State laws prohibiting public lewdness vary, but have many similarities. To obtain a conviction for public lewdness, the prosecutor must produce evidence sufficient to prove to a judge or jury, beyond a reasonable doubt, that the defendant committed open and public acts of indecency.
“Indecency” or “lewdness” usually includes an element of lustful or sexual indulgence on the part of the defendant. For example, engaging in sexual intercourse in a public place definitely satisfies this requirement. Other public sexual acts may also fall within the definition of lewd or indecent behavior. The level of sexual contact required, if any, varies by state. The exposure of private body parts, known as "flashing" or exhibitionism, also constitutes lewd behavior under many state statutes. But merely kissing in public probably does not.
In some states, lewd behavior includes sexual acts by unmarried individuals who are living (cohabitating) with one another, even when the sexual act does not take place in public. These states deem the act of unmarried cohabitation to be contrary to public morals.
While this definition varies by state, acts in places accessible to the general public, such as roads, stores, parks, and restaurants certainly fall within the public place requirement. Moreover, lewd acts in other environments not open to the general public, such as jails and hospitals, may suffice. In fact, in many states, acts in any place visible to the public satisfy this element of public lewdness. For example, sexual activity inside an automobile that is visible to someone outside the automobile constitutes lewd behavior. Similarly, lewd acts inside a private home may meet the public place requirement if persons outside the home can observe the acts.
In one case, a 2014 prosecution in Utah, a man faced misdemeanor charges of both lewdness and lewdness involving a child for conduct in his own yard. He allegedly lay sunbathing in the nude within the confines of his property, but only a chain-link fence separated him from an adjacent church parking lot. From that lot, adults and children could reportedly see him and his genitalia. (For more on the case, see Nude Sunbathing on Private Property: A Crime?)
While the prosecutor must prove that the defendant intended to commit the act in a public place, it need not prove that the defendant intended to be viewed by the public. But in determining intent, the law considers whether a reasonable person in the same circumstances would have known the act would be seen by others. If the jury answers “Yes,” the prosecutor has met his burden in proving intent. In other words, if a defendant recklessly disregards a substantial risk of exposure to other persons, the law considers the intent element satisfied.
Individuals charged with public lewdness commonly raise a number of defenses.
A person could expose a private part with no sexual motive. For example, a person might urinate in public without the intent to arouse sexual desire or gratification. Such an action would not constitute public lewdness in many states.
A person might engage in sexual activity in a typically private location, such as a home or hotel room, without intending public exposure. For example, a couple might have sexual contact in a bedroom, without the knowledge that a window curtain is open, thereby creating visibility to someone outside the room. In such a case, the defendant could raise lack of intent as a defense.
The United States Constitution requires that criminal statutes sufficiently describe the behavior prohibited. If the statute does not adequately describe the activity deemed criminal, a judge may strike the entire statute as unconstitutional. Courts have stricken some public lewdness statutes as unconstitutional for this reason.
In states that criminalize cohabitation by unmarried persons, proof of marriage constitutes a defense to the charge. Additionally, a defendant might have success challenging such a law on the grounds that it violates the defendant’s constitutional privacy rights.
Someone convicted of public lewdness can be subjected to any or all of the following penalties:
If you are facing a charge of public lewdness, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses you might have. For example, if you believe that your actions were not sexually motivated, you’ll need to know whether your state’s law has this requirement, as explained above.
A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of charges or a reduction in penalties, such as lower fines. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer on your side will be essential.