It is a crime to commit lewd acts in public, which means lewdness committed in public view or in the presence of other people who might be offended.
California Penal Code 647(a) PC describes lewd conduct in public as touching yourself or another person's genitals, buttocks, or female breast to gratify a sexual desire when you knew, or should have known, that others were present that could be offended by your conduct.
Under this sexual-related law, it's also a crime for someone to solicit lewd conduct in a public place, and it prohibits both participating in and solicitation of lewd conduct.
Lewd acts are described as inappropriate sexual activity in public places for sexual gratification or to offend. There are many lewd conduct arrests due to undercover sting operations by police who pose as decoys seeking sexual activity in a public bathroom.
Lewd conduct cases typically include sexual activity in a public place, public masturbation, or exposing yourself in public; the intimate body consists of any portion of the genitals, the anus, or female breasts.
A public place is "any place open to the public or exposed to public view" and includes any of the following locations:
- city parks,
- parking lots,
- public bathrooms,
- car parked on a public street,
- common hallway at an apartment complex,
- street alley.
PC 647(a) is a misdemeanor offense punishable by fines of up to $1000 and up to 6 months in jail and does NOT require PC 290 sex offender registration. Our California sex crime defense attorneys will examine this topic further below.
Real Case Example
I've handled many of these cases, and usually, the police and prosecutors need to prove that someone saw the individual being charged either having sex or, if it's lewd conduct, that they saw some body part.
I had one case where two people were in a car, and one claimed that the other tried to rape them, and they both agreed that they had been having sex in a car, and the police pulled up and ended up arresting my client.
It turned out that the rape allegation was unfounded, that he wasn't trying to rape anybody, but they were still trying to get him for lewd conduct under the premise that they both acknowledged that they were having sex in a car in a public parking lot.
The only problem, and how we could get the case dismissed, was that nobody else saw it. It was just the two of them that saw it. The police didn't see anything.
They had already put their clothes on. What ended up happening is that the case ended up getting dismissed, and that was the end of it. So, that gives you an idea of a potential defense in lewd conduct or having sex in a public case.
But in many of these cases, the police are the witnesses, where they see the people with no clothes on. If that happens, the police can certainly be a witness in a criminal case.
They're the best witnesses for the prosecutors because they usually show up and stick with the story versus civilians who often don't show up, don't cooperate, and change their story around so a defense attorney like me can attack the report and undermine it.
What Are Some Related Crimes?
- Indecent exposure - Penal Code 314 PC;
- Lewd acts with a minor - Penal Code 288 PC;
- Peeping tom offenses - Penal Code 647i, 647j PC;
- Loitering around an open toilet - Penal Code 647(d) PC;
- Disturbing the peace - Penal Code 415 PC.
Is There a Defense for Having Sex in a Public Place?
So, suppose you or a loved one is charged with lewd conduct/having sex in public. In that case, you want to get an attorney like me because the problem is that you can end up with a conviction for a sex crime, and depending on what happened and what evidence the prosecutors have, they can try to make you register as a sex offender. Nobody wants that.
Even under the three-tier system, which is 10, 20, or lifetime registration, you don't want to have that on your record. You don't want to have the responsibility to register as a sex offender every year within five days of your birthday. Some common defenses may include but are not limited to:
- You weren't in a public setting or had a reasonable expectation of privacy. Perhaps we can argue the activity was not in public view:
- You didn't touch yourself or somebody else for sexual arousal. Perhaps we can argue that you felt your privates in public, but it was not for sexual gratification or to offend;
- You had a reasonable belief nobody was present who could be offended. Perhaps we can make this argument to challenge the requirement that you should have known somebody would be offended.
- You are the victim of entrapment by law enforcement. Sting operations with law enforcement have officers pretending to be seeking sex. Perhaps we can argue they persuaded you to commit a crime you would have otherwise not committed.
Further, we might be able to negotiate with the prosecutor to avoid the formal filing of criminal charges before the first court date (DA reject).
Perhaps we can argue that you were falsely accused and wrongfully arrested. In some cases, you might be eligible for a diversion program that could avoid a criminal conviction and keep a clean record.
So, when it comes to a sex crime, you want to have a criminal defense attorney. I've been doing this now for approximately 30 years. I started working for the District Attorney's office in LA County; then worked for a superior court judge. Then finally, in 1994, I put out my shingle and decided to try to be the best criminal defense attorney I could be.
I have a lot of experience dealing with these types of cases. I have a lot of experience defending these cases and mitigating these cases depending on what the situation is and what's going on.
Pick up the phone now. Ask for a meeting with Ron Hedding. I stand at the ready to help you. The Los Angeles-based Hedding Law Firm offers a free case review by phone or use the contact form.