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: CS/SB 1238
INTRODUCER: Criminal Justice Committee and Senator Martin
SUBJECT: Lewd or Lascivious Grooming
DATE: January 31, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Parker Stokes CJ Fav/CS
2. ACJ
3. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1238 creates s. 800.045, F.S., to provide that a person 18 years of age or older who
engages in a pattern of inappropriate communication or conduct directed toward a person less
than 16 years of age for the purpose of preparing, encouraging, or enticing such person to engage
in any unlawful sexual activity, sexual conduct, or sexual performance commits lewd or
lascivious grooming.
Lewd or lascivious grooming is a third degree felony.1
The bill amends s. 921.0022, F.S., by adding “Lewd or lascivious grooming” as a 3rd degree
felony and ranks the 3rd degree felony as a level 3 in the offense severity ranking chart.
The bill defines the terms “inappropriate communication or conduct,” “sexual activity,” “sexual
conduct,” and “sexual performance.”
The bill may have a positive indeterminate fiscal impact due to an increase in prison beds. See
Section V. Fiscal Impact Statement.
The bill becomes effective October 1, 2024.
1
A third degree felony is punishable by a term of imprisonment not exceeding 5 years pursuant to s. 775.082, s. 775.083, and
s. 775.084, F.S.
BILL: CS/SB 1238 Page 2
II. Present Situation:
Child Sex Crimes
The prevalence of child sexual abuse is difficult to determine due to underreporting. One study
shows that one if five girls and one in twenty boys is a victim of child sex abuse.2
Grooming Children for Sexual Abuse
Child sexual abuse is often effectuated following a period of ‘grooming’ and the sexualization of
the relationship.3 “Grooming” refers to deliberate actions taken by a defendant to expose a child
to sexual material; the ultimate goal of grooming is the formation of an emotional connection
with the child and a reduction of the child’s inhibitions in order to prepare the child for sexual
activity.4
During the desensitization phase the perpetrator typically introduces sexual content disguised as
jokes or discussions, or through exposure to pornography or other explicit material,5 and utilizes
frequent non-sexual touch to desensitize the victim to physical contact. Post-abuse, the offender
may engage in maintenance strategies in order to facilitate future sexual abuse and to prevent
disclosure.6
While there are several offenses in current law which prohibit a person from encouraging,
enticing, soliciting, or inducing a minor to engage in sexual activity, lewd or lascivious behavior,
or a sexual performance, current law does not specifically criminalize the preparation of a child
to engage in sexual activity, sexual conduct, or a sexual performance through a pattern of
inappropriate communication or conduct directed toward the child.
Consent
Florida has various laws with age requirements for offenders and victims. While certain laws
permit persons under the age of 24 years old to engage in sexual activity with 16 or 17 year olds,
other laws prohibit sexual activity with a person under the age of 16.7 A person who is 18 may
consent to sexual activity with a person of any age, provided the person is not under the age of
16.
When an individual engages in consensual sexual activity with a minor, even if they are a minor
themselves, they may be charged with an offense. In State v. J.A.S., the District Court of Appeal
of Florida, Fifth District held that minors cannot consent to sexual activity even in a minor-to-
minor situation. The court held that sexual activity between minors is prohibited whether or not
2
National Center for Victims of Crime, Child Sex Abuse Statistics, available at, https://victimsofcrime.org/child-sexual-
abuse-statistics/ (last visited January 31, 2024).
3
State v. Brown, 299 So.3d 561 (5th DCA 2020).
4
United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011).
5
Helping Survivors, Sexual Grooming, available at, https://helpingsurvivors.org/grooming/ (last visited January 23, 2024).
6
Psychology Today, How to Recognize the Sexual Grooming of a Minor, July 7, 2023, available at,
https://www.psychologytoday.com/us/blog/protecting-children-from-sexual-abuse/202010/how-to-recognize-the-sexual-
grooming-of-aminor (last visited January 23, 2024).
7
See ss. 800.04, and 794.05, F.S.,
BILL: CS/SB 1238 Page 3
each of the participants believe that they have consented.8 The Florida Supreme Court in J.A.S.,
ruled that s. 800.04, F.S., was not unconstitutional as applied to two 15-year-old boys who
engaged in “consensual” sex with two 12-year-old girls.9
The constitutionality of this statute has been upheld, and a minor may be charged with violating
the statute.10,11
Lewd and Lascivious Offenses
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 person doing an act.12,13
Neither the victim’s lack of chastity nor the victim’s consent is a defense to lewd or lascivious
offenses. Additionally, the perpetrator’s ignorance of the victim’s age, the victim’s
misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age
cannot be raised as a defense.14,15
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;16 lewd or lascivious molestation;17 lewd or lascivious
conduct;18 and lewd or lascivious exhibition.19 An individual convicted of violating section
800.04, F.S., is required to register as a sex offender.20
8
State v. J.A.S., 686 So.2d 1366, 1369, (Fla. 5th DCA) (1997).
9
Id.
10
Jones v. State, 640 So.2d 1084 (Fla. 1994).
11
See also, State v. Metzler, 791 So.2d 565 (Fla. 5th DCA)(2001).
12
Chesebrough v. State, 255 So.2d 675, 677 (Fla. 1971).
13
Whether an act or conduct is lewd or lascivious is a factual issue to be decided on a case -by-case basis. Andrews v. State,
130 So. 3d 788, 790 (Fla. 1st DCA 2014).
14
Section 800.04(2), F.S.
