To prove an allegation of lewd or lascivious battery, where engaging in sexual activity is alleged, the prosecution must prove the following:
1) That the alleged victim was 12 years of age or older, but younger than 16.
2) That the defendant committed a sex act with/upon the alleged victim during which the sex organs of either the victim or the defendant penetrated/had union with the mouth/vagina/anus of the other.
OR
That the defendant committed a sex act on the alleged victim where an object was used to penetrate the alleged victim’s mouth/anus/vagina.
As one can see, lewd or lascivious battery is a sex act with a person 12 years of age or older, but younger than 16 years. Since the prosecution does not need to prove that the sex act was forced, it is no defense to prove that the victim consented.
In essence, lewd or lascivious battery is the crime charged when an adult has sex with a teenager.
While consent is not a defense, it certainly can be raised during trial. Juries are not expected to hear cases in a vacuum. Knowing that the alleged victim was a willing partner to the sex gives the case context. This way, they won’t simply assume that the sex was forced and decide to penalize the defendant as a result.
Like any other criminal offense, each element of a lewd or lascivious charge must be proven beyond a reasonable doubt. If any aspect of the case is lacking in this regard, the jury must acquit.
For this reason, a criminal defense lawyer representing someone accused of a lewd or lascivious battery must scrutinize every detail in the case. Since these cases are victim crimes, a criminal defense attorney must begin his/her work by evaluating the alleged victim’s claim.
A criminal attorney begins this process by reviewing the prosecution’s discovery submission. This submission will include the victim’s sworn statement as well as a list of witnesses they intend to admit at trial. Reviewing these statements for inconsistencies, incredulousness, and other discrepancies is essential.
When a criminal defense attorney does his/her initial review of the prosecution’s discovery submission, the main things he/she is looking for are as follows:
- Lack of Evidence
- Conflicts in the Evidence
- Inconclusive Evidence
- Circumstantial Evidence
- Direct Evidence
- Forensic Evidence
- Contradictory Evidence
- Unreliable Evidence
- Incredulous Evidence
The initial evaluation of the case evidence is extremely important and must be conducted objectively. Contrary to popular misbelief, the best criminal defense lawyers are not people who conjure up bogus stories about their clients. On the contrary, criminal defense is like the practice of medicine.
To help a client, a criminal defense lawyer must first know what he/she is dealing with. Where doctors send patients for blood tests and MRI’s, criminal defense lawyers perform an unbiased, objective analysis of the case facts by reading witnesses statements, conducting depositions, and doing case research.
Having an understanding of all the evidence, both good and bad, will give the criminal lawyer the perspective he/she needs to defend their client.
Once a criminal defense attorney has a grasp on the facts of the case, he/she can start applying the law. This process will begin by comparing the evidentiary burden imposed on the prosecution based on the charges filed. Knowing the prosecution’s evidentiary burden will enable the criminal defense lawyer to compare the facts to what the prosecutor will need to accomplish at trial in order to get a conviction.
Sometimes the prosecution has a very weak case in every regard. In other circumstances they have a very strong case. In most situations, the prosecution’s case is strong in some regards and weak in others. Knowing where the prosecution is weak and where they are strong is key to formulating a defense strategy.
In the coming sections, we will be discussing other variations of the lewd or lascivious batter charge. We will also discuss defenses to these charges and some of the penalties. Given the nature of lewd or lascivious battery charges, a person convicted of this offense may be subject to a number of enhancements that increase his/her exposure to prison time.