Engaging in lewd conduct in public is a crime, primarily because it goes against societal norms and can cause discomfort or offense to others sharing the same public spaces. Laws against this behavior aim to uphold public safety and maintain a standard of conduct that ensures a sense of security for everyone. Lewd actions in public can disrupt the peace and create disturbances, prompting authorities to criminalize this behavior to promote a respectful and safe environment in communal spaces. In essence, these laws exist to protect public order and ensure that individuals can interact without feeling threatened or offended.

In California, you will face charges for violating Penal Code 647(a) for engaging in lewd conduct. Bakersfield attorneys at California Criminal Lawyer Group break down the crime and the defenses you can use to challenge the charges.

Lewd Conduct Under California Law

Penal Code Section 647(a) outlines lewd conduct as a crime. If you engage in sexually explicit behavior in a public place or anywhere visible to the public, you could be charged with disorderly conduct, a misdemeanor offense. The purpose of this legal provision is to address conduct perceived as offensive or disruptive in public spaces.

Sexually explicit behavior includes touching your own or another person's:

  • Genitals
  • Buttocks, or
  • Female breasts for sexual gratification.

The law also requires you to have known or should have reasonably known that there are other people present who would be offended by your engaging in lewd or indecent conduct.

Further, it is an offense to solicit lewd conduct. If you actively ask someone to engage in sexually explicit or indecent behavior in a public place, you are soliciting lewd conduct.

So what must prosecutors prove for you to be found guilty of lewd conduct?

For a jury to find you guilty of lewd conduct, prosecutors need to show a few things:

  • Deliberate touching — They need to demonstrate that you intentionally touched your own or another person's buttocks, genitals, or a female breast.
  • Intent for sexual arousal or offense — Prosecutors must show that your touching had the specific purpose of sexually arousing or gratifying yourself or someone else. Alternatively, they can show it was meant to annoy or offend another person.
  • Public location — It must be established that the incident occurred in a public place or an area open to public view.
  • Presence of an offended party — Prosecutors must prove that someone else who could have been offended by your actions was present.
  • Knowledge or reasonable awareness — It needs to be demonstrated that you knew or reasonably should have known that another person who could be offended was present.

Let us look at the elements in detail.

     a) Lewd Conduct

Lewd and dissolute conduct are terms used interchangeably, referring to inappropriate touching considered indecent, immoral, or offensive, particularly in public settings. The focus is on touching the genitals, buttocks, or female breasts, and it becomes a violation when done with the specific intent of:

  • Sexual arousal — It is the physical and psychological response when an individual becomes sexually excited or stimulated. It involves a combination of physical changes, for example, increased blood flow to the genital area, mental and emotional reactions like heightened desire and pleasure, and hormonal shifts. This subjective experience varies from person to person. Individual preferences, desires, and comfort levels influence it.
  • Sexual gratification — Refers to experiencing pleasure or satisfaction through sexual activity. It involves finding pleasure, arousal, or contentment in engaging in sexual behaviors that lead to a sense of fulfillment.
  • Annoyance — You annoy another when your actions or behaviors disturb or irritate someone. This could involve doing something perceived as bothersome, inconvenient, or disruptive, causing frustration or discomfort for the person affected. Annoyance can stem from various sources. However, it typically arises when actions negatively impact someone's peace or well-being, like sexually explicit conduct.
  • Offending — To offend another person is to cause them feelings of resentment, displeasure, or hurt through words, actions, or behavior. It involves a lack of consideration for their sensitivities, values, or beliefs, leading to a sense of insult or injury. Keep in mind that offense is subjective, varying from person to person.

     b) Intent to Arouse or Annoy

When you have the "intent to arouse or annoy," it means that you purposefully engage in certain activities with the deliberate aim of either generating sexual arousal or causing annoyance in yourself or others. The intent to arouse involves seeking sexual excitement or gratification, while the intent to annoy entails actions intended to cause irritation, inconvenience, or displeasure.

The reasonable standard applies in determining the intent to annoy or arouse.

