The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report seeking amendments to a number of standard criminal jury instructions pertaining to prostitution and lewd or lascivious conduct. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee's report1 is in response to the Court's request that the Committee *Page 42 review the instructions on sexual offenses and consider "whether a uniform definition for `lewd and lascivious' is needed and whether the term `sensual intent' or `sensual intention' should be included in that definition." In re Standard Jury Instructions in Criminal Cases — ReportNo. 2008-01 995 So.2d 476, 477 n. 1 (Fla. 2008) (amendments to instructions on sexual battery and prostitution); see also In re StandardJury Instructions in Criminal Cases — Report No. 2008-02, 998 So.2d 1138,1139 n. 2 (Fla. 2008) (amendments to instructions on lewd and lascivious molestation, conduct, and exhibition). The Committee's proposals include the following: amending the definition of "lascivious" in instructions 11.8 and 11.9; adding the definition of "lewd and lascivious" to instruction 11.11; correcting instruction 23.2 to include the definition for "lewdness" previously authorized by the Court but inadvertently published as struck-through, see In re Standard Jury Instructions inCriminal Cases — Report No. 2008-04, 995 So.2d at 476 n. 1, 483; and adding the definition of "procure" to instruction 23.6.2
The Committee published its proposals in the February 1, 2010, edition of The Florida Bar News. No comments were received. Having considered the Committee's report, we hereby authorize the publication and use of the instructions as they appear in the attached appendix.3 In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
1. (Defendant) (copy from charge) with (person named in charge).2. The act was unnatural and lascivious.
Definitions.
"Unnatural" means not in accordance with nature or with normal feelingsor behavior. *Page 43
"Lascivious" means a wicked, lustful or unchaste, licentious, orsensual intent on the part of the person doing an act.normally tending toexcite a desire for sexual satisfaction. Lesser Included Offenses
________________________________________________________ UNNATURAL AND LASCIVIOUS ACT — 800.02 ________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ________________________________________________________ None ________________________________________________________ Attempt 777.04(1) 5.1 ________________________________________________________Comment This instruction was adopted in 1981 and revised in 2010. 11.9 EXPOSURE OF SEXUAL ORGANS (IN A VULGAR OR INDECENT MANNER) § 800.03, Fla. Stat. To prove the crime of [Indecent Exposure] [or] [Nakedness], the Statemust prove the following four elements beyond a reasonable doubt:
1. (Defendant)Proof of mere nudity or exposure is not sufficient to sustain aconviction. Definitions. As used in regard to this offense the words "vulgar," "indecent,""lewd," and "lascivious" mean the same thing. They meanan unlawfulindulgence in lust or a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing thean act.[exposed or exhibited [his] [her] sexual organs].
[was naked].
2. [He] [She] [did so] [was naked].
[in a public place].
[on the private premises of another].
[so near the private premises of another as to be seen from those private premises].
3. (Defendant) intended the [exposure or exhibition of [his] [her] sexual organs] [or] [nakedness] to be in a vulgar, indecent, lewd, or lascivious manner.
4. The [exposure or exhibition of the sexual organs] [or] [nakedness] was in a vulgar, indecent, lewd, or lascivious manner.
