In the first part of this article, we began discussing some little known sex crimes in Florida law such as transmitting obscene messages over the telephone, which are still technically on the books, but have been mostly unenforced. In this article Florida criminal lawyer John Musca will discuss some other largely unenforced Florida criminal statutes.
Chapter 798 of Florida's statutes deals with both adultery and cohabitation. Section 798.01 prohibits the crime of "living in open adultery." In Florida it is still technically a crime for a person to live in an open state of adultery. In order for a person to be guilty of this crime they must live "openly" with a person who is married to someone else. There has not been much case law in Florida criminal courts on the issue of how open a person has to be with his adultery in order to be convicted of a crime because the crime has been so rarely enforced.
Chapter 798.02 criminalizes "lewd and lascivious" cohabitation between any man and woman not married. The section also criminalizes "any man or woman, married or unmarried," who engage in open and gross lewd and lascivious behavior. Both the offenses of cohabitation and living in open adultery are second degree misdemeanors under Florida law, meaning that they are technically punishable with time in jail. It is unclear whether the cohabitation and adultery sections of Florida's criminal code would still be legal in light of the United States decision in Lawrence v. Texas, which held that the state of Texas did not have a rational basis to criminalize private, consensual and non-commercial sex between adults. Both laws have been so rarely enforced that the constitutionality of either provision has not been tested in the courts.
