Lewd and Lascivious Behavior
Engaging in open and gross lewdness and lascivious behavior.
Florida Statute
§ 798.02
Lewd and lascivious behavior
Verified against the 2026 Florida Statutes: October 13, 2026
Current provision effective: April 6, 2016
Case Law & Enforcement Cautions
Printed statutory elements and penalties must be read with these limitations.
Lewd Behavior — Sexual Conduct Alone Does Not Establish Open and Gross Lewdness
Controlling limitation
- Reviewed October 13, 2026: Campbell v. State, 331 So. 2d 289 (Fla. 1976), reversed a § 798.02 conviction involving brief touching over clothing in a dark, crowded adult lounge. The majority required behavior that was extremely indecent, immoral, and offensive, assessed in context; it did not decide the constitutional challenge.
- State v. Coyle, 718 So. 2d 218 (Fla. 2d DCA 1998), rejected a facial vagueness challenge. That ruling does not eliminate Campbell's limiting construction or establish that every sexual act violates this section. Record the specific conduct and context and seek State Attorney guidance for borderline conduct or expressive performances.
- The unmarried-cohabitation prohibition was removed in 2016. Relationship status and cohabitation alone do not establish this offense.
Targeted sources reviewed September 16, 2026; not a certification of all case law or the latest docket, mandate, or stay status. Verify current controlling law and agency/State Attorney guidance before enforcement. Statute-edition verification is separate from case-law review.
Quick Summary
The conduct must be open and gross and meet the limiting case-law standard. Document the specific acts and context; unmarried cohabitation is no longer prohibited by this section.
Elements of the Offense
Elements of the Offense
Elements marked AND are cumulative. Elements marked OR identify statutory alternatives; one applicable alternative must be established when that theory is charged. Conditional elements apply only to the identified statutory track.
- Element 1AND — Required
Both requirements together — AND
The defendant engaged in lewdness and lascivious behavior.
Plain language: Identify the specific sexual conduct; the label alone is insufficient.
- Element 2AND — Required
Both requirements together — AND
The behavior was open and gross.
Plain language: Apply Campbell: the behavior must be extremely indecent, immoral, and offensive in its context. These are a statutory field summary with a judicial limitation, not an official standard jury instruction.
Jury Instructions
Jury Instructions
Instruction N/A
No offense-specific standard jury instruction located
Reviewed the Florida Bar criminal instruction set updated October 9, 2026; no dedicated instruction for § 798.02 was located. Instruction 11.11 concerns § 825.1025, not this offense. The elements here are a statutory field summary incorporating Campbell; consult the State Attorney for case-specific instructions.
View Official InstructionVerified against the official instruction source: October 13, 2026
Important Definitions
Important Definitions
Open and gross
Campbell requires behavior that is extremely indecent, immoral, and offensive; assess the time, place, circumstances, and specific conduct rather than assuming every sexual touching qualifies.
Lewdness and lascivious behavior
Sexually indecent conduct, read together with the open-and-gross requirement and the judicial limitation. Chapter 798 does not provide a separate statutory definition.
Additional Notes
Additional Notes
Quick Reference
Record the exact acts, location, visibility, witnesses, and surrounding circumstances. Establish both lewd behavior AND its open-and-gross character. Do not infer an offense from relationship status or cohabitation.
Classification
Second-degree misdemeanor under § 798.02; ordinary maximum penalties are 60 days of imprisonment under § 775.082(4)(b) and a $500 fine under § 775.083(1)(e). This section contains no offense-specific repeat-conviction enhancement.
Cohabitation prohibition removed
Chapter 2016-188 removed the unmarried-cohabitation clause effective April 6, 2016. It retained the open-and-gross lewd-behavior offense. Official session law: https://laws.flrules.org/2016/188
Related offenses are distinct
Separately assess § 800.03 for exposure of sexual organs and § 800.04 for qualifying conduct involving a person under 16. Their elements are different; § 798.02 is not an automatic substitute or blanket lesser offense.
Official Source
Verified October 13, 2026 against the 2026 Florida Statutes, § 798.02: https://www.flsenate.gov/Laws/Statutes/2026/798.02. Penalty sources: https://www.flsenate.gov/Laws/Statutes/2026/775.082 and https://www.flsenate.gov/Laws/Statutes/2026/775.083. Current provision effective date verified from chapter 2016-188.