Lewd Conduct in Public
LA Criminal Defense Attorney is one among the top law firms in Los Angeles. Our combined years of experience in criminal defense puts us in an ideal position to address all your concerns in regards to Lewd Conduct in Public.
Definition of Lewd Conduct in Public under California Law
The interpretation of lewd conduct is governed by Penal Code 647. It states that anyone engaging in dissolute or lewd conduct in public or soliciting another to do so is in violation of this law. To offer more perspective, any behavior that relates to touching another person’s private parts, that is, the genitals, buttocks, a woman’s breasts, or your own genitals, either for sexual gratification or to offend another person, is considered lewd behavior.
It further states that anyone soliciting another person to engage in the activities described above is also in violation of the law and as such, will be deemed to have committed a prosecutable offense. You, therefore, stand accused of lewd behavior or lewd conduct either through engaging in it or by the solicitation.
What the Prosecutor Needs to Prove as Violation of Penal Code 647(a)
Lewd behavior is a case of the people against you, the defendant. It is upon the prosecution to prove that you are culpable of the charges levied against you. Some aspects need to be addressed in full by the prosecutors if their case against you is to be a success. We will look at different elements depending on whether you are accused of engaging in or soliciting the act.
- When Engaging in Lewd Conduct
You may stand accused of the misdemeanor charge if you are in violation of the California Penal Code 647. The offense attracts a six months jail term or a fine not exceeding $1,000, or both. In other situations, the judge may reduce or eliminate jail term in your sentencing, in which case they may require you to pay a fine, attend counseling, have a mandatory HIV/AIDS examination done, or insist on your staying away from the location you were found to have committed the act.
The legal burden of proof lies with the prosecution. They have to prove five aspects that should leave no doubt that you engaged in lewd behavior. They need to demonstrate to the court that;
- You willingly touched your private parts or that of another person,
- Your intention in the act was in the pursuit of arousal or sexual gratification for you or another person, or it was with the intent of annoying or offending another individual,
- The action was committed in a public place or full view of the public,
- The offended party was present at the time of the act,
- You were aware or should have been reasonably conscious that the party offended was present at the time of your conduct.
All submissions by the prosecution to the court should fully address your intent, the location where the activity took place, and the offense to the third party present during the act.
There should be no doubt that your agenda was to either arouse or annoy another person with regards to intent. The law is not explicit as to the parameters of intent. However, the standard rests on what a reasonable person understands the action’s intent was. If it is determined that arousal, sexual gratification, or offending another was not the motive, the case against you will be dismissed.
A lewd act in a public location is considered to have been carried out in an open place, a public area, or a vicinity in full view of the public. Any place accessible by the public is considered a public location. Areas such as your house, your place of business, or a hotel room are considered private. However, if the public can view such activity in these areas, then you are in violation of the penal code. This is the case if you carried on with the sexual activity with blinds or curtains open.
The law does not criminalize any sexual activity conduct in public. The assumption is that the activity was to be carried out without any witnesses. A mere possibility of being seen by the public while you participated in the act is not enough to prove that the action was witnessed and such an argument is, therefore, not enough to have you prosecuted. The prosecution must prove that the third party, witness to the conduct, was indeed present at the time.
- When Soliciting Lewd Conduct
Solicitation under Penal Code 647 attracts a fine of not more than $1,000 or a 6-month jail term or both if you are convicted. In some cases especially for first-time offenders, the judge may grant probation with a negligible jail sentence. At other times, a jail term may be excluded from the terms of your sentencing. It is upon the people to prove the following in their pursuit of a successful conviction.
- You requested another individual to touch their private parts,
- You, the defendant, required the conduct be held in a public location,
- You requested that the act is done in view of the public, that is, it is carried out in a public area,
- The request by the defendant was geared to gratify, or sexually arouse themselves or another with the aim of offending or annoying another person,
- The request was carried out in the presence of the offended party, and the defendant was aware that the act would offend or annoy the third party.
Any conviction made with respect to lewd conduct does not require you to be registered as a sex offender. Such registration is mandatory in situations where the prosecution combines the lewd conduct case with other charges like indecent exposure, which is an offense whose conviction will require you to register as a sex offender in California. Most prosecutors take advantage of the defendant’s fear of conviction. Thus, they present a deal that requires a guilty plea by the defendant to lewd conduct in exchange for other charges such as indecent exposure being dropped. Many defendants end up taking the deal to avoid the adverse outcome of having to register as a sex offender.
