Certain acts are only appropriate when done in private. Engaging in lewd behavior in public is considered illegal under California law. Generally, lewd conduct refers to touching oneself or another person for sexual pleasure or arousal. Being convicted of a misdemeanor, for instance, can have long-term consequences on your criminal record. Therefore, it’s crucial that you promptly seek the advice of an experienced attorney like the California Criminal Lawyer Group to protect your rights against self-incrimination. If you’re facing charges of lewd conduct, our team of Fresno lawyers is ready to provide you with the necessary legal support.

Understanding Lewd Conduct Under California Law

The legislation against lewd conduct is PC 647(a). Lewd conduct laws are violated when:

  • The defendant either participates in something themselves or asks someone else to participate in it
  • The accused engages in lewd or dissolute conduct
  • It occurs in a public space or any location that is visible or accessible to the general public

To find a defendant guilty of violating the provisions of PC 647a, the prosecutor has to establish each of the following elements of the crime beyond any reasonable doubt:

  • The defendant intentionally touched a female's breast, genitalia, or their buttocks, or the buttocks of another person
  • The defendant intended to offend or irritate others, as well as sexually pleasure or stimulate themselves or another person
  • The defendant committed the offense in a public place or an area accessible to the public
  • Another individual was present who might have been harmed or insulted
  • The defendant should have known, or at least been aware, that there was another person present whose actions might have harmed

Elements of the Crime

Here is a summary of the elements mentioned above to help you better understand the definition:

Lewd or Dissolute Conduct

The terms "lewd" and "dissolute" have the same connotation in this context. They refer to engaging in sexual acts involving caressing a woman's breasts, genitalia, or buttocks to arouse, satisfy, offend, or irritate her sexually.

Willful Act

The term "willful act" describes the intention or readiness to act without necessarily having the goal of breaking the law, gaining an advantage, or hurting someone else.

Intention to Arouse or Irritate

The relevant law does not include any language regarding intent. It simply prohibits lewd or dissolute behavior. However, when it comes to the traditional interpretation of "lewd," courts have understood it to refer to sexual behavior.

Furthermore, courts have stated that the evaluation is based on whether a reasonable person would reasonably understand that their actions are prohibited. That means any behavior that is not intended to irritate or sexually arouse someone is not prohibited by the statute. If you can demonstrate an innocent reason for the behavior, it is imperative.

The prosecution is responsible for providing proof of your unlawful purpose. However, if the facts of the case need to demonstrate your aim, it can be challenging for the prosecution to handle.

It Offended Third Parties

Engaging in sexual activity in public is not inherently illegal. However, a defendant may be found guilty of an offense if they engage in such behavior in the presence of another person who would be offended and if they knew or reasonably should have known it to be unlawful.

The Supreme Court asserts that PC 647a aims to safeguard bystanders who might find the behavior in question offensive. This means that as long as no one present feels offended, the government has no interest in criminalizing the behavior, even if it takes place in a technically public setting.

It is important to note that it's not just about the possibility of someone seeing you. However, there should be a genuine chance that someone else is present. As a result, many defendants who are falsely accused of immoral or obscene behavior are innocent. Despite engaging in public sexual behavior, they had a reasonable belief that:

  • They would not be visible to anyone else
  • No one could be outraged by the sexual activity they witnessed

Public Location

To violate PC 647a, lewd behavior should occur in an area visible to the public or a venue accessible to the public.

One can interpret the term "public" in various ways. Generally, public spaces include:

  • A vehicle parked in the middle of a busy street
  • A massage establishment
  • A building's hallway
  • A bookstore for adults featuring movie booths

Your workplace, home, or hotel room is not considered a public space. However, if any of these areas are visible to the public, it could be considered a violation of PC 647a. Therefore, engaging in sexual behavior in a private setting with your curtains or blinds open could be illegal.

Penalties For Lewd Conduct Charges

Lewd conduct is considered a California misdemeanor and is subject to various punishments, which may include:

  • Fines not exceeding $1,000
  • Up to six months in prison

In addition, the judge may choose to impose one-time, informal, or summary probation. Probation usually includes requirements such as AIDS testing, counseling, staying away from certain locations, and payment of fines.

It is worth noting that a conviction under PC 647a does not automatically require the defendant to register as a sex offender. However, in most cases, it is charged alongside indecent exposure, which does require registration as a sexual offender. If you plead guilty to indecent exposure, the prosecutor may agree to dismiss the PC 647a charges.

In this situation, most people will likely feel compelled to take the deal due to their fear of facing unfavorable consequences such as going to trial, being found guilty, and having to register as sex offenders.

Sting Operations For Lewd Conduct

In sting operations, an undercover law enforcement officer often poses as a gay male who is out on the town.

There are occasions when sting investigations require law enforcement to monitor specific public areas. For instance, in a secluded section of a park, two individuals may be engaging in inappropriate behavior in a bush. Unknown to them, the police have been surveilling the area for such activities. The individuals are caught in the act when the police swiftly approach and apprehend them.

The two individuals in the scenario believed that their actions in a public place would not be offensive or against the law. They thought that engaging in intercourse in a public setting did not constitute a violation.