The reasonable standard, often known as the "reasonable person standard," is a legal and ethical concept used to evaluate an individual's actions or decisions. It involves assessing whether someone's conduct aligns with what a reasonable person would do in similar circumstances.

     c) Public Location

A public location is a place that is openly accessible or visible to the general public. It is an area where individuals can freely enter, gather, or move about without significant restrictions.

Public locations include spaces like:

  • Parks
  • Sidewalks
  • Streets
  • Government buildings
  • Shopping malls, and
  • Other areas open to public use

The designation of a location as public implies that it is not privately owned or restricted to specific individuals, allowing open access to community members.

It also includes specific locations, such as:

  • A car parked on a public street
  • A private movie booth at an adult bookstore
  • A massage parlor
  • A common hallway in an apartment building, and
  • The area behind the service counter in a men's clothing store

.Locations like your home, hotel room, and closed business place are considered private, not public. Nonetheless, it's crucial to be aware that a violation of the section could occur if one of these private locations becomes visible to the public. In these instances, actions within these ordinarily private spaces exposed to public view could face legal consequences. The presumption of privacy in these areas is compromised if they are observable by individuals in a public setting.

Therefore, engaging in sexual activity in an otherwise private location with open blinds could be deemed a legal violation.

     d) A Third Party Being Offended

Engaging in sexual activity in public could not automatically be illegal if there is no one around who could be offended by it. Penal Code 647(a) is designed to tackle and prevent offensive conduct in public spaces. So, the key factor in deciding whether these activities are legal under this law is the presence of potential onlookers who could find the conduct offensive.

Simply put, engaging in public sexual activity, as per Penal Code 647(a), is not just about the chance of being seen. It requires the actual presence of individuals who could be offended. Many individuals arrested for lewd conduct could genuinely be innocent. Despite engaging in public sexual activity, they likely believed:

  • Nobody else would see them, or
  • Even if someone did, that person would not be offended.

Lewd Conduct Resulting from Sting Operations

Lewd conduct cases often originate from law enforcement sting operations, aiming to apprehend individuals engaged in alleged lewd activities. Undercover agents or officers actively participate, posing as potential participants or observers to gather evidence for legal cases.

In some instances, law enforcement officers act as gay individuals while discreetly surveilling public locations to identify and apprehend those suspected of lewd conduct. Undercover officers, whether as participants or observers, work to collect evidence supporting legal actions against individuals involved in alleged lewd activities.

Law enforcement frequently attributes the initiation of lewd conduct sting operations to citizen complaints. These operations are strategically conducted in various locations, such as:

  • Parks and beach area bathrooms
  • Public parks
  • Shopping malls
  • Adult bookstores
  • Gymnasiums, and
  • Alleys

What should you do when you are arrested for lewd behavior?

In certain instances, law enforcement could issue a citation rather than make a formal arrest. This citation serves as a notice to appear in court. This is a less severe measure than a formal arrest involving custody, fingerprinting, and booking.

However, officers could opt for a formal arrest in more grave cases or under specific circumstances. They consider:

  • The nature of the alleged offense
  • Your criminal history, and
  • The officers' discretion

Seeking legal representation is crucial if you are cited or arrested for lewd conduct or another offense. Consulting with a criminal defense attorney allows for assessment, understanding of evidence, and guidance on the best course of action.

A period often elapses between arrest and formal charges. During this time, your attorney could engage with the district attorney to present the case. This could lead to a decision not to file charges, known as "rejecting" the case.

A robust defense strategy, understanding rights, and obtaining legal representation early significantly impact case outcomes. If there is evidence of police misconduct, filing a Pitchess motion challenging lewd conduct charges could grant access to officer personnel records. This evidence is crucial in assessing the credibility and validity of the charge.

It is not uncommon for the district attorney to propose plea deals. He/she will require you to agree to plead guilty to a lesser offense in exchange for dropping more serious charges. This negotiation process is a standard practice in criminal cases and can lead to an acceptable resolution for both parties.

