Indecent Exposure vs. Lewd Conduct in Public

Indecent Exposure

California has a firm policy against public nudity offenses like indecent exposure and lewd conduct. Most of us probably have an idea of what indecent exposure and lewd conduct entail but fail to understand their implications in the legal sense. We hope that our readers will know a little more about the two anti-nudity offenses by the end of the article.

Indecent exposure

Indecent exposure happens when one exposes their genitals, causing annoyance and offending people around them. It does not pertain to public spaces only. It can occur in any environment; however, the exposure must be intentional. 

To be convicted of this offense, the prosecutor needs to prove beyond a reasonable doubt that:

  • You exposed your genitals to the public
  • You did it of your own free will
  • You exposed your genitals in the presence of someone who might have found it offensive
  • Your intentions for exposing your genitals were to seek attention from those around you

Penalties for indecent exposure

Section 314 (1) is the governing law that prohibits indecent exposure among other offenses. Indecent exposure is typically a minor offense that would only warrant a misdemeanor conviction. A first offender may get a six-month jail term or a fine of up to $1000.  Like many subsequent offenses, a repeat offender is charged with a felony and jailed in state prison. Unfortunately, not only would the offender have a felony conviction on his or her record, but the law would now require them to register as a sex offender for up to ten years.

Possible defenses for indecent exposure

  • It was an accident. For example, you stumbled and your genitals were exposed in the process, you can use that to prove that it wasn’t intentional.
  • There was mutual consent, for example, a music video with nude scenes. However, if a person who hasn’t consented stumbles on you, you will be charged with indecent exposure.
  • It was not sexually motivated. For instance, if your genitals are exposed due to a wardrobe malfunction, then you will not be charged with indecent exposure.

Lewd conduct in public

We’ve previously discussed lewd conduct in our “What is Lewd Conduct & What Are Good Defense Arguments?” article, but we will go over a few key points. According to Penal Code 647 (a), lewd conduct is taking part in or asking someone to participate in offensive conduct in public. To prove that there was lewd conduct, the prosecutor must show that:

  • You touched your or someone else’s buttocks, genitals, or female breasts intentionally
  • You intended to arouse or satisfy yourself sexually or to upset another person
  • You were in a public place or a place accessible to the public
  • A person that might have been offended in the act was present
  • You should have known that a person that might have take offense in the act was present

Penalties for lewd conduct in public

As in the case of indecent exposure, this offense attracts a misdemeanor charge with possibly six months in jail or up to $1,000 in criminal fines. You may also be required to undergo HIV testing. However, you will not be required to register as a sex offender unless a child was involved. Many prosecutors like to combined this charge with an indecent exposure charge. They may also drop the lewd conduct in public charge if you agree to plead guilty to indecent exposure.

Possible defenses for lewd conduct in public

  • You were not in a public space. You can’t be charged with lewd conduct if you were not in public view.
  • Your intention for touching yourself was not for sexual satisfaction. Maybe you felt itchy in your genitals and had to scratch. You cannot be prosecuted unless the prosecutor proves that you had a sexual motivation.
  • The police set a trap and made you do something you would have otherwise not done. 
  • You reasonably believed that there was no one present who would take offense to your act.
  • You did not engage in the acts you are being accused. It would help if you did not plead guilty to something you have not done. And prosecution will have a difficult time proving that you engaged in lewd conduct if you didn’t.

Notable Differences and Similarities

ElementIndecent ExposureLewd Conduct in Public
Misdemeanor offenseFirst offenseFirst offense
FelonySubsequent offenseSubsequent offense, if a child was involved
Sex offender registrationNot requiredRequired
Public presenceNot requiredRequired
IntentRequiredRequired

Indecent exposure and lewd conduct allegations can both seriously harm your reputation for the rest of your life. A qualified criminal defense attorney like Don Hammond knows what it takes to mitigate these allegations and solve your case. Call us now on +3235293660 for a brief consultation.