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Lewd Conduct in Public

According to Section 647(a) of California's Penal Code, lewd conduct is engaging in a lewd act or soliciting another person to partake in such conduct. In some cases, lewd conduct charges stem from police sting operations. These operations often have major consequences including considerable embarrassment for the guilty party. In many instances, lewd acts are linked to child sex crimes such as child molestation or touching a little one in a sexual manner with the intention of sparking sexual arousal. However, the letter of the law extends far beyond children. Masturbating in a club or movie theater can also lead to a charge of lewd conduct in public.

Being found guilty of lewd conduct in public can lead to jail time, a stiff fine, a record as a sex offender and all sorts of other problems. If you have been accused of lewd conduct in public, do not attempt to navigate the murky legal waters alone. Our attorneys are here to help defeat the charge and return your life to a semblance of normalcy.

The Challenge of Proving Lewd Conduct in Public Occurred

In order to prove an individual is guilty of partaking in lewd conduct in public, the prosecutor is tasked with establishing specific elements. This burden of proof is squarely on the prosecutor's shoulders. The first element to prove is the defendant willingly engaged in the touching of another person's genitals, breasts or buttocks or his or her own private parts. The next element to prove is the defendant engaged in such an action with the intention of sexually gratifying or arousing, offending or annoying another person or himself/herself.

The next element to prove is the defendant participated in the lewd conduct while in a public place or a space that is open to the general public's view. Someone who might be offended by the act in question must have been present during the alleged lewd conduct. Finally, it must be proven the defendant should have understood the person who could possibly be offended by the conduct was actually present. This awareness is essential to proving guilt.

Proving the Defendant Solicited Lewd Conduct

Proving the defendant solicited some form of lewd conduct from another person is a completely different challenge. The prosecutor is tasked with establishing a number of different elements such as the defendant requested the other individual participate in the touching of the breasts, buttocks or genitals. The next element to prove is the defendant requested the other individual participate in the alleged conduct in a public space.

The prosecutor must prove the defendant made the solicitation in a public space rather than a private one. When making the request, the defendant must have done so with the intention of arousing or gratifying, offending or annoying himself/herself or the other individual. Otherwise, the behavior does not qualify as lewd conduct in public. The prosecutor is tasked with proving the defendant should have known or did know someone was likely to be nearby and could have been offended by the solicited conduct. Finally, the prosecutor must prove the other individual actually received the request.

An Example of Lewd Conduct in Public

Consider an instance in which a woman and a man are enjoying sandwiches in a public setting like a park. The couple is relaxed and becomes intimate to the point that they engage in sexual acts in the park. The couple is certainly aware other individuals are in the park yet they still proceed to have sex. A park security authority catches the couple in the sex act and notifies the police. The man and woman can both be charged with participating in a lewd conduct in public. This is a violation of the state's Penal Code Section 647(a).

Another good example of lewd conduct in public is a public sting operation in which an undercover officer is positioned in the restroom. Some such public restrooms tend to ge popular with gay individuals. The officer in question smiles at someone who enters the bathroom. This individual asks the undercover cop if he would like to partake in a sex act in one of the stalls. This individual can be charged with the solicitation of lewd conduct.

The Penalties for Lewd Conduct

This is a misdemeanor offense so it can be punished by upwards of half a year to a year in jail. Additional penalties include court fees, fines and HIV testing. Counseling might be required as it is possible for the judge to label the defendant as a sex offender. Court fines typically top out around $1,000. In fact, the guilty party is usually provided with a stay away order to remain a certain distance away from the location where the alleged lewd conduct occurred. Some of those found guilty of lewd conduct find it difficult to obtain housing or employment as they are labeled as sex offenders.

There is also a chance the court will place the guilty party on probation. If this occurs, he or she will face upwards of three years of summary or informal probation. The judge might mandate specific terms be followed in order for compliance with probation to be maintained. Examples of such terms include obeying all of the court's orders, paying all of the court ordered fines, disclosing probation terms to an officer of the law upon request, not violating any laws, attending and completing therapy with a mental health expert and using one's true name and date of birth in all situations. It is possible for the judge to determine whether the defendant must register as a sex offender. Furthermore, the defendant might also be charged with indecent exposure to boot. If convicted of indecent exposure, registering as a sex offender will be mandatory.

How to Defend Against Lewd Conduct: Entrapment and Beyond

If you find yourself mired in accusations of lewd conduct after involvement in an undercover sting operation or a situation of another type, it might be possible to raise a defense that proves successful. In many such situations, an antsy police officer will prove overly-aggressive and steer the target of the operation into behavior he or she otherwise would not have participated in. If this occurs to you, your attorney might be able to successfully argue an entrapment defense. This is just one of several examples of how an attorney can craft a customized defense to clear your name of lewd conduct charges, reduce penalties or eliminate them altogether.

