley
SUBJECT: Solicitation of Minors to Commit Lewd or Lascivious Acts
DATE: March 10, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Parker Stokes CJ Pre-meeting
2. ACJ
3. FP
I. Summary:
SB 486 amends s. 800.04, F.S., to create the crime of lewd or lascivious solicitation. Under the
bill, a person 24 years of age or older who solicits a person who is 16 or 17 years of age in
writing to commit a lewd and lascivious act commits the offense of lewd or lascivious
solicitation, a felony of the third degree,
1
punishable as provided in ss. 775.082, 775.083, or
775.084, F.S.
The bill amends s. 921.0022, F.S., ranking the offense on the offense severity chart of the
Criminal Punishment Code as a level 7 offense.
The bill may have a positive indeterminate fiscal impact. See Section V. Fiscal Impact
Statement.
This bill is effective October 1, 2023.
II. Present Situation:
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 perpetrator.
2
The words “lewd”
and “lascivious” behavior when used in a statute to define an offense has been held to have the
same meaning, that is, an indulgence in lust, eager for sexual indulgence.
3
Florida law currently contains a variety of statutes that prohibit acts relating to lewd or lascivious
offenses.
1
A third degree felony is generally punishable by not more than five years in state prison and a fine not exceeding $5,000.
Sections 775.082, 775.083, and 775.084, F.S.
2
Chesebrough v. State, 255 So.2d 675 (Fla. 1971).
3
Buchanan v. State, 111 So.2d 51 (Fla. 1st DCA 1959).
REVISED: BILL: SB 486 Page 2
Lewd or Lascivious Offenses Targeting Persons Under 16 Years of Age
Section 800.04, F.S., criminalizes various acts targeting persons under 16 years of age,
including: lewd or lascivious battery;
4
lewd or lascivious molestation;
5
lewd or lascivious
conduct;
6
and lewd or lascivious exhibition.
7
Lewd or Lascivious Conduct
A person who intentionally touches a person under 16 years of age in a lewd or lascivious
manner or solicits a person under 16 years of age to commit a lewd or lascivious act commits
lewd or lascivious conduct.
8
An offender who is:
• Eighteen years of age or older who commits lewd or lascivious conduct commits a second
degree felony.
9
• Less than 18 years of age who commits lewd or lascivious conduct commits a third degree
felony.
10
The Florida Standard Jury Instructions for soliciting a person under 16 years of age to commit a
lewd or lascivious act provides that to “solicit” means to command, encourage, hire, or request
another person to engage in specific conduct.
11
Prohibited Computer Usage
Section 847.0135, F.S., in part, prohibits certain solicitation offenses. Specifically, it provides
that it is a third degree felony for any person to knowingly use 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
4
Section 800.04(4), F.S., defines lewd or lascivious battery as engaging in sexual activity with a person 12 years or older but
less than 16 years of age; or encouraging, forcing, or enticing any person less than 16 years of age to engage in
sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity. An offender who commits
lewd or lascivious battery commits a felony of the second degree.
5
Section 800.04(5), F.S., defines lewd or lascivious molestation as a person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or
forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
6
Section 800.04(6), F.S.
7
Section 800.04(7), F.S., defines lewd or lascivious exhibition as a person who intentionally masturbates; intentionally
exposes the genitals in a lewd or lascivious manner; or intentionally commits any 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 in the presence of a victim who is less than 16 years of age, commits lewd or
lascivious exhibition. An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of
the second degree, generally punishable by not more than fifteen years in state prison. An offender less than 18 years of age
who commits a lewd or lascivious exhibition commits a felony of the third degree.
8
Supra, Note 6.
9
A felony of the second degree is generally punishable by a term of imprisonment not exceeding 15 years, as provided in
s. 775.082, s. 775.083, and s. 775.084, F.S.
10
A felony of the third degree is generally punishable by a term of imprisonment not exceeding 5 years, as provided in
s. 775.082, s.775.083, and s.775.084, F.S.
11
Fla. Std. Jury Instr. (Crim.) 11.10(d), Lewd or Lascivious Conduct, s. 800.04(6), F.S. BILL: SB 486 Page 3
entice, a child or another person believed by the person to be a child, to commit any illegal act
described in ch. 794, ch. 800, or ch. 827, F.S., or to otherwise engage in any unlawful sexual
conduct with a child or with another person believed to be a child.
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Unlawful Acts with Persons 16 and 17 Years of Age
Section 794.05, F.S., provides that a person who is 24 years of age or older who engages in
sexual activity with a person 16 or 17 years of age commits a second degree felony.
13
A person
convicted of unlawful sexual activity with a minor must register as a sexual offender under
s. 943.0435, F.S.
“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. Sexual
activity does not include an act done for a bona fide medical purpose.
