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.
What do the words “lewd” or “lascivious” mean?
They 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
What kind of conduct does it comprise?
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
Does there need to be penetration?
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).
Do different states define lewd and lascivious differently?
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.
What are the penalties for a conviction?
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.
Do convictions require 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
Are there any 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.
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 is 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.
Why does the law use two words that mean the same thing?
“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.”
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.
Legal References:
- People v. Lopez, 965 P.2d 713 (1998).
- California Penal Code 288.
- NRS 201.230.
- Florida Statute 800.04.
- California Penal Code 288(i).
- Florida Statute 800.04(5)(b) and 775.082(3)(a)(4).
- California Penal Code 290.
