Most people engage in public indecency to show affection or desire for each other or the simple fun of it. In other cases, it is a consequence of a dare, most likely through an act intended to cause mild embarrassment. However, some of these actions violate the law. California Penal Code 647(a) makes it a crime to engage in lewd conduct. These acts are legal when done in private establishments. However, in public or in places that are accessible to the public, they are illegal. This legislation aims to ensure that people uphold common courtesy and are not allowed to act in ways in public spaces where they could offend or harm the feelings of others.

You owe it to yourself, as well, to learn what amounts to lewd behavior and when seemingly okay behavior turns into a crime. Below, we describe the crime defined by California law, what penalties you will face if a jury convicts you, and what defenses our attorneys at Monterey Criminal Attorney can use on your behalf for defending criminal charges against you.

Lewd Conduct as Described Under California Law, PC 647

Penal Code 647(a) defines lewd conduct as the willful touching of one’s own or another person's genitals, buttocks, or female breasts for purposes of sexual arousal or gratification to annoy or offend another in a public or easily accessible place. You must carry out this act, knowing full well that it might offend someone else. Only then is it a crime. Under PC 647(a), if lewd conduct occurs anywhere that is in or near a public area, including somewhere as secluded or private-sounding as your vehicle parked on the side of an empty street where others could get into it, it counts.

The following are considered lewd conduct:

  • Public display of your genitalia, buttocks, and female breasts.

  • Sexual activity in a public setting or one that is open to the public.

  • Masturbating yourself or others in a secluded place or public area.

  • Putting your hand on someone's genitals.

  • Touching a woman’s breasts.

Facts that Prosecutors Must Establish

Prosecutors must demonstrate five elements to prove you engaged in lewd conduct in public. They must prove the following beyond a reasonable doubt:

  • Intentional touching — You intentionally touched your or another person’s breasts, buttocks, or genitalia.

  • Your intention — Your actions aimed to satisfy your sexual desires or those of someone else, or to annoy or offend someone else.

  • Public setting — You committed the act in a public place or somewhere accessible or visible to the public.

  • Presence of other people — There could have been one more person at your location who did or could have taken offense.

  • Awareness — You should have been reasonably aware that someone who could be offended was present.

Let us look at each element closely.

Intentional Touching

Primarily, the touching has to be done consciously. Prosecutors must show that you engaged in lewd conduct purposefully and while being fully aware of your actions. Therefore, your actions should not be accidental. If you accidentally touched another person, the jury could find you not guilty of the offense.

Your Intention When Engaging in the Lewd Conduct

The intention behind the touching is a critical factor in determining whether the behavior qualifies as lewd. The law focuses on the following as the basis of intention when engaging in lewd behavior:

  • Sexual satisfaction — If you use your hands to penetrate your private or someone else’s private areas to elicit sexual pleasure or sexual arousal, then the act is considered lewd. Your aim to arouse or fulfill sexual needs in this situation is apparent. Thus, the activity is undoubtedly sexual.

  • Annoyance — You might also touch a person to irritate them. In this case, you are seeking to provoke a state of discomfort or rash irritation rather than sexual arousal. Therefore, if the touch is not aimed at a sexual act, yet the person’s purpose is to elicit an adverse response or interfere with others, then the conduct constitutes lewdness, mainly if it occurs in public or open areas.

  • Offending another — You can also touch with the intent of being a nuisance to the people around you. This involves touching in a manner you know or should reasonably expect will upset or shock people around you. Prosecutors must demonstrate that you intended to cause discomfort or anger.

Public Locations

Public places include roads, parks, and malls. They are accessible to individuals within the community and allow people to freely move about and interact with others.

In addition to these common public areas, a place open to the public also qualifies. This includes restaurants, the theater, or a mall where people can access. These locations are designed to accommodate and serve the public. Thus, the public is subjected to regulations concerning public behavior when accessing these locations.

Furthermore, a place that would be visible to the public also counts. This applies to areas where other people can observe your activities, even though access to these places could be restricted to the public. For example, if you have sex on a balcony or in a private hotel room that the public can see through when the curtains are drawn, you will likely face lewd behavior charges.

There are locations that, although legally private, may be considered public. Among them are:

  • Massage parlors — Despite appearing to be a private space, a massage parlor is accessible to the public and hence falls under the public spaces category.

  • A hallway in an apartment building — Despite being inside residential buildings, these spaces are accessible to both inhabitants and guests and are, therefore, legally recognized as public domains.

  • A private viewing area within a business selling adult content — Even if it is a private location, it is still public because it is part of the establishment.

