Public Lewdness Laws and Penalties

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.

What Constitutes Lewd or Indecent Behavior?

"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 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.

What Is a "Public Place"?

While the definition of public place varies by state, acts in locations accessible to the general public, such as roads, stores, parks, and restaurants, certainly fall within the public place requirement. Lewd acts in other environments not open to the general public, such as jails and hospitals, may also suffice. In many states, acts in any place visible to the public satisfy this element of public lewdness. For example, sexual activity inside a vehicle that is visible to someone outside the vehicle 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.

What If the Defendant Didn't Intend Public Exposure?

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. When 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.

Defenses to Public Lewdness Charges

Individuals charged with public lewdness commonly raise several defenses.

Lack of Sexual Motivation

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.

Lack of Intent to Act Publicly

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.

Law Is Unconstitutionally Vague

The U.S. 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.

What Are the Penalties for Public Lewdness?

A person convicted of public lewdness would likely face misdemeanor penalties.

Incarceration. Misdemeanor sentences generally carry a jail sentence of 12 months or less. The judge may require that the entire sentence be served in jail.

Fines. Courts impose fines to penalize defendants. Fines vary depending on the state and the circumstances but could be in the $500 to $1,000 range.

Probation. A judge might allow a defendant to serve all or part of their sentence on probation. Probation allows the defendant to remain in the community. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling.

Community service. Courts often include, as a part of probation, the requirement that the defendant volunteer for a specified number of hours with court-approved organizations, such as charities.

See a Lawyer

If you're facing a charge of public lewdness, consider consulting with an experienced criminal defense attorney who regularly practices in your area.