Common Locations for Sting Operations

Undercover sting operations typically arise from concerns and complaints raised by locals who object to LGBT individuals loitering and engaging in public cruising. The following locations are commonly targeted for undercover stings:

  • Public recreation areas
  • Restrooms, especially those in parks and seaside areas
  • Retail centers
  • Alleys
  • Gyms
  • Adult bookstores

Stalking activities are frequently carried out in the listed locations, but they can happen anywhere. Upon arrival, most offenders placed under custody were not seeking a hookup or a cruise; instead, they unknowingly fell into the trap.

Undercover cops are individuals who work covertly, but it's important to note that they are not inherently dishonest or lacking in intelligence. While driving, they may sometimes exhibit behavior that appears obtrusive. However, if you have any suspicions or concerns, it is advised to prioritize your safety and leave the situation without investigating further or engaging with the officer.

What To Do If You're Arrested for Lewd Conduct Charges

Sometimes, when making PC 647(a) claims against you, the police officer who arrested you will simply give you a citation to appear in court. Other times, they may take you into custody, obtain your fingerprints, book you, and then release you with a citation.

It is advisable to speak with a criminal defense attorney right away in both situations. There will likely be a pause in the proceedings between your arrest and the district attorney's (DA) analysis of your case before official charges are filed. During this interim period, your lawyer should be able to meet with the district attorney and persuade them not to file charges against you. Lewd behavior is considered a misdemeanor. Therefore, if you hire an attorney, you will likely not have to appear in court.

Your lawyer will also examine the region. They will conduct a Pitchess motion to investigate and review the background of the arresting police officers. Additionally, they will attempt to obtain statements from other suspects who were taken into custody during the sting operation. By doing so, they aim to identify any weaknesses in the prosecution's case and work towards having your charges dropped.

Sometimes, the prosecutor may agree to dismiss your case if you enter a plea deal for a less serious offense. The two most common charges in such cases are trespassing and disturbing the peace. Furthermore, many defendants who opt for trial choose these charges because they do not carry the stigma of a sexual crime conviction.

If the negotiations with the prosecution are unsuccessful, the matter will go to trial. The defendant will likely be found not guilty at trial.

Legal Defenses to Allegations of Lewd Conduct

The defenses to PC 647(a) accusations will depend on the circumstances of the case. A skilled criminal defense lawyer should be able to employ one of two strategies:

You Did Not Engage in the Behavior for Which You Are Suspected

A person is only guilty if they are proven guilty of what the police are claiming they did. As previously mentioned, it’s the prosecutor's responsibility to provide evidence that the defendant committed the crime of indecent conduct.

You Knew That Nobody Would Be Bothered

To avoid being held guilty of breaking PC 647a, it is important to know or reasonably anticipate that someone would witness your actions and become enraged. If you engage in intercourse in a structure or behind bushes where a barrier has been intentionally removed for observation, you may have a reasonable expectation of not being seen.

The Accused Touched Themselves, But Not For Sexual Gratification

The prosecution's primary burden of proof is to demonstrate beyond any reasonable doubt that you intended to participate in the act in a way that was sexually stimulating, bothersome, offensive, and satisfying. Therefore, a criminal defense lawyer might raise the absence of intent as a counterargument to the allegations if the accused person had no intention of engaging in the action in that manner.

Let's say, for example, that you have been surfing all day and are planning to meet your partner later on. However, you become disoriented and fail to make it home in time. As a result, you decide to change into new clothes inside your car, which is parked in the beach parking lot.

A minor and his or her parents are loading up their car a few meters away when the minor notices you. The parent reports you to the police, believing you are masturbating in public. The prosecution would find it challenging to prove that your actions were motivated by a desire to please, arouse yourself, or irritate someone else in these situations.

The Police Act Improperly or Use Entrapment

Entrapment laws prohibit law enforcement officials from pressuring law-abiding individuals into committing an offense they would not have otherwise agreed to. This includes tactics such as coercion, flattery, harassment, threats, or fraud.

Proving entrapment can be quite challenging. If certain undercover police officers are being wiretapped, your conversations could be subpoenaed. If witnesses saw or heard the aggressive behavior between you and the police and can testify to it, you could have a strong legal case.

Entrapment does not involve offering an opportunity to commit a crime or initiating criminal activity. Therefore, whether a sting operation constitutes entrapment will ultimately depend on the specific facts of the case. If an undercover police officer persistently engages you in inappropriate behavior or if the law enforcement officer is using you for personal gratification, you could have a solid case.

You Were Not in a Public Space or an Area Visible to the Public

If sexual behavior takes place on private land where no one can observe it, it is not considered illegal. This means that engaging in sexual activities in a private setting, like your house or hotel room, is not considered lewd behavior. However, if you engage in sexual activities in a public setting, such as a massage parlor or in your car on a street, it can be seen as public indecency. If you have a skilled criminal defense attorney, they should be able to demonstrate that you made efforts to conceal your actions, even if they were observed.

It Was Inadvertently Touching

In public, you are not held liable for violating PC 647a if you inadvertently touch someone else's or your private area. For instance, let's say you're playing football in a park that is open to everyone, and you accidentally touch your opponent's crotch area while reaching for their flag. In such a case, you cannot be convicted of PC 647a violation because the contact was not intended.