Disturbing the peace (Penal Code 415) and trespassing (Penal Code 602) are examples of lesser offenses that could be considered in plea negotiations. These charges are generally less severe than lewd conduct and carry lesser penalties.

Consult your criminal defense attorney when deciding whether to accept a plea deal. He/she can evaluate the strengths and weaknesses of your case, the evidence against you, and the potential outcomes of different legal strategies. Ultimately, the goal is to reach an outcome that minimizes its impact on you while considering the circumstances of the case.

Defenses You Can Raise in a Lewd Conduct Case

You have a range of defenses to contest the lewd conduct charges. These include, but are not limited to, the following:

     a) You Did Not Engage in Lewd Conduct

Although you could be factually innocent, it is the prosecution's responsibility to prove that you engaged in lewd conduct. The presumption of innocence prevails until proven otherwise. This implies that, as the accused, you are considered innocent unless the prosecution can furnish compelling evidence demonstrating your participation in the purported lewd conduct.

Your defense attorney will diligently challenge and scrutinize the prosecution's evidence, ensuring a meticulous examination of the facts to uphold your presumption of innocence.

     b) You Did Not Act With for Sexual Gratification When You Touched Yourself

Your defense could revolve around the argument that the acknowledged touching was a necessary or inadvertent action. Any interpretation of it as sexual gratification is a misunderstanding. Emphasizing the importance of context and intent, this defense asserts that the act was not motivated by a desire for sexual pleasure but could have been accidental or had a different purpose. The aim is to challenge the prosecution's assertion that the touching was explicitly for sexual gratification and to cast doubt on the true nature of the actions in question.

Examples such as soothing an itch, cleaning one's genitals, or engaging in personal hygiene, like touching oneself in a bathroom stall, are cited to illustrate routine, non-sexual behaviors that may involve touching but are not motivated by a desire for sexual gratification. This serves to reinforce the argument that context plays a crucial role in evaluating the nature of conduct.

     c) A Reasonable Belief No One Was Around

Lewd conduct charges typically require the presence of a third party who might be offended by the alleged behavior. This underscores that the conduct is considered offensive or inappropriate in a public setting, affecting individuals beyond the direct participants. You can challenge the charges by asserting the absence of a third party during the alleged lewd conduct. This defense strategy highlights the lack of a witness who could potentially be offended, disputing a crucial element of the charges. By stating that the conduct occurred in a situation where there was no one to witness or be affected by it, you aim to undermine the prosecution's case and cast doubt on the validity of the charges. However, keep in mind that legal strategies may vary based on jurisdiction, and it's essential to consult with a qualified attorney for advice tailored to your specific circumstances and local laws.

     d) You Were Not in Public View or in a Public Location

This defense asserts that the alleged lewd conduct did not happen in a public or publicly accessible place. By emphasizing the private setting where the behavior occurred, you aim to challenge an essential aspect of lewd conduct charges. The argument is centered on the idea that engaging in sexual activity within a private space, not open to public view, falls outside the scope of lewd conduct. This reasoning is based on establishing a reasonable expectation of privacy and pointing out the absence of a public context or visibility. By highlighting these factors, you seek to cast doubt on the appropriateness of the charges, asserting that the conduct in question doesn't align with the legal definitions of lewd behavior.

     e) You are a Victim of Entrapment

If you claim entrapment as a defense, you're essentially asserting that law enforcement coerced you into committing a crime you wouldn't have otherwise committed. This legal tactic hinges on the idea that officers' actions led to the commission of the alleged offense.

For a successful entrapment defense, you typically need to establish two crucial elements:

  • Inducement — You must demonstrate that law enforcement officers or their agents induced or persuaded you to commit the crime. This inducement involves some form of pressure, coercion, or encouragement that surpasses normal levels in similar situations.
  • Lack of Predisposition — It is essential to show that you were not predisposed to commit the crime before the alleged inducement. Proving that you were not inclined or prepared to engage in criminal conduct without the involvement of law enforcement significantly bolsters the entrapment defense.