Most defendants in lewd cases are victims of circumstances. Many fall victim to sting operations conducted by the police. It is common knowledge that the police department in California has set up traps in popular public areas where it is a common practice for such activities to take place. Most victims are lured to the trap by policemen who entice them in the pretext of offering sexual favors. Several of the cases presented to the court show a consistent pattern that most of the defendants were not pursuing sexual pleasure at the time. They only took advantage of the opportunity presented to them.
If ever you are in a public area and someone makes a move that may lead to a lewd activity, leave immediately. It has become common that undercover police may offer such sexual favors as they set up to trap an unsuspecting victim. In their defense, the police justify the operation as a calculated response to the growing concern from residents of rising cases of lewd conduct. While the effectiveness of these operations is a controversial matter that has been discussed over time, the fact that the operations are ongoing is a call for you to avoid engaging in such activity in these places. It is best to be safe.
Common Defenses in a Lewd Conduct in Public Case
Having a great defense attorney is better in order to handle matters pertaining to lewd conduct. Criminal defense attorneys are suited to advise you on the course to take for your case. It is possible to have the case dismissed in its entirety before the matter is presented to a court through a deal struck with the District Attorneys. If this option fails and the case proceeds to trial, either of the following defenses can be used to argue your case. The attorneys will not, however, be limited to these defenses as the facts to a case may vary. They will choose a defense that is best suited for your case.
- You did touch yourself, but the intent was not for sexual gratification
In the event you touched yourself with the intention other than sexual gratification such as itching the groin, this offense is not prosecutable. It could be that at the time the third party witnessed the act, you were relieving yourself. Further, any touch of another’s private parts in instances of cleaning or dusting them off after an accident, fall or a spill from a drink also qualifies as instances that prove that the act was not intended for sexual gratification.
- It was an accident
Incidents of accidental private parts’ touching are not uncommon. Various situations may lead you to touch your private parts or those of another person accidentally. Accidental touch while playing, walking, running, or falling are some of the instances that help explain the alleged lewd act.
- The area the act was committed was not a public place, an open space, or an area in full view of the public
The interpretation by California courts has defined the term public area to include, among other things, a place freely accessible by the public. If the act was committed in an area considered as private, then it cannot be deemed to have been done in a location with visual access to the public; hence it is not a lewd act.
- There was a reasonable belief that no third party was present at the time
Third party presence is fundamental to the case. If there was a belief that there was no third party present at the time of the act, you are not liable for the crimes levied against you. The possibility of their presence is not enough to prove your guilt. It is often difficult for prosecutors to prove that you knew of the presence of the party witness to the activity unless there was explicit knowledge on your part of their presence. The lack of knowledge, in this case, is a good defense.
- The method used by the police was aimed at trapping you
The police are not to use any form of aggressive behavior with the aim of luring a law-abiding citizen to commit a lewd act. They are not to use any method of flattery, fraud, harassment, manipulation, pressure, or threats to lead you to a crime you are not predisposed to commit. Therefore, any action by a defendant that shows the willingness to conduct the act without the use of the above methods by the police does not constitute entrapment. However, if any of the above techniques were used, the charges will be dismissed on account of entrapment.
Offenses that are Related to Lewd Conduct Cases
Prosecutors are known to introduce other charges with a mission to increase their conviction numbers. The charges are attached to the lewd act case against you in the hope that at least one charge holds if not all. Your options are often presented to you as plea bargains. This situation offers an opportunity for many defendants to take a deal from the prosecution to avoid the consequences of multiple convictions.
Penal Code 314 defines indecent exposure as any willing act of exposing your private parts or aiding or counseling another to expose their or your private parts to the public. The purpose of the act, similar to lewd conduct in public, is with the intent of sexual gratification as well as offending another in the act.
A conviction of this misdemeanor has a requirement of registration as a California sex offender, a tag no one wants to have hanging over their heads for the rest of their lives. While it may seem like an excellent choice to take a guilty plea for the lewd conduct charge as a way to avoid the indecent exposure charge, more often than not, the indecent exposure charges lack merit and with the help of a reputable criminal attorney, such charges may be dismissed in the pre-trial negotiations or during the trial.