Evidence of a victim’s prior sexual conduct is not relevant in a prosecution for unlawful sexual
activity with a minor. If an offender’s unlawful sexual activity with a minor directly results in the
victim giving birth to a child, paternity of the child must be determined under ch. 742, F.S., and
the offender must pay child support as provided in ch. 61, F.S.
Criminal Punishment Code
Felony offenses which are subject to the Criminal Punishment Code
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are listed in a single
offense severity ranking chart (OSRC),
15
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.
16,
17
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 current
offense.
18,
19
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.
20
III. Effect of Proposed Changes:
This bill amends s. 800.04, F.S., to create the crime of lewd or lascivious solicitation. Under the
bill, a person 24 years of age or older who solicits a person who is 16 or 17 years of age in
12
Section 847.0135(3), F.S., A person misrepresenting his or her age commits a second degree felony.
13
Section 794.05, F.S.
14
All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the
Criminal Punishment Code.
15
Section 921.0022, F.S.
16
Section 921.0022(2) and (3)(e), F.S.
17
Felony offenses that are not listed in the OSCR 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. Section 921.0023, F.S.
18
Sections 921.0022 and 921.0024, F.S.
19
A person may also accumulate points for factors such as victim injury points, community sanction violation points, and
certain sentencing multipliers. Section 921.0024(2), F.S.
20
If a person scores more than 44 points or fewer, 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. Id. BILL: SB 486 Page 4
writing to commit a lewd and lascivious act commits the offense of lewd or lascivious
solicitation, a felony of the third degree,
21
punishable as provided in ss. 775.082, 775.083, or
775.084, F.S.
The bill amends s. 921.0022, F.S., ranking the offense on the offense severity chart of the
Criminal Punishment Code as a level 7 offense.
A person convicted of committing this offense of lewd or lascivious solicitation under s. 800.04,
F.S., would be required to register as a sex offender with the Florida Department of Law
Enforcement.
22
All offenses under s. 800.04, F.S., are registerable under sexual offender
registration laws, so a person with a conviction or withhold of adjudication for this offense will
be subject to lifetime sexual offender registration under s. 943.0435, F.S.
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The bill is effective October 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
21
A third degree felony is generally punishable by not more than five years in state prison and a fine not exceeding $5,000.
Sections 775.082, 775.083, and 775.084, F.S.
22
Section 943.0435, F.S., defines a “sexual offender” as an individual who is convicted of a qualifying offense in Florida or
another jurisdiction. Qualifying adult convictions include but not limited to offenses under s. 794.05 and s. 800.04, F.S.
23
Florida Department of Law Enforcement, 2023 FDLE Legislative Bill Analysis SB 486 (February 17, 2023), at 2 (on file
with Senate Committee on Criminal Justice). BILL: SB 486 Page 5
B. Private Sector Impact:
None.
C. Government Sector Impact:
This bill may have a positive indeterminate fiscal impact. In FY 18-19, the incarceration
rate for a Level 7, 3rd degree felony was 48.2 percent, and in FY 19-20 the incarceration
rate was 42.0 percent. In FY 20-21, the incarceration rate for a Level 7, 3rd degree felony
was 38.3 percent, and in FY 21-22 the incarceration rate was 44.5 percent.
Section 847.0135, F.S., has multiple felonies that share similarities with the language
added by this bill. A Level 6, 3rd degree felony exists for a person who uses a computer
to facilitate sexual conduct of or with a minor, or the visual depiction of such conduct.
This does not state an age for the offender, nor does it state an age for the minor, other
than the person would be under 18 years of age. A Level 7, 3rd degree felony exists for
the solicitation of a child, via a computer service, to commit an unlawful sex act. This
also does not provide an age range for the offender or the minor. Finally, there is a
Level 5, 2nd degree felony for lewd or lascivious exhibition using a computer, where the
offender is 18 years or older, and the minor is less than 16 years old. None of these three
felonies fit the specified age ranges, nor does the language under current statute specify
different ways an offender might contact a minor through writing, but the number of new
commitments for these offenses could provide supplemental information on the potential
number of offenders.
Per Department of Corrections, in FY 18-19, there were 49 new commitments for the
felonies described above, and there were 32 new commitments in FY 19-20. In FY 20-21,
there were 18 new commitments, and in FY 21-22, there were 31 new commitments. It is
not known how the offender pool might be expanded, or how prison admissions might be
impacted by this new language.
This bill increases the number of people who will be required to register as sexual
offenders and predators in Florida, which increases the volume of in-person registration
at sheriffs’ offices and address verifications required of law enforcement around Florida
and will have an indeterminate financial impact.
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VI. Technical Deficiencies:
Section 800.04, F.S., relates to lewd or lascivious offenses committed upon or in the presence of
persons less than 16 years of age, while the conduct addressed in the bill relates to persons 16 or
17 years of age.
VII. Related Issues:
None.
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Id. BILL: SB 486 Page 6
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 800.04 and
921.0022.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.