Lewd and lascivious conduct is defined as a sexual act that is offensive to community standards of decency. In many of the cases I handle, it often allegedly involves a child.
Physical penetration is not necessary for there to be lewd and lascivious conduct. An example is intentionally groping a minor.
Lewd and lascivious conduct is a type of sex crime often charged as a felony sex offense. The penalties depend on the age of the victim and can increase if force is used. A conviction requires registering as a sex offender.
Overview
“Lewd” and “lascivious” both mean an offensive sexual desire.
The word “lewd” means something that is sexually unchaste or lustful. It is synonymous with words like:
- obscene,
- vulgar,
- indecent, and
- lascivious.
The word “lascivious” means something that is sexually arousing or lustful. It is pronounced “luh-SIV-ee-us.” It is also similar to words like:
- prurient,
- pornographic, and
- vulgar
Elements
The term “lewd or lascivious acts” refers to an action that furthers an offensive sexual desire.
Because it is an offensive sexual desire, conduct that is lewd or lascivious battery often involves children. This is considered offensive because children are too young to consent or understand sexual activity. This kind of conduct can also produce psychological trauma in children.
In cases I handle in California, conduct that courts consider “lewd and lascivious acts” includes:
- groping,
- indecent exposure of genitalia,
- sexually touching someone else,
- getting someone else to touch the defendant sexually, or
- convincing or forcing others to touch each other in a sexual manner.
To be lewd and lascivious molestation, the sexual contact has to be intentional or willful. It cannot be accidental.
The conduct also has to be for the purpose of arousing sexual desire. Whether it is actually arousing does not matter.
Example: Caesar coaxes a 5-year-old girl to walk with him by giving her a lollipop. Once they are alone, he rubs her vagina.1
Penetration Not Necessary
Penetration is not required for conduct to be sexual.
Physical penetration tends to turn lewd conduct into a more severe type of crime, like:
- rape,
- sexual assault, or
- sexual battery.
Sexual acts with children that involve penetration are treated even more severely. In California, they are often charged as:
- Statutory rape (California Penal Code 261.5 PC),
- Aggravated sexual assault (California Penal Code 269 PC), or
- Oral copulation with a minor (California Penal Code 287 PC).
State Laws
Yes, each state has its own definition of lewd and lascivious manners. Most states handle the offense in similar ways. However, there might be some differences in the details.
For example, here in California, conduct can only be sexual if:
- the alleged victim is under 14 years of age, or
- the alleged victim is 14 or 15 and the defendant is at least 10 years older.2
Nevada has a Romeo and Juliet law. Sixteen is the age of consent. However, minors aged 14 and 15 may have consensual penetrative sex with people less than four years older than them.3
Some states, like Oregon, do not have a separate statute for lewd conduct. Instead, lewd and lascivious behavior falls under other criminal statutes, like sexual assault.
In Florida, lewd and lascivious conduct includes a host of sexual offenses that involve someone under 16. They include:
- sexual battery,
- encouraging or forcing a minor to commit sexual acts, including bestiality and prostitution,
- child molestation,
- soliciting a minor to touch the defendant in a sexual manner, and
- intentionally masturbating or exposing genitalia in the presence of a minor.4
Example: 20-year-old Mark tells his 15-year-old friend to rub the crotch of his pants. In Nevada, it would be lewd conduct. In California, it would not. It may still be a different crime, though.
Penalties
The penalties for a conviction of lewd and lascivious conduct are severe. They are usually felonies. The precise penalties in these criminal cases depend on:
- the state where the offense was allegedly committed,
- the age of the alleged victim,
- the defendant’s prior criminal background,
- specifics surrounding the alleged acts, and
- whether force was used during the incident.
For example, in California, if the victim was 14 or 15 years old and the defendant was at least 10 years older, the offense is a “wobbler.” It can be charged as a misdemeanor or a felony. It can carry up to a year in jail when charged as a misdemeanor.
However, if the victim was under 14 and the defendant inflicted a serious injury, I have seen judges impose life in prison.5
In Nevada, the penalties are harsher. If the alleged victim was under 14, a conviction carries:
- a prison sentence of life (“life felony”), with the possibility of parole after ten years, and
- a fine of up to $10,000.
