In Florida, criminal sexual contact is an act of non-consensual touching of another person without penetration or union with the female genital, oral, or anal organ of another for the purpose of sexual gratification.
Under Florida statutory language, criminal sexual contact is a form of lewd and lascivious molestation covered by F.S. 800.04. Sexual contact with another person without their consent (or with a person incapable of consenting) is considered less serious than sexual battery and carries a less severe penalty.
And Florida law is extremely rigid in interpreting what action is required to commit a penetration, which would elevate a “sexual contact” offense to a sexual battery with extremely harsh penalties. This subtle distinction is one of the topics this blog post addresses.
What Florida Considers Criminal Sexual Contact
Criminal sexual contact is most often referred to in Florida law in the context of points to be assessed against a defendant convicted of lewd and lascivious molestation of a minor. Violation of the statute prohibiting lewd and lascivious molestation is punished by a sentence partially dependent on the Florida Criminal Punishment Code that assigns “points” for “victim injury.”
No formal definition of the term “sexual contact” is contained in any Florida statute. However, Florida courts have held that “[t]he most common usage of the phrase ‘sexual contact,’ . . . ‘encompasses the physical touching of a person’s sexual body parts.’ “
Altman v. State, 852 So.2d 870, 874 (Fla. 4th DCA 2003) (quoting Seagrave v. State, 802 So.2d 281, 286 (Fla.2001)).
The issue arises when a trial court is fashioning a sentence for someone convicted of lewd and lascivious molestation. Should they be assessed points for “victim injury” when the alleged sexual conduct was limited to “outside the clothing” or kissing?
Examples of conduct that Florida appellate courts upheld as “sexual contact” supporting “victim injury” points include the following:
- Defendant touched the victim’s vaginal area with his fingers over the victim’s clothing,
- Defendant lying on top of the victim and with his clothed genitals pressed against hers and “humping,”
- Defendant touched the victim’s chest over her shirt while also touching her stomach and genital area.
In 2018, the United States District Court for the Northern District reiterated that Fla. Stat. § 921.0024 requires that “[w]here conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentencing points provided under section 921.0024, for sexual contact regardless of physical injury. See § 921.0021(7)(b)2, Fla. Stat. Section 921.0024(1)(a), Florida Statutes (2011), provides for 40 victim injury points for sexual contact without penetration.
Cirota v. Jones, No. 3:17cv253-LC/CAS (N.D. Fla. Sep. 20, 2018)
In another case, the Florida Court of Appeals rejected a defendant’s argument that touching the chest of a minor was not sexual contact because it did not involve “intimate parts.” The court pointed out that the statute provided that “A person who . . . Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; . . .” commits a criminal act.”
Kitts v. State, No. 98-2957 (Fla. Dist. Ct. App. Sep. 17, 1999)
In 2003, the court in Altman v. State held that “we agree that an ordinary person of common intelligence would understand that tongue-kissing a minor child is sexual contact.”
Sexual Contact Deemed Criminal in Florida
Since there is no statutory definition of “criminal sexual contact” in Florida, the law leaves the public to apply what a reasonable person would deem to fit the description. This ambiguity leaves room for a great deal of confusion but opens accused defendants up to possible convictions for conduct they did not recognize as sexual contact.
Defending allegations of lewd and lascivious molestation may be necessary whenever a defendant allegedly touched any part of another person’s groin, buttocks, inner thighs, the chest area of a woman, or another “intimate” body part in an offensive manner or with the intent to be sexually gratified.
Criminal Defense of Sexual Contact and Lewd & Lascivious Molestation
Every prosecution of any sexual offense in Florida requires the state to prove every element of the offense beyond a reasonable doubt, including the necessary criminal intent of the defendant. In cases involving underage minors, sexual gratification is a necessary element.
Accidental or incidental touching of an intimate body part is not criminal and cannot support a conviction in Florida’s courts. The skill and experience of your criminal defense lawyer will often be the difference between winning an acquittal, getting a charge dismissed, negotiating a favorable disposition, or suffering a conviction and prison sentence.
If you or someone you love has been accused of a sex-related crime, don’t hesitate to reach out to our skilled attorneys at Stechschulte Nell Law at 813-280-1244. We are ready to defend you.
