Court rules that simulated sex is not sex

A Brooksville man who simulated a sex act in front of a 7-year-old girl, her mother and grandmother did not break the law, an appeals court has ruled. David L. Lowe, 47, was sitting in his truck in the parking lot of a Hernando County convenience store when the family pulled into a space next to him in December 2008, court papers show.

Lowe began waving the sex toy as another woman walked by and put it in his mouth, documents show. The mother called police, who found the toy in Lowe's truck. Officers charged Lowe with lewd or lascivious exhibition in the presence of someone younger than 16. He pleaded no contest and was sentenced in July 2009 to two years of sex-offender probation.



Lowe appealed, arguing he had not engaged in sexual activity as defined by Florida law. The Fifth District Court of Appeal in Daytona Beach, which reviewed the case, agreed with him last week. "His actions, though clearly rude and offensive, do not violate the express terms of the statute," the court wrote.

Under the law, sexual activity does not include placing an object into a person's mouth. For Lowe's act to have been illegal, it would have had to involve the private parts of another person or his private parts and another person's mouth, the court ruled. The appeal court directed the trial court to dismiss the case.