What Do the Courts Consider in Indecent Exposure Cases?

Some may recall fondly the hysteria of the streakers of the 1970s. Others might have laughed at the comic tropes of the man in the trench coat. Observers could debate the reasons for such conduct and whether it rose to the level of a crime. But in reality, most state penal codes include the crime of indecent exposure.

Indecent exposure laws make it a crime to purposefully display your "private parts" in public, causing others to be alarmed or offended. While the motive varies from person to person, indecent exposure is often committed for sexual gratification or arousal.

This article provides an overview of indecent exposure laws. It defines elements of the crime as set forth in state laws. It also reviews legal defenses to charges tied to lewd conduct.

What Does It Mean to Expose Yourself?

Indecent exposure normally means exposing genitalia either in public or in a setting where others are likely to be offended. Simply flashing underwear, no matter how revealing, is usually not considered indecent exposure for purposes of most states' laws. While showing a bared female breast could result in a criminal charge in some states, most carve out an exception for women breastfeeding their babies. Some do not categorize bared breasts as an offense at all.

So what about answering the call of nature? If someone leaves a bar at night and decides to urinate behind a dumpster, outside the direct view of others, are they breaking the law? It depends on state law. Intention is key in these cases. So taking precautions not to expose yourself tends to discount claims that the purpose of the act is related to sexual arousal or gratification. Most would agree it's best to just find a bathroom. Some localities prohibit public urination under a separate ordinance.

State Indecent Exposure Laws

In California, for instance, the crime of indecent exposure is a misdemeanor offense. Subsection 1 of California Penal Code Section 314 prohibits conduct in which the person:

• Acts willfully and lewdly
• Exposes their person or private parts
• Does so in any public place where people may be offended or annoyed by the exposure

The crime requires lewd intent. This means a sexual desire or motivation. Note that the offender's home could count as a public place if they are at the window and aware of anyone outside whom they can offend or annoy. The penalty for the offense rises to up to a year in jail or prison if the offender enters a dwelling without consent to commit the crime. A second or subsequent offense can result in felony charges.

Similarly, in Florida, a person cannot be convicted of this crime unless they had the intent to be lewd, lascivious, or indecent. Florida doesn't just make exposing yourself in public a crime. It outlaws the conduct on private premises when the act occurs in a vulgar or indecent manner as to be seen from such premises. A first offense is a first-degree misdemeanor. A new charge after a prior conviction may result in a third-degree felony indecent exposure conviction.

In contrast, New York makes it a crime simply to expose yourself in a public place. The indecent exposure relates to "private or intimate parts." This prohibition is not without exceptions, as New York carves out exclusions for nudity in a play or other legitimate entertainment program. It also excludes breastfeeding mothers. The exposure offense is a violation and subjects an offender to a fine and costs.

New York has other laws that ban public lewdness. Exposing your private or intimate parts in public in a lewd manner is a Class B misdemeanor offense. The crime of public lewdness in the first degree addresses such behavior in front of children under 16 years of age. If the offender is at least 19 years old, the offense increases to a Class A misdemeanor.

Penalties for Indecent Exposure

In most cases, a first-time conviction is a misdemeanor, which could entail a short stay in county jail or just a fine. A second offense typically carries more jail time and fines. Subsequent offenses could result in felony charges, which could lead to a state prison sentence.

Ohio provides a good example of this progression in degree and penalty in the statute. Some legal observers refer to such statutes as "wobblers," as they can adjust between a misdemeanor and a felony based on the circumstances.

In Ohio, the crime is called "public indecency." In general, state law prohibits recklessly engaging in conduct likely to affront others who are nearby and not members of the offender's household. The banned conduct includes:

• Exposure of private parts
• Sexual conduct or masturbation
• Conduct that appears to be sexual conduct or masturbation

Exposure of private parts is a fourth-degree misdemeanor. Engaging in sexual conduct, masturbation, or a simulation of the same is a third-degree misdemeanor. Prior convictions elevate the offense in degree and may lead to felony charges. The penalties increase whenever the conduct occurs in front of a minor who is not the spouse of the offender.

Moreover, in many states, including California, any type of conviction that involves indecent exposure may result in a duty to register as a sex offender for 10 years. Treatment of the offense as a sex crime often makes plea bargaining for an alternative charge a key defense strategy.

Defenses to Indecent Exposure Charges

In all criminal cases, the state must prove all elements of the crime beyond a reasonable doubt to obtain a conviction. Thus, many common legal defenses in an indecent exposure case challenge the evidence of one or more of the elements of the crime. Some of these defenses include:

• Alibi or mistaken identification — when the defendant can show that they were not at the location of the crime or that there are reasons to doubt the identification of the offender
• That the alleged conduct did not occur in public or in the presence of another person
• That the defendant remained clothed or did not expose genitalia
• That there was no lewd intent for sexual gratification, arousal, or offense
• False accusation — attacking the motive of the alleged victim

Accused of Indecent Exposure? Contact a Criminal Defense Lawyer

Although it may seem like a less serious crime, an indecent exposure conviction could follow someone for the rest of their life. It can appear as a sex offense in a criminal record. Depending on state law, a court may order sex offender registration in addition to the sentence.

If you face indecent exposure charges, consider getting legal advice to help you present your case or seek a plea bargain. You can contact an experienced criminal defense attorney in your community today.