by Clay White
Indecent exposure is the intentional exposure of one’s private parts in public. Laws prohibiting indecent exposure vary throughout the country, but share many similarities.
What Does the Prosecutor Have to Prove?
In order to secure a conviction for indecent exposure, the prosecutor must produce evidence sufficient to prove to a judge or jury, beyond a reasonable doubt, the existence of specific components of the offense. These components, called the “elements” of the offense, vary by state, but usually include the following:
- Exposure of private body parts. Whether a state’s law uses the term “private parts” or some other term, it usually refers to male and female genitals, male and female buttocks, and female breasts. However, exposure of the buttocks alone is not sufficient in some states.
- Exposure that is willful. This means the person must intend the exposure of private parts. For example, if a person jumps into a swimming pool and the force of the water on the bathing suit causes an accidental and unintended exposure, this requirement would not be satisfied.
- Exposure in a public place. Retail establishments and outdoor areas, whether publicly or privately owned, are examples of public places. A bedroom inside a home, not visible to those outside the home, is an example of a place that is not a public place. Other examples are explained below.
- Exposure in the presence of another. To be guilty of this offense, another person must have been within sight. Some states require that the other person be a member of the opposite sex.
Various states have modified these traditional requirements in a number of ways. Some of these modifications are discussed below.
What Is a “Public Place?"
While this definition varies by state, exposure in places accessible to the general public, such as roads, stores, parks, and restaurants certainly falls within the public place requirement. Moreover, exposure in other environments not open to the general public, such as jails and hospitals, may suffice. In fact, in many states, exposure in any place visible to the public is sufficient to satisfy this element of indecent exposure. For example, exposure inside an automobile, which is visible to someone outside the automobile, is sufficient. Similarly, exposure inside a private home may meet the public place requirement if persons outside the home can observe the exposure.
What if No One Sees the Defendant’s Private Parts?
In many states, the law does not require actual observation of the defendant’s private parts. Rather, the law considers whether a reasonable person should have known the act of exposure would be open to observation by others. For example, if a defendant exposes him or herslef in the presence of a third person, who sees the act occurring but turns away to avoid the sight, the act of exposure may be enough for conviction.
When Is Public Exposure a Felony?
Conviction of a first offense for indecent exposure is usually a misdemeanor. However, repeat misdemeanor offenses can result in a felony conviction. The number of prior convictions that will trigger a felony charge for a subsequent offense varies by state.
Also, many states pass statutes specifically addressing exposure to children. These statutes protect children under a certain age, which also varies by state. The consequences for exposure to children are often harsher than for exposure to adults.
A number of defenses are commonly raised by those charged with indecent exposure.
The viewer’s consent
Some states permit one person to consent to the nudity of another person. However, even with the consent of one person, a conviction can result if the exposure occurs in the presence of a third person who does not consent. For example, two people might consent to one another’s exposure while committing a sexual act in public, but both could be charged with indecent exposure if they commit the act in the presence of a third person who does not consent.
COMMERCIAL NUDE DANCING
Nude dancing is a highly regulated activity across the United States. States, counties, and municipalities may all enact laws or regulations that specify under what circumstances nude dancing is permitted. When clubs and performers adhere to the rules, they avoid prosecution for indecent exposure on the grounds that the patrons’ knowing and voluntary presence in the club constitutes consent to the exposure. But if applicable laws prohibit nude dancing, arguing that the patrons obviously consented will usually not be a defense.
Lack of sexual motivation
Some indecent exposure laws require that the defendant have a sexual motivation, also called “lascivious intent." Under such a statute, a person who urinates in public, for example, without the intent to arouse sexual desire or gratification, would not be guilty of indecent exposure.
Lack of intent to expose to third parties
A person might create an inadvertent and unintentional exposure from a location that is usually private, such as a home or hotel room. For example, dressing in a bathroom without knowledge that a window curtain is open, thereby creating visibility to someone outside the room, might show a lack of intent by the defendant.
To learn more about common defenses to indecent exposure, see our article onWrongful Accusations of Indecent Exposure.
Someone convicted of felony indecent exposure can be subjected to any or all of the following penalties:
- Incarceration. Sentences may involve time in the county jail, or one or more years in state prison, depending on the state. The judge may require that the entire sentence be served in jail.
- Fines. Courts impose fines to penalize defendants. These fines also help defray the cost of maintaining the criminal justice system. Fines vary depending on the circumstances, but usually start at $1,000.
- Probation. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling.
- Community service. Courts often include as a part of probation the requirement that the defendant volunteer for a specified number of hours with court-approved organizations, such as charities.
- Sexual offender registry. Some states require registration on a sexual offender registry after conviction for indecent exposure.
See a Lawyer
If you are facing a charge of felony indecent exposure, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses you might have. For example, if you believe that your exposure was not sexually motivated, you’ll need to know whether your state’s law has this requirement, as explained above.
A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of felony indecent exposure charges to misdemeanor charges, and can result in lower fines. A lawyer also can sometimes assist with reaching a plea agreement, which eliminates the requirement that the defendant register as a sexual offender. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer on your side will be essential.