It might be possible to take advantage of a diversion program to prevent a criminal conviction. Your criminal defense attorney will explore all such options after reviewing your case. Perhaps your attorney will argue your behavior does not fall under the state's definition of lewd. After all, the state's Penal Code pertaining to lewd conduct is quite complex when it comes to defining this word. Lewd acts are defined as conduct involving sexual gratification or another type of sexual deviancy. This means conduct in which one's moral principles are bypassed in favor of a sexual act or otherwise deviant act that is considered to be lewd.

Intentional Touching Versus Accidental Touching

Some attorneys have argued their client's alleged touching was accidental. It is certainly possible to accidentally brush against another person's buttocks. In some situations, there is simply not enough room to maneuver in tight quarters and people end up making physical contact. The bottom line is if it can be proven the touching was not willful, the defendant can't be punished. Furthermore, there are some situations in which a touching of the buttocks is acceptable in public settings. As an example, a baseball coach who slaps his players on the buttock afters on-the-field success is doing so as a form of encouragement rather than sexual arousal.

Conduct in Public View

Plenty of individuals accused of lewd conduct in public have escaped penalty by leaning on an attorney to argue the alleged act did not take place in public view. In order for an area to qualify as a public view, it can't be enclosed. As an example, an un-fenced lawn, public park and open balcony qualify as public spaces. The savviest attorneys will go as far as arguing the alleged lewd conduct in public could not have happened unless a third party individual was present and perceived the behavior as offensive. If no one is present when the alleged act occurs, the defendant can't be found guilty of lewd conduct in public. It is also important to note some attorneys have had charges of lewd conduct in public dismissed after proving the third party on-site when the behavior occurred was either not visible or hiding in a space unknown to the defendant.

In the end, if someone is not present to be offended by the lewd act, it does not qualify as a lewd act in public. As an example, one can masturbate in a public space if no one else is around and still not be found guilty of committing lewd conduct in public. If no one is around to be offended by the action in question, there is no reason for it to be illegal. Consider a situation in which a man and a woman are sitting next to one another in a movie theater and no one else is present. It will be difficult to prove the man committed a lewd act in public in such a situation. He can likely touch the woman inappropriately and face no repercussions for committing a lewd act in public as long as there is no one around to witness the behavior. 

The Challenge of Defining a Willful Act and Public Places

A willful act is best defined as a willingness to perform the act in question. There does not have to be any intent to actually violate the law, injure a person or obtain any sort of advantage. In terms of defining public places, areas that are considered to be public places range from public parks to movie theaters, public restrooms, sidewalks, parking lots and beyond. One cannot be found guilty of lewd conduct in public unless the action takes place in such a public setting.

Establishing the Intent of Stimulating Sexual Arousal/Gratification

If the prosecution is able to establish the defendant committed the act in order to sexually gratify or arouse another person or himself/herself, a guilty verdict is certainly possible. However, it is difficult to prove the defendant did not have any other purpose for the act than sexual gratification. There could be another reason for touching one's genitals in public such as an itch, genital crabs, excessive sweating and so on.

As an example, consider someone who works full-time, runs out of time to shower before bringing his little one to little league baseball practice and ends up trying to perform a quick clean in the public bathroom. As he is cleaning his private parts by the bathroom sink, a police officer walks in. The defendant's pants are down and his genitals are in his hand. The police officer arrests him for masturbation in public. Yet the defendant is not guilty of any sort of lewd conduct as he was simply attempting to wash up in the bathroom rather than trying to arouse, gratify, offend or annoy someone.

A Closer Analysis of the Issue of the Third Party

In order to be found guilty of engaging in lewd conduct in public or soliciting such conduct in public, there has to have been a third party on-site that could have observed the conduct. This third party must be present and the defendant must have reasonably been aware the conduct could have been perceived as offensive to this party. This means the third party merely being present and observing the conduct is not enough in and of itself to prove one's guilt for participating in lewd conduct in public. The perception of the act as offensive is essential to proving the defendant's guilt.

Reach Out to Our Orange County Criminal Attorney Today

If you have been accused of lewd conduct in public, you need an attorney on your side. Our legal team is here to help clear your name, reduce or eliminate potential penalties and return your life to normal. Give Orange County Criminal Attorneys a call today so we can tell you more about our legal services and explain how we can help you emerge from this legal challenge with a fair and just result. You can reach us at any hour. Give us a ring at 714-831-1858 to schedule an free initial consultation.

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Orange County Criminal Attorney
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Orange County Criminal Attorney
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