In essence, the entrapment defense aims to shift the focus from your actions to the conduct of law enforcement. It argues that authorities created a situation where an individual who wouldn't have otherwise committed the crime did so due to their inducement.

Documentation of interactions with law enforcement, such as recorded conversations, surveillance footage, or witness testimonies, can be valuable to support your entrapment defense. Additionally, any evidence indicating a lack of predisposition on your part before the alleged inducement can strengthen your case.

     f) You Were Mistakenly Identified

If you're employing the mistaken identity defense in a lewd conduct case, you're essentially asserting that you were wrongfully identified as the person engaging in the alleged lewd behavior. This defense strategy is based on the claim that someone else committed the act, and you were mistakenly identified as the perpetrator.

For the mistaken identity defense to be effective, consider the following key points:

  • Alibi: Provide evidence of your whereabouts during the time of the alleged lewd conduct. This could include witness statements, surveillance footage, or any other documentation proving you were not present at the location of the incident.
  • Witness Testimonies: Gather statements from individuals who can confirm your identity and testify that you were not involved in the lewd conduct. This may include friends, family members, or others who can vouch for your innocence.
  • Inconsistencies in Identification: Scrutinize the identification process, primarily if it relies on witness descriptions or other subjective factors. Look for inconsistencies that may raise doubts about the accuracy of the identification.
  • Physical Evidence: If possible, present any physical evidence that contradicts the allegations. This could include DNA, fingerprints, or other forensic evidence that does not match your profile.

By building a robust mistaken identity defense, you aim to cast doubt on the accuracy of the identification and create a reasonable belief that you were not the individual involved in the lewd conduct.

Penalties if Convicted of Engaging in Lewd Conduct

A violation of PC 647(a) is a misdemeanor. A conviction for the offense results in the following penalties:

  • A jail sentence of up to 6 months
  • A maximum fine of $1,000
  • Probation instead of jail time

In a plea deal, prosecutors could suggest indecent exposure as an alternate charge. They could ask you to plead guilty in exchange for dropping lewd conduct charges. However, indecent exposure mandates sex offender registration. If you agree to the plea deal and plead guilty to indecent exposure, you will be required to register as a sex offender. This is a significant factor to consider, and individuals should fully grasp the potential implications before accepting this agreement.

Implications of a Conviction

A conviction for lewd conduct carries significant repercussions, encompassing financial penalties, potential imprisonment, and enduring social stigma. The financial aspect involves court-imposed fines, the extent of which hinges on jurisdictional factors and the gravity of the offense. Simultaneously, the possibility of incarceration looms, contingent on the severity of the conduct and any prior criminal record.

The repercussions extend beyond legal ramifications to the societal realm, where the stigma attached to a lewd conduct conviction can lead to judgment and exclusion. Reintegrating into the community becomes a formidable challenge, with potential consequences affecting personal relationships and professional opportunities.

Navigating the aftermath of a lewd conduct conviction involves confronting social prejudices and re-establishing trust within the community. Employment prospects may be hindered as potential employers may doubt individuals with such legal histories.

Find a Criminal Defense Attorney Near Me

Getting a skilled criminal defense attorney is key to navigating and potentially lessening the consequences tied to a lewd conduct charge. A capable attorney can use diverse strategies to craft a robust defense tailored to the unique circumstances of your case.

In the initial phase, the attorney will scrutinize the evidence against you, assessing its strength and identifying avenues to challenge the charges. Defenses like mistaken identity, lack of intent, or even entrapment may be explored depending on the specifics of your situation.

Moreover, a seasoned attorney can enter into negotiations with the prosecution, seeking reduced charges or alternative dispositions that could minimize the impact on your record and life. This might involve exploring plea bargains where you agree to plead guilty to a lesser offense.

If the case proceeds to trial, your defense attorney will vigorously advocate for you, challenging the prosecution's case and presenting evidence to bolster your innocence or cast reasonable doubt. Contact the Bakersfield team at California Criminal Lawyer Group today at 661-750-8230.