Disturbing the Peace
It is an assumption made that the lewd act may cause a disturbance especially if it can be proved that the intent was meant to offend or annoy another person. Such a determination opens the door for a Disturbing the Peace charge against you.
You are liable for a jail term of not more than 90 days, or a fine not exceeding $400 if you’re found to have committed any of the following offenses as stipulated in California Penal Code 415 in relation to disturbing the peace. If you participated in any unlawful fight in the public area or challenged another to a fight;
- If you maliciously or willingly were loud or caused another to be loud;
- If you used offensive words that provoked a violent response from another;
- Similar to the trespassing charge, disturbing the peace is an infraction with no criminal record.
Trespass is often introduced as an additional charge alongside lewd conduct. The guidelines of trespass are stipulated under California Penal Code 602 and are often interpreted with Penal Code 647(5) (e). Penal Code 647(5)(e) stipulates that it is a punishable offense being involved in a lewd act in a building, car, structure, or any other place without express permission from the owner or one who is in control of it.
The trespass offense often has no connection with the lewd offense. However, it can be used by the prosecution as they seek to prosecute your lewd conduct case successfully. However, the stigma associated with a trespass charge including there being a criminal record often leads many defendants seeking a plea deal that convicts them of dissolute conduct and absolves them of trespass charges.
Trespass offenses can be charged as a misdemeanor that could land you in jail for not more than one year, or a fine not exceeding $1,000 in fines or both. It can also be prosecuted as an infraction, in which you may end up paying a penalty of no more than $100. However, you do not get a criminal record.
Loitering Around a Public Toilet with the Intention of Engaging or Soliciting Lewd Conduct
What is in question when prosecuting lewd activity charges is the intent and not the action. Hanging around toilets accessible by the public is in itself not an offense. However, if such an act is done with a view of engaging in lewd conduct or soliciting one, you are liable for a conviction punishable in a jail term or fines under Penal Code 647.
Lewd Acts with or Involving a Minor
Lewd acts on a minor or those that involve a minor are stipulated under Penal Code 288 of the California laws. They include touching or fondling a child’s sexual organs as well as any form of child molestation. Lewd conduct involving a minor is a felony and repeat offenders may be convicted to a lifelong prison sentence.
Any lewd acts involving adults under Penal Code 647 should be conducted in a public area for the case to merit a conviction. The matter of where the action was performed when a minor is in involved is not arguable. A defendant can be convicted regardless of whether the place of the activity was public or private. It should also be clear that a child’s age cannot be used as a defense when the dissolute activity involves a minor.
Peeping and Lewd Conduct
Subsections (i) and (j) under Penal Code 647 address the matter of peeping. Subsection (i) stipulates that it is unlawful for anyone to loiter and peep through windows or doors of inhabited private structures without a lawful engagement with the owner. Subsection (j) introduces the criminal invasion aspect of privacy. Under this subsection, anyone found to be using a camera or any other device with the aim of taking a video or photographs of another’s body without consent is in violation of the law and is deemed to have committed a crime.
The charges levied against you under these subsections are misdemeanors. They are punishable by a 6-month long jail sentence in a county jail or a fine not exceeding $1,000 or both. At other times, you may be sentenced to probation as guided by the judge. Repeat offenders are liable to stiffer penalties.
California Penal Code 261.5 defines statutory rape as any sexual engagement with a minor. Any individual under the age of 18 years is deemed to be a minor. The charge is prosecutable either as a misdemeanor or a felony subject to the circumstances of the case.
The ages of both the defendant and the minor play a significant role in determining liability. If you, as a defendant, are 21 years of age or over 21, the charges you face are far steeper when the minor in the activity is 16 years of age or below than when the minor is shy of attaining 18 years. It attracts a prison sentence of up to 4 years.
Legally, anyone convicted of having sex with a minor is not required to register as a sex offender in California. However, they are liable to high civil penalties that range from $2,000 to $25,000.
The stakes are high with all matters related to lewd conduct in public. A criminal conviction, registration as a sex offender, high fines are some of the outcomes of these cases that can be reduced or avoided if you engage the expertise of an LA criminal defense attorney.