Lewd and Lascivious Conduct With a Child
UPDATED: June 19, 2018
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Lewd and lascivious conduct with a child is when a defendant engages in sexual contact with a child with the intent to arouse or gratify his sexual desires (or those of a third party). It is usually charged as one or two felony grades lower than a completed sexual assault of a child, but carries many of the same consequences as a sexual battery conviction. Read on to learn more about what conduct can result in a lewd and lascivious conduct with a child conviction, what defenses are available, and the potential penalties.
What is Lewd and Lascivious Conduct With a Child?
Lewd and lascivious conduct with a child is more serious than an indecent exposure charge, but less serious than a felony sexual assault of a child. The conduct for a lewdness charge involves more than the mere exposure of genitalia, but tends to fall short of full sexual intercourse. Before lewd and lascivious conduct statutes were passed, the same conduct would have been considered an attempted sexual assault charge. Over the years, more states have made laws prohibiting any sexual contact between adults and children. Some states, like Florida and Idaho, use the actual term lewd and lascivious conduct as the title of their sexual contact charges. Other states call the same conduct or offense indecency with a child or indecent contact with a child. Even though the titles vary, the general elements tend to be very similar.
Elements of Lewd Conduct Charges
The Victim Must be a Child
The first element of this charge is proving that the victim was actually a child. Who is considered a child for the purpose of this statute varies by state statutes. Idaho, for example, addresses conduct involving children under the age of sixteen. Texas addresses conduct for children under 17 years of age. Depending on where a defendant is charged, the age requirement usually ranges from fourteen to seventeen years of age.
The second element of a lewd and lascivious conduct with a child charge is sexual contact. Each state defines what they consider sexual contact, but all require some type of touching. Sexual contact can include touching by an instrument (such as a sex toy), by genital-to-genital contact, or by the mere rubbing of genitals with the hand of a defendant. Some defendants attempt to down play the sexual contact component by arguing that they only touched a victim over the clothing. However, most lewd and lascivious conduct with a child statutes do not differentiate conduct over or under clothing. Instead, the focus is sexual contact directed to one of a child’s private areas such as the anus, breast, or genitals.
Intent of the Contact
The third element of a lewd and lascivious conduct with a child charge is the intent of the contact. Most states have some requirement that the purpose of the sexual contact be for the sexual gratification of the defendant. This requirement exists to weed out accidental contact, especially those over clothing. Of the three elements, this is the most common element utilized in defensive theories by defendants who do not deny that a contact occurred, but instead contest the meaning or purpose of the touch.
Defenses for Lewd and Lascivious Conduct with a Child
Sexual contact over clothing tends to be easier to defend than touching under clothing. Defendants charged with lewd and lascivious conduct with a child through sexual contact over clothing have a better chance of demonstrating that the purpose of the touching was not for their sexual gratification. With this defense, a defendant does not contest that the child was touched, but instead challenges the intent of the touch.
For example, a defendant can introduce evidence that the touching was an accident or just a part of rough-housing with the kids. Before using this defense, a defendant should anticipate the prosecution’s response. If the state has evidence of other lewd and lascivious conduct, then the state may be able to introduce evidence of the other events to rebut a defendant’s defensive theory that this was merely an isolated accident. This defense rarely works with a charge for touching under clothing.
Consent may or may not be a defense to lewd and lascivious conduct with a child. Some states have a limited consent defenses when a defendant is close in age to the victim and the victim consented to the sexual contact. These are referred to as "Romeo and Juliet" defenses. Other states, such as Florida, specifically prohibit a defendant from claiming consent, chastity, or promiscuity of the victim as a defense. Some states will authorize the "Romeo and Juliet" defense only for sexual assault or sexual battery charges, but not for lewd and lascivious conduct with a child allegations. Even where a specific consent defense is not available, evidence of consent can be used to mitigate punishment for a lewd conduct with a child charge.
Punishment and Consequences
Most defendants are concerned about how much jail time they will have to serve after a conviction. Many states will impose punishment from two to forty years in prison. If a defendant engaged in multiple acts, he could be charged under a continuous abuse statute and be required to serve a minimum of twenty-five years in prison before becoming eligible for parole. If a defendant has a prior conviction for any sexually related offenses, some states will automatically impose a life sentence.
In lesser cases, a defendant may receive a probated sentence. Even though they receive probation, many defendants find that probations for sex-related offenses are very intensive and expensive. A defendant with a lewd and lascivious conduct with a child conviction is required to report more often and to pay for intensive sex offender counseling. Many sex offender counselors require monthly polygraphs which can cost up to $800 per polygraph.
Even more serious is the effect of a legal record that results from a conviction of this type on a defendant’s earning capacity. Not only are defendants straddled with high fees, but they are also required to register for ten years to life as a sex offender. Many employers will not hire an individual who is required to register as a sex offender. Some state agencies will not extend certain professional licenses to defendants who are required to register as a sex offender.