In a recent case near Jacksonville, Florida a defendant was charged with the sex crimes of lewd or lascivious exhibition and transmitting an image harmful to minors by an electronic device. The criminal charges stemmed from an undercover operation during which a police officer posed as a thirteen year old over the internet. According to the police, the defendant began communicating with the police officer in a sexually inappropriate manner. The defendant and the police officer were chatting on Yahoo Instant Messenger. At some point, the defendant set up a web cam and exposed his penis several times. The defendant was ultimately arrested and charged with the two sex crimes.
At trial, the defendant argued that what he wrote on Yahoo Instant Messenger and what he showed on his web cam were protected by the First Amendment right to free speech because it was done through a public website. However, the court found that communications over the internet directed to children are not protected by the First Amendment and the state has a compelling interest to protect children from harmful materials on the internet.
One question that comes up regarding the sex crime of lewd or lascivious exhibition is what the words “lewd” and “lascivious” mean. Unfortunately, these words are not defined in the criminal statute. So, there is no easy answer as to what conduct is criminalized under this law. Whether conduct is lewd or lascivious is decided first by the police and the prosecutor who decide to make an arrest and bring criminal charges, but ultimately by a judge or jury. The statute gives an example of lewd or lascivious conduct as follows: exposing one’s genitals in a lewd or lascivious way. Of course, when the definition includes the words we are trying to define, that definition is not very helpful.