Acts are not vulgar, indecent, lewd, or lascivious unless such actscause offense to one or more persons viewing those acts or unless theacts substantially intrude upon the rights of others. A "public place" is any place intended or designed to be frequented orresorted to by the public. *Page 44 Lesser Included Offenses
____________________________________________________________________ EXPOSURE OF SEXUAL ORGANS — 800.03 ____________________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ____________________________________________________________________ None ____________________________________________________________________ Unnatural and lascivious act 800.02 11.8 ____________________________________________________________________Comment This instruction was adopted in 1981 and was amended in 1997 [697 So.2d 84] and 2010. 11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCEOF CHILD; SEXUAL BATTERY § 800.04, Fla. Stat. Give only for those offenses committed on or October 1, 1999. To prove the crime of (crime charged), the State must prove thefollowing two elements beyond a reasonable doubt:
1. (Victim) was under the age of 16 years.Definitions. Give in all cases. Neither the victim's lack of chastity nor the victim's consent is adefense to the crime charged. Give when § 800M(D, Fla. Stat., is charged. As used in regard to this offense the words "lewd," "lascivious," and"indecent" mean the same thing. They mean a wicked, lustful, unchaste,licentious, or sensual intent on the part of the person doing an act. Give when assault is charged under § 800.0MV, Fla. Stat. *Page 45 An "assault" is an intentional, unlawful threat by word or act to doviolence to the person of another, coupled with an apparent ability to doso, and doing some act which creates a well-founded fear in such otherperson that such violence is imminent. Give when § 800.04(4), Fla. Stat, is charged. As used in regard to this offense the words "lewd" and "lascivious"mean the same thing and mean a wicked, lustful, unchaste, licentious, orsensual intent on the part of the person doing an act.Give as applicable.
2. (Defendant)
a. [made an assault upon (victim) in a lewd, lascivious, or indecent manner].
[handled or fondled (victim) in a lewd, lascivious, or indecent manner].
b. (Defendant) committed upon (victim) or forced or enticed (victim) to commit
[actual or simulated sexual intercourse].
[deviate sexual intercourse].
[sexual bestiality].
[masturbation].
[sadomasochistic abuse].
[actual lewd exhibition of the genitals].
[any act or conduct which simulated that sexual battery was being or would be committed on (victim)].
c. (Defendant)
[committed an act [upon] [with] (victim) in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of [(victim)] [(defendant)]].
[committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object].
d. (Defendant) knowingly committed a lewd or lascivious act in the presence of (victim).
"In the presence of means that (victim) saw, heard, or otherwise sensedthat the act was taking place. See State v. Werner, 609 So.2d 585 (Fla. 1992). Give applicable definitions from § 847.001, Fla. Stat, when § 800.04(2),Fla. Stat, is charged,
There is no need to make reference to the words "without committing thecrime of sexual battery" because this refers to forcible sexualrelations. Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983); Chapters84-86, Laws of Florida. Lesser Included Offenses
_______________________________________________________________________ LEWD, LASCIVIOUS, OR INDECENT ASSAULT OR ACT UPON OR IN PRESENCE OF CHILD — 800.04 _______________________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. _______________________________________________________________________ None _______________________________________________________________________ Attempt 777.04(1) 5.1 _______________________________________________________________________ Assault 784.011 8.1 _______________________________________________________________________ Battery 784.03 8.3 _______________________________________________________________________ Unnatural and lascivious act 800.02 11.8 _______________________________________________________________________Comment This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], and 2008 [976 So.2d 1081], and 2010. 11.11 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF ANELDERLY PERSON OR DISABLED PERSON § 825.1025, Fla. Stat. To prove the crime of [Lewd or Lascivious Battery] [Lewd or LasciviousMolestation] [Lewd or Lascivious Exhibition] upon or in the Presence ofan Elderly Person or Disabled Person, the State must prove the followingthree elements beyond a reasonable doubt:
1. (Victim) was [an elderly] [a disabled] person.Definitions. Give as applicable The words "lewd" and "lascivious" mean the same thing and mean awicked, lustful, unchaste, licentious, or sensual intent on the part ofthe person doing an act. If 2a or 2c is alleged, define the act charged from § 847.001, Fla.Stat.Give 2a, 2b, or 2c as applicable.
2. a. (Defendant) committed lewd and lascivious battery by encouraging, forcing, or enticing (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity].
b. (Defendant) committed lewd and lascivious molestation of (victim) by intentionally touching in a lewd *Page 46 and lascivious manner [his] [her] [breasts] [genitals] [genital area] [buttocks] [clothing covering [his] [her] [breasts] [genitals] [genital area] [buttocks]].
c. (Defendant) committed lewd and lascivious exhibition to (victim) by [intentionally masturbating] [intentionally exposing [his] [her] genitals in a lascivious manner] [committing any other lewd or lascivious act not involving physical or sexual contact with (victim) including but not limited to [sadomasochistic abuse] [sexual bestiality] [simulated any act involving sexual activity]].