15
Section 800.04(3), F.S.
16
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.
17
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.
18
Section 800.04(6), F.S.
19
Section 800.04(7), F.S.
20
Section 943.0435, F.S., provides that “Sexual offender” means a person who meets the criteria in sub-subparagraph a., sub-
subparagraph b., sub-subparagraph c., or sub-subparagraph d., as follows: a.(I) Has been convicted of committing, or
attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state
or similar offenses in another jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where the
victim is a minor; s. 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding s. 794.011(10); s. 794.05;
former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding
s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s. 895.03, F.S., if the court makes a written finding that the
racketeering activity involved at least one sexual offense listed in this sub-sub-subparagraph or at least one offense listed in
this sub-sub-subparagraph with sexual intent or motive; s. 916.1075(2); or s. 985.701(1), F.S.; or any similar offense
BILL: CS/SB 1238 Page 4
Lewd or Lascivious Conduct
A person who intentionally touches a person under 16 years of age in a lewd or lascivious
manner21 or solicits a person under 16 years of age to commit a lewd or lascivious act commits
lewd or lascivious conduct.22
An offender who is:
Eighteen years of age or older who commits lewd or lascivious conduct commits a second
degree felony.23
Less than 18 years of age who commits lewd or lascivious conduct commits a third degree
felony.24
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.25
Lewd or Lascivious Battery
A person commits lewd or lascivious battery by:
Engaging in sexual activity with a person 12 years of age or older but less than 16 years of
age;26 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.27
An offender who commits Lewd or Lascivious Battery commits a second degree felony.
Lewd or Lascivious Molestation
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.28
committed in this state which has been redesignated from a former statute number to one of those listed in this sub-sub-
subparagraph.
21
Section 800.04(6)(a)1., F.S.
22
Section 800.04(6)(a)2., F.S.
23
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.
24
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.
25
Fla. Std. Jury Instr. (Crim.) 11.10(d), Lewd or Lascivious Conduct, s. 800.04(6), F.S.
26
Section 800.04(4)(a)1., F.S.
27
Section 800.04(4)(a)2., F.S.
28
Section 800.04(5)(a), F.S.
BILL: CS/SB 1238 Page 5
A person who commits Lewd or Lascivious Molestation commits a second degree felony if the
person is 18 years of age or older against a victim 12 years of age or older but less than 16 years
of age.29
An offender who is 18 years of age or older who commits lewd or lascivious molestation against
a victim less than 12 year of age commits a life felony.
Lewd or Lascivious Exhibition
A person commits lewd or lascivious exhibition by performing any of the following acts in the
presence of a person under 16:
Intentionally masturbating;
Intentionally exposing the genitals in a lewd or lascivious manner; or
Intentionally committing any other 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.30
An offender 18 years of age or older who commits lewd or lascivious conduct commits a second
degree felony.
An offender less than 18 years of age who commits lewd or lascivious conduct commits a third
degree felony.
Lewd or Lascivious Written Solicitation of Certain Minors
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 or lascivious act commits a third degree felony.31
Transmission of Material Harmful to Minors
Section 847.0138, F.S., prohibits a person, in this state or in any jurisdiction other than this state,
from knowingly transmitting or believing that he or she is transmitting an image, information, or
data that is harmful to minors to a specific individual known by the defendant to be a minor, as a
third-degree felony.
Section 847.001(7), F.S., defines “harmful to minors” as any reproduction, imitation,
characterization, description, exhibition, presentation, or representation, of whatever kind or
form, depicting nudity, sexual conduct, or sexual excitement32 when it:
Predominantly appeals to a prurient, shameful, or morbid interest;
Is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable material or conduct for minors; and
Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
29
A felony of the first degree is punishable by a term of imprisonment not exceeding 30 years, pursuant to s. 775.082,
s. 775.083, or s. 775.084, F.S.
30
Section 800.04(7)(a), F.S.
31
Section 794.053, F.S.
32
Section 847.001(20), F.S., defines “sexual excitement” as the condition of the human male or female genitals when in a
state of sexual stimulation or arousal.
BILL: CS/SB 1238 Page 6
Prohibited Computer Usage
Any person who knowingly uses 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 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 by the person to be a child;33 or
Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or
custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child
to consent to the participation of such child in any act described in ch. 794, ch. 800, or
ch. 827, F.S., or to otherwise engage in any sexual conduct, commits a felony of the third
degree.34
Traveling to Meet a Minor
Any person who travels any distance either within this state, to this state, or from this state by
any means, who attempts to do so, or who causes another to do so or to attempt to do so for the
purpose of engaging in any illegal act described in ch. 794, ch. 800, or ch. 827, F.S., or to
otherwise engage in other unlawful sexual conduct with a child or with another person believed
by the person to be a child after using 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 entice a child or another
person believed by the person to be a child, to engage in any illegal act described in ch. 794,
ch. 800, or ch. 827, F.S., or to otherwise engage in other unlawful sexual conduct with a
child;35 or
Solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or
custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child
to consent to the participation of such child in any act described in ch. 794, ch. 800, or
ch. 827, F.S., or to otherwise engage in any sexual conduct, commits a felony of the second
degree.36
III. Effect of Proposed Changes:
The bill creates s. 800.045, F.S., to provide that a person 18 years of age or older who engages in
a pattern of inappropriate communication or conduct directed toward a person less than 16 years
of age for the purpose of preparing, encouraging, or enticing