Crimes Related To Lewd Conduct

You can face lewd conduct charges in addition to, or instead of, the following offenses:

Statutory Rape

PC 261. 5 states that it is illegal to engage in sexual activity with a minor under the age of eighteen. Statutory rape is considered a wobbler crime in California, meaning it can be charged as either a felony or a misdemeanor, depending on the specific circumstances.

The age gap between the defendant and the youngster is a significant factor to consider. If the victim is under sixteen and the offender is twenty-one or older, the sentence is likely to be more severe, potentially resulting in a maximum of four years in jail.

If you engage in sexual activity with a minor under the age of eighteen, you are required to register as a sex offender. Additionally, you can be subject to civil fines ranging from $25,000 to $250,000.

Peeping Tom Law Violations

Both PC 647 (i) and (j) are distinct forms of disruptive behavior under PC 647. These statutes, similar to PC 647(a), aim to protect third parties from sexually offensive behavior. However, behavior under sections (j) and (i) is conducted in secret, as opposed to lewd behavior in public.

Commonly referred to as unauthorized peeking or peaking while loitering, PC 647(i), it is against the law to peer into the door or window of an occupied building when you are lingering on private property without a legitimate conversation with the owner or inhabitant.

Conversely, California PC 647j is a criminal code that prohibits invasions of privacy. It is illegal to use a camera or any other device to secretly view or photograph another person's body without their consent.

Peeping Tom legislation violations are often prosecuted as misdemeanors.

You could encounter the following consequences:

  • Six months behind bars
  • Fines not exceeding one thousand dollars
  • Informal probation

If you violate the privacy of a minor or are a repeat offender, you will face more severe penalties.

Lewd Behavior with an Underage Person

PC 288 refers to lewd conduct with a minor. It is also known as lewd behavior toward children under the age of fourteen, lewd behavior with children, or acts of lascivious or lewd behavior.

It is important to remember that PC 288 and PC 647(a) are distinct offenses. The latter prohibits behaviors such as touching oneself or another in public. On the other hand, PC 288 specifically prohibits making sexual contact with a minor's body. It is worth noting that the location of the offense is not restricted.

PC 288 instances typically involve acts of child molestation. In other words, it refers to contacting a minor or inviting a minor to contact one's genital organs. Whether the contact is on the minor's exposed skin or through clothing, touching a child's body part for sexual purposes could lead to charges under PC 288.

Violating PC 299 is considered a California felony. The punishment for this offense varies depending on the minor's age and the defendant's prior criminal history, ranging from probation to a life sentence. Furthermore, if found guilty, you will be required to register as a sexual offender.

Indecent Exposure

Occasionally, a prosecutor may choose to pursue a charge of indecent exposure alongside PC 647(a). A conviction under PC 314 can have serious consequences, as it may result in being listed as a sexual offender indefinitely. This involves the deliberate act of exposing one's genitals in front of someone who may find it offensive.

Trespassing

Sometimes, the prosecution might be hesitant to completely drop a charge under PC 647a. Instead, as part of a plea deal, they may reduce it to a lesser offense such as PC 602. PC 602 states that it is illegal to enter someone else's property without permission.

Many individuals opt for a plea deal for PC 602, even though this crime is unrelated to PC 647a because it carries less stigma on their criminal record. Additionally, PC 602 can be prosecuted as either a misdemeanor or an infraction. It's worth noting that loitering near an open restroom with the intent to engage in or encourage obscene behavior (PC 647d) is considered a transgression and does not result in a criminal history.

The provisions of PC 647d are specific. It prohibits lingering in a public restroom to solicit or participate in any obscene, illicit, or lascivious act. However, that does not imply that someone cannot lawfully be near a public restroom. Only when someone's actions indicate that they plan to solicit or engage in obscene acts is their behavior considered a violation under this regulation.

Misdemeanor 647d is classified as such. PC 647(a) is comparable to it in terms of penalties and legal defenses.

Disturbing the Peace

California PC 415, which deals with disturbing the peace, is another offense that is subject to a plea agreement. This statute explicitly prohibits the following actions:

  • Engage in a public altercation with another person
  • Creating extraneous noise that annoys your neighbors
  • Use derogatory language in public

Similar to trespassing, PC 415 is unrelated to California PC 647a. However, it carries a less severe penalty and is not as stigmatized. Additionally, an infraction does not result in a criminal history.

Find a Fresno Criminal Attorney Near Me

Engaging in sexual activity in a park or behind a lavatory may seem amusing at the moment, but it is important to note that it is against the law. While you may not have to register as a sex offender, engaging in lewd conduct in public is illegal and carries serious long-term penalties. In addition to the shame associated with such a crime, prosecutors often vigorously prosecute these cases.

Therefore, you should consider consulting with a lawyer who can defend you. If you have been charged or arrested for engaging in lewd conduct, you can get in touch with the California Criminal Lawyer Group. Our Fresno attorneys will provide guidance and put up a solid defense to refute the accusations. Call us at 559-712-8377.