In Florida, the penalties largely depend on the precise allegations. Anyone 18 or over can face life in prison for molesting someone under 12.6 For intentionally exposing themselves to a minor, they can face up to:
- 5 years in jail, and/or
- $5,000 in fines.
Mistaken identity is a defense to lewd and lascivious conduct.
Sex Offender Registration
Defendants convicted of lewd conduct generally have to register as a sex offender.
In California, this is required under Megan’s Law. First-time offenders will be required to register for 20 years. Subsequent offenses will require lifetime registration.7
Defenses
Here at Shouse Law Group, I have defended literally thousands of people charged with lascivious and lewd conduct. In my experience, the following defenses have proven very effective with prosecutors, judges, and juries.
- The touching was accidental.
- The defendant had no sexual desire.
- The defendant was a victim of mistaken identity.
- The defendant was falsely accused.
- Law enforcement committed misconduct, including police misconduct such as coercive interrogations, improper forensic interviews, suggestive questioning, or failures to properly collect, preserve, or disclose exculpatory evidence.
For conduct to be sexual, it has to be intentional. If the charge involves physical contact, it cannot be accidental.
Example: Mike stumbles on the stairs. He reaches for the handrail but grabs Michelle’s buttocks.
Without sexual desire, conduct cannot be lascivious or lewd.
Example: Maurice holds his 6-month-old daughter with his hand on her buttocks.
People accused of lewd conduct can argue that it was someone else. I see cases all the time where children confuse one person with another. When they do, they can point the finger at the wrong person.
Example: 5-year-old Chloe says that the mailman groped her, even though it was actually her uncle. Both of the men have the same style of mustache.
Another thing I frequently see is children being coerced into making a false accusation, usually by an angry parent trying to “get back at” the other parent during divorce or child custody proceedings.
Example: Maryanne tells her 7-year-old daughter to say her husband touched her inappropriately during a contentious divorce.
Note that consent is not a defense if the alleged victim was a minor. Minors are under the legal age of consent. Even if they gave consent, the law would disregard it.
Depending on the state and the case, defendants can also be prevented from presenting evidence that the alleged victim was promiscuous. This is because such sensitive information would insinuate consent.
Lewd vs. Lascivious
“Lewd and lascivious” is an example of a redundant synonym.
These phrases came to the U.S. from England. English courts have used them since at least the 1400s. Back then, lawyers spoke English, French, and Latin. Redundant synonyms helped them understand each other. One word was French or Latin – in this case, “lewd.” The other one was English – in this case, “lascivious.”
“Lewd” and “lascivious” mean the same thing.
Frequently Asked Questions
Does lewd and lascivious conduct require skin-to-skin contact?
No. The touching can occur over or under clothing. As long as the physical contact was intentional and done for the purpose of sexual arousal, gratification, or abuse, it can lead to criminal charges.
Can someone be charged with this crime if they didn’t physically touch the victim?
Yes. Under California law, for example, you can be charged if you intentionally convince, coax, or force a minor to sexually touch you or to touch someone else. The law covers causing a child to engage in a lewd act, even if you never directly touched them.
Is lewd and lascivious conduct always a felony in California?
Usually, yes. However, if the victim was 14 or 15 years old and the defendant was at least 10 years older, the crime is considered a “wobbler.” This means prosecutors have the discretion to charge it as either a misdemeanor (which carries up to a year in county jail) or a felony.
Will a conviction mean I have to register as a sex offender?
In California, a conviction for lewd and lascivious conduct requires mandatory sex offender registration under Megan’s Law. Depending on your criminal history and the specifics of the offense, this registration requirement will last for 20 years or for the rest of your life.
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- The Problems with Lewdness in California – Glendale Law Review.
- The Logic of Lewdness – Kingston Law Review.
- Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement – American Criminal Law Review.
- Cyberflashing: Public Indecency in the Digital Age – North Carolina Journal of Law & Technology.
- Lewd or Lascivious Acts with a Child under Fourteen: California’s Extension of Force under Penal Code Section 288 – Criminal Justice Journal.