3. (Defendant) knew or reasonably should have known that the (victim) lacked the capacity to consent or failed to give consent.
"Disabled adult" means a person 18 years of age or older who suffersfrom a condition of physical or mental incapacitation due to adevelopmental disability, organic brain damage, or mental illness, or whohas one or more physical or mental limitations that restrict the person'sability to perform the normal activities of daily living.
"Elderly person" means a person 60 years of age or older who issuffering from the infirmities of aging as manifested by advanced age ororganic brain damage, or other physical, mental, or emotionaldysfunctioning, to the extent that the ability of the person to provideadequately for the person's care or protection is impaired.
"Lacks capacity to consent" means an impairment by reason of mentalillness, developmental disability, organic brain disorder, physicalillness or disability, chronic use of drugs, chronic intoxication,short-term memory loss, or other cause, that causes an elderly person ordisabled adult to lack sufficient understanding or capacity to make orcommunicate reasonable decisions concerning the elderly person's ordisabled adult's person or property. Lesser Included Offenses
_______________________________________________________________________________ 11.14 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON — 825.1025 _______________________________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. _______________________________________________________________________________ None _______________________________________________________________________________ Attempt 777.04(1) 5.1 _______________________________________________________________________________ Assault 784.011 8.1 _______________________________________________________________________________ Battery 784.03 8.3 _______________________________________________________________________________ Unnatural and lascivious act 800.02 11.8 _______________________________________________________________________________ Exposure of sexual organs 800.03 11.9 _______________________________________________________________________________*Page 47 Comment This instruction was adopted in 2007 [SC07-325, Corrected Opinion,August 30, 2007 965 So.2d 811] and amended in 2010. See Jennings v.State, 920 So.2d 32 (Fla. 2d DCA 2005).
23.1 MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION § 796.07(2)(a), Fla. Stat. To prove the crime of Maintaining a Place of [Prostitution] [Lewdness][Assignation], the State must prove the following element beyond areasonable doubt:
(Defendant) [established] [owned] [maintained] [operated] any [place][structure] [building] [conveyance] for the purpose of [lewdness][assignation] [prostitution]. Definitions.
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Assignation" means the making of any appointment or engagement forprostitution or lewdness, or any act in furtherance of such appointment orengagement. A "structure" is any building of any kind, either temporary orpermanent, which has a roof over it and includes any closely adjoiningland enclosed by a fence or wall. A "conveyance" means any motor vehicle, ship, vessel, railroad car,trailer, aircraft, or sleeping car.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23.2 SOLICITING FOR THE PURPOSE OF PROSTITUTION OR A LEWD OR INDECENT ACT § 796.07(2)(b), Fla. Stat. To prove the crime of Soliciting for the Purpose of [Prostitution] [AnyLewd or Indecent Act], the State must prove the following element beyonda reasonable doubt:
(Defendant) [offered] [offered to secure] [agreed to secure] another person for the purpose of [prostitution] [any lewd or indecent act].Definitions.
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses. A "lewd act" is any indecent or obscene act. "Indecent" means wicked,lustful, unchaste, licentious, or sensual intention on the part of theperson doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, *Page 48 the sexual organ of another; anal or vaginal penetration of another byany other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes. "Indecent" connotes wicked, lustful, unchaste, licentious, or sensualintention on the part of the person doing the act. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23.3 RECEIVING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION § 796.07(2)(c), Fla. Stat. To prove the crime of Receiving for the Purpose of [Prostitution][Lewdness] [Assignation], the State must prove the following elementbeyond a reasonable doubt: Give element 1 or element 2 as applicable.
1. (Defendant) [received] [offered to receive] [agreed to receive] a person into a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].Definitions.2. (Defendant) permitted a person to remain in a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes.
