Engaging in sexual activity in public, in and of itself, is not a crime in California. It only rises to the level of a criminal offense if the defendant knew — or should have known — that there was likely to be someone present who would be offended by their conduct.
The crime of “Lewd conduct in public” describes a situation where someone touches their own or someone else’s genitals, buttocks or female breasts for sexual gratification, when they knew or should have known that people present would be offended by it.
Lewd conduct in public is a misdemeanor in California, punishable by up to $1,000 in fines and six months in county jail. In reality, many of these charges are often reduced to lesser offenses, typically resulting in misdemeanor probation and little to no jail time. A conviction for lewd conduct in public does not require registration as a sex offender.
That said, prosecutors often charge lewd conduct in public in conjunction with “Indecent exposure” (PC 314), which does require a lifetime registration as a sex offender if you are convicted.
For this reason, if you have been accused of either lewd conduct in public or indecent exposure, a criminal defense attorney can help you navigate the options ahead of you.
What is ‘Lewd conduct in public’?
In order to convict someone of lewd conduct in public, a prosecutor must convince a jury that certain facts of the case were true. These facts are known as the “elements of the crime.” If the jury finds that the case did not include all of the “elements of the crime,” then the defendant cannot be convicted.
Under California Penal Code 647a, there are five elements to lewd conduct in public:
- The defendant willfully engaged in the touching of their own or someone else’s genitals, buttocks or female breasts.
- They did this with the intent to sexually arouse or gratify themselves or another person, or to annoy or offend another person.
- At the time this happened, the defendant was in a public place or a place open to the public view.
- Someone else who might have been offended was present.
- The defendant knew or reasonably should have known that another person who might’ve been offended by their conduct was present.
Let’s unpack this a little to explore more about what this means.
As mentioned in the second element, the prosecutor must prove that the defendant’s actions were intentionally sexual. For example, say a couple is having a picnic in a park. The man spills a drink on his lap and goes to a public restroom to wash up. As he’s washing around his penis, a police officer enters and arrests him for public masturbation. Because the man’s actions weren’t intentionally sexual, he should not be convicted for lewd conduct in public.
Next, what qualifies as “public?” California courts have traditionally interpreted this very broadly, meaning that any of the following locations could be considered public:
- A car on a public street
- A hallway in an apartment building
- A massage parlor
- A private movie booth at an adult bookstore
Locations like a home, hotel room or place of business are not public. However, it’s important to remember that if any location is exposed to public view, such as leaving the blinds open at a home or hotel room, this could still be a violation of 674a PC.
Lastly and most critically, the law requires that there be a likelihood that another party could be present who would be offended by the defendant’s actions. This is typically where most people see their lewd conduct in public charges reduced or dropped entirely. Even if someone was engaged in sexual activity in public, their behavior is legal if they reasonably believe that they will not be seen by anyone else or that no one viewing the activity would be offended.
For example, a couple has rented a private villa on a secluded beach. The villa had advertised itself for its privacy and romantic setting. While the couple is engaged in sexual activity, a boat travels alongside the beach and its occupants witness the sexual activity. Even though the couple engaged in sexual activity within public view, they had a reasonable expectation that they would not be seen by anyone else, so they are not guilty of lewd conduct in public.
Penalties for lewd conduct in public
Lewd conduct in public is a misdemeanor in California. It’s punishable by up to six months in county jail and fines of up to $1,000.
As we mentioned above, judges in California are typically willing to misdemeanor probation (also known as “summary” or “informal probation”) in lewd conduct in public cases. When this happens, the defendant usually has to agree to the following conditions:
- An AIDS test
- Requirements that the defendant stay away from the location
Lewd conduct in public doesn’t carry mandatory registration as a sex offender. While this is encouraging, prosecutors often charge lewd conduct in public with indecent exposure, which triggers mandatory lifetime registration as a sex offender.
Fighting back against sting operations
Police in California have been known to engage in sting operations, hoping to bait people into exposing themselves, masturbating or agreeing to a sexual act in public.
This most commonly takes the form of undercover police officers pretending to be gay men out cruising. As an example, an undercover police officer might visit a known cruising spot and attempt to solicit men for sexual activity there. If someone agrees, they might be arrested.
As well, police have been known to conduct surveillance at known cruising spots to arrest people engaged in sexual activity.
Depending on the facts of the case, there are a number of defenses at your disposal to fight back against police sting operations for lewd conduct. In the first example, if the police officer and the man he solicited were the only individuals at the spot at the moment, they might have had a reasonable expectation for privacy. In that case, the defendant should not be convicted of lewd conduct in public.
This is also true for the second example. If the only people who witnessed a sexual act in public were the police, who were there specifically for surveillance, the defendant should not be convicted.
Defenses against lewd conduct in public charges
Your attorney will work with you to carefully review the evidence and facts of your case. Lewd conduct in public is a difficult charge to convict someone of, and it’s a major reason why many defendants are able to see their charges reduced or dropped entirely.
However, never take anything for granted. Facing charges for a crime of a sexual nature can be personally and professionally damaging, and it can seriously disrupt your life. It’s important to work with an attorney who has a deep and successful history of defending cases like yours, who is an excellent communicator, and most importantly, inspires confidence when you speak with them.
Robert M. Heflend is a veteran sex crimes defense attorney. Located in the Los Angeles area, he has recently been honored by the National Trial Lawyers Top 100, Lead Counsel and SuperLawyers. Call today for your free case evaluation – 800-834-6434.