Review of Lewd Conduct and Indecent Exposure Laws and Defenses
California Penal Code 647(a) PC defines the crime of lewd conduct in public as the touching of your genitals, buttocks, female breast, or another person's, in order to gratify sexual desires, when you knew, or should have known, other people were present and might be offended by your behavior.
This sex crime statute also makes it a crime for anyone to solicit lewd conduct in a public place.
Lewd acts are described as inappropriate sexual actions occurring in public for sexual gratification or to offend. Put simply, Penal Code 647(a) makes it a crime to both partake in and solicit lewd conduct.
Frequently, PC 647(a) lewd conduct arrests are made due to an undercover police sting operation where decoy officers pretend to be a gay man in a public restroom and attempt to discretely bait someone into sexual activity, which are often challenged with an argument of police entrapment.
California Penal Code 314 PC defines the sex crime of indecent exposure occurring when someone willfully exposes their naked body or genitals in public to another person who could be offended or annoyed.
The actual act of someone “exposing” themselves must be done with a specific intent to draw public attention to their genitals for sexual gratification, or to offend someone.
In other words, “intent” is a most crucial element of the crime in the prosecution of a PC 314 indecent exposure case.
Indecent exposure in California is misdemeanor offense for a first conviction, but this crime could have long-term collateral consequences if you are convicted.
These are turbulent times, and if you're in the public eye and have been accused of a lewd conduct crime, you are surely worried about what troubled waters lay ahead for you.
Your fears are justifiable, particularly if you are an elected official, police officer, or school administrator. These professions are severely impacted, if not entirely extinguished, by a criminal conviction involving lewd conduct.
To give readers a better understanding of these laws, our Los Angeles criminal defense lawyers will review them below.
Criminal Lewd Conduct in California - Section 647(a)
Pursuant to California Penal Code 647(a) PC, a misdemeanor, lewd conduct offense is committed by an individual who:
- "solicits someone to engage in, or who engages, in lewd or dissolute conduct in any public place or any place open to the public or exposed to public view."
The words "lewd" and "dissolute" behavior may seem vague, however, in the prosecution's eyes, they are defined as behavior intended to achieve sexual gratification or to annoy or offend another. Lewd conduct criminal cases can involve any of the following:
- sexual activity in a public place,
- public masturbation.
- exposing yourself in a public place,
This behavior crosses over into criminal activity when it involves:
- the genitals, buttocks, or anus of either sex,
- the female breasts.
Notably, courts in California have broadly defined "public space," and the term can include seemingly private locations. Generally, a public place is a public bathroom, alley, sidewalk, city park, parking lot, etc.
Further, a privately owned adult bookstore is considered a public space, as is a massage parlor. "Public view" can mean a private space viewable by the public, like open windows in your own home.
Criminal Indecent Exposure in California - Section 314
Penal Code 314 PC describes the crime of indecent exposure as when somebody willfully and deliberately exposes their naked body or genitals to another person who could be offended or annoyed in a public place.
Pursuant to California Penal Code 314, a person may be convicted of a misdemeanor offense when they "willfully or lewdly":
- expose their person, or the private parts, in any public place, or in any place where others are present who might be offended or annoyed.
Put simply, indecent exposure means to purposefully exposing yourself in public when it could be considered lewd, just out of place, and not normal behavior.
The intentional exposure of your private body parts, when it seems offensive and against standards of decency in the community, can be considered the criminal sex offense of indecent exposure.
Obviously, in the state of California, there are some areas that are more tolerant of indecent exposure incidents than sections of the state.
However, if you deliberately expose your genitals in public, you could be charged with violating Penal Code 314 anywhere.
Section 314 is known as the "indecent exposure" crime, and it often results in a case of mistaken identity or mistaken intent.
A Section 314 conviction requires the guilty party to register as a sex offender for the duration of their life; thus, it's critically important that prosecutors adequately prove each element of the crime.
Lewd Acts Charged as Misdemeanors
Both Penal Code 647(a) and Penal Code 314 PC crimes described above are charged as misdemeanor offenses and can be punishable by up to six-months imprisonment in county jail in addition to fines.
If the individual is convicted of violating Section 647(a) or Section 314 for a second time or more, then the penalty becomes more severe, and the individual faces up to one-year imprisonment in county jail and up to a $2,000 fine.
Importantly, those charged with a Section 314 offense will also be required to register as a sex offender, which is a lifelong mandate.
They must also submit to HIV testing. Prosecutors frequently add a Section 314 charge to a Section 647(a) offense, thus triggering the lifetime sex offender registration requirement.
Any public official who will be interacting with children in the course of their profession must avoid a Section 314 conviction.
Repercussions of Lewd Conduct Convictions in California
Those who are employed in public positions are expected to protect the public interest.
When public officials or police officers are accused of lewd conduct, they face particularly weighty consequences. Even though Sections 647(a) and 314 result only in misdemeanors, those convicted may also be required to:
- register as a sex offender,
- seek sex offender counseling,
- avoid the area where the conduct occurred.
In addition to those requirements listed above, public employees accused of lewd conduct will additionally face:
- the scrutiny of the press,
- the degradation of their reputation,
- termination of their employment.
What are the Related Crimes?
- Penal Code 647(d) PC – loitering around a public toilet,
- Penal Code 415 PC – disturbing the peace,
- Penal Code 314 PC – indecent exposure,
- Penal Code 602 PC – trespassing,
- Penal Code 288 PC – lewd acts with a minor.
Defending a Penal Code 647(a) Charge
For prosecutors to convict you of violating Section 647(a), they need to prove several elements of the crime, including:
- that you were in a public place or a place exposed to the public;
- that there was a likelihood that other persons would be exposed to the behavior;
- that you touched your genitals or another person's genitals or female breasts.
Defendants should be acquitted if the prosecutor can't prove one of the charge's key criteria outlined above.
Perhaps we can make an argument you had a reasonable belief that there was no one nearby who would be offended, or that the act was not in a place that was open to public view.
Defending a Penal Code 314 PC Charge
While Section 314 convictions are misdemeanor offenses, those convicted are required to register as sex offenders.
Those who must register as a sex offender will probably lose their job when employed in the public sector. Accordingly, it is paramount that those charged with an indecent exposure offense mount a swift defense.
Defenses to a Section 314 charge include:
- you were not seeking sexual gratification;
- you did not intend to offend or annoy another person;
- exposure was not in public or in presence of others.
Intent is a key element to the Section 314 charge, and fortunately, it can be difficult to prove.
We might be able to negotiate with the prosecutor for reduced charges or a case dismissal. It might also be possible to avoid the formal filing of charges before court through prefiling intervention.
Eisner Gorin LLP is located in Los Angeles County and you can contact us for an initial consultation at (310) 328-3776.