"Assignation" includes the making of any appointment or engagement forprostitution or lewdness or any act in furtherance of such appointment orengagement. A "structure" is any building of any kind, either temporary orpermanent, which has a roof over it and includes any closely adjoiningland enclosed by a fence or wall. A "conveyance" means any motor vehicle, ship, vessel, railroad car,trailer, aircraft, or sleeping car. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23. 4 TRANSPORTING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION § 796.07(2)(d), Fla. Stat. To prove the crime of Transporting for the Purpose of [Prostitution][Lewdness] [Assignation], the State must *Page 49 prove the following two elements beyond a reasonable doubt:
1. (Defendant) [directed] [took] [transported] [offered or agreed to [direct] [take] [transport]] a person to [a place] [a structure] [a building] [another person].Definitions.2. At the time, (defendant) knew or had reasonable cause to believe that such [directing] [taking] [transporting] was for the purpose of [prostitution] [lewdness] [assignation].
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes.
"Assignation" includes the making of any appointment or engagement forprostitution or lewdness or any act in furtherance of such appointment orengagement. A "structure" is any building of any kind, either temporary orpermanent, which has a roof over it and includes any closely adjoiningland enclosed by a fence or wall. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23.5 OFFERING TO COMMIT, COMMITTING, OR ENGAGING IN PROSTITUTION, LEWDNESS, OR ASSIGNATION § 796.07(2)(e), Fla. Stat. To prove the crime of Offering to Commit, Committing, or Engaging in[Prostitution] [Lewdness] [Assignation], the State must prove thefollowing element beyond a reasonable doubt:
(Defendant) [offered to commit] [committed] [engaged in] [prostitution][lewdness] [assignation]. Definitions.
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes.
"Assignation" includes the making of any appointment or engagement forprostitution or lewdness or any act in furtherance of such appointment orengagement. *Page 50 Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23.6 SOLICITING FOR PROSTITUTION, LEWDNESS, OR ASSIGNATION § 796.07(2)(f), Fla. Stat. To prove the crime of Soliciting for [Prostitution] [Lewdness][Assignation], the State must prove the following element beyond areasonable doubt:
(Defendant) [solicited] [induced] [enticed] [procured] another tocommit [prostitution] [lewdness] [assignation]. Definitions.
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling of the sexual organ ofanother for the purpose of masturbation; however, the term does notinclude acts done for bona fide medical purposes.
"Assignation" includes the making of any appointment or engagement forprostitution or lewdness or any act in furtherance of such appointment orengagement. To "solicit" means to ask earnestly or to try to induce the personsolicited to do the thing solicited. To "procure" means to persuade, induce, prevail upon or cause a personto do something. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. 23.7 ENTERING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION § 796.07(2)(g), Fla. Stat. To prove the crime of Entering for the Purpose of [Prostitution][Lewdness] [Assignation], the State must prove the following elementbeyond a reasonable doubt:
(Defendant) [resided in] [entered] [remained in] a [place] [structure][building] [conveyance] for the purpose of [prostitution] [lewdness][assignation]. Definitions.
"Prostitution" is the giving or receiving of the body for sexualactivity for hire but excludes sexual activity between spouses.
"Lewdness" is any indecent or obscene act. "Indecent" connotes meanswicked, lustful, unchaste, licentious, or sensual intention on thepart of the person doing the act.
"Sexual activity" means oral, anal, or vaginal penetration by, or unionwith, the sexual organ of another; anal or vaginal penetration of anotherby any other object; or the handling or fondling *Page 51 of the sexual organ of another for the purpose of masturbation; however,the term does not include acts done for bona fide medical purposes.
"Assignation" includes the making of any appointment or engagement forprostitution or lewdness or any act in furtherance of such appointment orengagement. A "structure" is any building of any kind, either temporary orpermanent, which has a roof over it and includes any closely adjoiningland enclosed by a fence or wall. A "conveyance" means any motor vehicle, ship, vessel, railroad car,trailer, aircraft, or sleeping car. Lesser Included Offenses No lesser included offenses have been identified for this offense.
Comment This instruction was adopted in 1981 and amended in 2008 and 2010. *Page 52