Caught Having Sex in Public: Laws, Charges, and Penalties

In most states, the laws that criminalize public sex make it a misdemeanor crime. Some state laws explicitly criminalize public sexual activity. Other laws are broader and cover a variety of indecent or lewd conduct. This article discusses laws addressing public sex in general, including sex in a car.

Is It Illegal to Have Sex in Public?

Yes. Sex in a public place can lead to embarrassing criminal charges for indecent exposure, public lewdness, or even disorderly conduct.

Indecent Exposure or Public Indecency

Intentional exposure of one's intimate parts, which usually include genitalia and women's breasts, is considered indecent exposure or public indecency. Because genitalia or breasts may be exposed during public sex, those caught in the act can face indecency charges.

Public Lewdness

In many states, a couple who has sex in public could run afoul laws prohibiting public lewdness. Lewd acts are typically defined by the obscenity standards of the state in which they are enacted. A statute might specifically prohibit public sexual intercourse, sexual acts, or other acts of a lewd, lascivious, or sexual nature that would offend or alarm members of the public.

Disorderly Conduct

A few states penalize acts of lewd or indecent behavior under their disorderly conduct laws. The California Penal Code, for instance, makes it a disorderly conduct offense to engage in lewd conduct in a public place or place exposed to public view. (Cal. Penal Code § 647.)

What Is a Considered a Public Place?

State laws prohibiting sex in public don't necessarily list out all locations considered to be public places. So how does one know? Is it defined by location, such as a public park? Or is it defined by who could witness the act? It can be a combination. What if no one else is around? This situation might lessen your chance of being caught but won't generally save you from prosecution should you face charges.

Most states view these laws in light of protecting unsuspecting members of the public who would likely be offended by witnessing the act. As such, they don't limit public places to just public parks, streets, and so on. Generally, it's anywhere in public view, observable, or likely observable.

Based on case law, it's a good bet that the following places are public:

• public restrooms and facilities
• beach, park, and other recreational areas
• stores, restaurants, and other businesses open to the public
• schools and school grounds
• public streets and highways, and
• public transportation vehicles and common areas.

Some courts have held that a private backyard or residence can be a public place if the act is viewable by the public.

Is It Illegal to Have Sex in a Car?

Whether having sex in a car is illegal often hinges on whether the vehicle qualifies as a public setting. If you're parked on a street during the day and clearly visible to passersby, the vehicle would likely qualify as a public setting. But other situations are not as clear cut. A New York court ruled that sex in a car was not sex in a public place unless the act could be readily seen by passersby. In the New York case, it was late evening and overcast, and the couple took efforts to park on a street with no people around. Based on these circumstances, the court decided the couple was not in a public place. (People v. McNamara, 585 N.E.2d 788 (1991).)

It really depends on your state's laws and the circumstances involved. The more visible you are to the casual observer, the more public you are and the likelier you are to be in violation of your state's laws.

Defenses to Public Sex Charges

A few defenses might be available to the defendant facing charges of having sex in public.

Not a Public Place

A commonly raised defense is that the act didn't occur in a public place. For instance, if you're parked in a secluded area at night and not in the pathway of pedestrians who could easily see inside your vehicle, you might be able to argue that you were not "in public."

On the other hand, arguing that sex in a secluded part of a public setting is not public won't likely succeed. For example, a couple having sex in a public restroom stall with the door closed is more or less out of public view, but most state decency laws prohibit sex in public restrooms. Not knowing you're in a public place will also likely fail as a defense.

Vagueness or Overbreath Challenges

Your attorney might be able to challenge the statute as unconstitutionally vague or overbroad. An overbroad statute unlawfully sweeps protected activity under its criminal provisions. Vagueness challenges the language of the statute as failing to give a person of ordinary intelligence an understanding of what conduct is prohibited.

Penalties for Having Sex in Public

A person convicted of public lewdness, indecent exposure, disorderly conduct, or a related charge will typically face a misdemeanor sentence. In most states, a misdemeanor carries a maximum penalty of up to one year in jail and a fine. The penalty differs from state to state, however. Other penalties could include probation or community service.

Consult a Lawyer

A charge of sex in public, while amusing to discuss in the abstract, is a lot less funny when you have to appear in court to answer it. Even though any charge is likely to be a misdemeanor, it is a serious and potentially costly matter. Consult an experienced criminal defense attorney in your state if you've been charged with sex in public or any other crime. Also consider that a conviction is a public record that potential employers, landlords, and others can see.