  • A vehicle parked in a common area — A vehicle's interior, even if it is locked and to some extent obscured to the public if tinted or covered, is nevertheless regarded as a public space. It is often deemed so because the vehicle is in a public parking space.

The Presence of a Third Party

Due to legal requirements, it becomes illegal to engage in sexual activities if you reasonably believe that someone else is watching your behavior and could be offended. The key aspect under consideration is the requirement of awareness or reasonable foresight regarding the presence and potential reaction of others.

While having sex in public is not inherently illegal, it becomes a crime when you fail to consider whether it would offend someone else nearby. This means that if you are in an area where people can see you, you are subject to the risk that someone else will notice you and take offense at what they see or feel as "immodest."

In light of this, we must concentrate on awareness, or, as the law states, "reasonable expectation." If you act in this manner without considering whether a bystander would find it objectionable, you will violate laws intended to protect public decency and morality. The offense lies not just in the act but in disregarding the potential impact on those around you.

How Sting Operations Lead to Lewd Behavior Charges

Notably, using sting operations often leads to accusations of inappropriate behavior. The government uses these operations to arrest people engaged in illegal activity on publicly accessible property. Law enforcement officials set up situations where the suspect believes he/she is alone so they can monitor the sexual conduct and develop a case against the suspect.

Undercover agents or informants pose as operation participants or simple observers. They go to places where illegal behavior is suspected to occur. Common areas include parks, public restrooms, and bookstores that sell adult publications. The officers then interact with the suspect in a manner that provokes the suspect to reveal their objectives. Whenever the suspects execute these intentions, the officers arrest them, taking pictures to support lewd behavior allegations.

Sting operations seek to arrest offenders in these acts to ensure the officers get substantive evidence of the illegality. This helps guarantee that individuals are tried specifically for the above mentioned acts and deters others from copying them. Furthermore, because sting operations increase the likelihood of an arrest and subsequent punishment, they preserve public decency and order.

However, the law sets out how these operations ought to be conducted. Police work has regular procedures that must be met to prevent wrongfully leading someone or forcing him/her into engaging in lewd conduct he/she would otherwise not be a part of. The officers’ efforts become entrapment if they violate this legal requirement. You can establish entrapment if, for instance, you can prove that the officers forced you into engaging in lewd conduct. This defense postulates that you would not have participated in the conduct or continued to do so had the police not coerced or enticed you to do so.

Penalties for Lewd Conduct

The punishments that you will be subjected to upon being convicted of engaging in lewd conduct are based on the circumstances surrounding the case and other prior convictions on your record.

Lewd conduct is a misdemeanor offense. If you are convicted, you could be subjected to:

  • A maximum fine of $1,000.

  • Up to six months in county jail or both.

  • Probation instead of jail time — You will be required to engage in community service or attend therapy sessions.

If you are convicted of lewd behavior charges, you will not be required to register as a sex offender. There is, however, often an accompanying indecent exposure along with an obscene conduct charge, which does require you to register as a sex offender. If you enter a guilty plea to the indecent exposure charge, they often agree to drop the lewd conduct allegation. In return, prosecutors withdraw the lewd conduct accusation. With this approach, the prosecution is in a position to withdraw the charge that does not have the registration requirement while at the same time securing a conviction with this requirement.

Common Defenses You Can Use in a Lewd Conduct Case

Hiring a criminal defense attorney raises your chances of securing a favorable outcome in your lewd conduct charge. There are several defenses that a skilled lawyer can utilize to fight the charges leveled against you and strengthen your position. Some of the common defenses he/she can use include the following:

Police Officers Entrapped You

If law enforcement personnel coerced or lured you into engaging in the conduct, you could argue state entrapment as the reason for your actions. If, through intimidation or manipulation, police make you commit a crime that otherwise you would not have committed, you are a victim of entrapment.

To prove an entrapment defense, you have to demonstrate the following:

  • You were induced — You have to prove that the officers, through force or in a coercive manner, convinced you to perform an objectionable sexual act. This means the officers played a significant role in leading you to engage in illegal behavior rather than just providing an opportunity.

  • Absence of predisposition — You also must demonstrate that before the officers' interference on the scene, you never had the intention or the will to engage in the crime. You need to prove that you were not disposed to engage in lewd conduct before the officers' actions.

  • Unfair behavior — Your attorney will show that the officers used unfair or excessively manipulative methods. Their conduct was unjust or excessive. It could have been done by force, deceit, or other ways that create a reasonable, probable cause for a person to act against his/her better judgment.

If you successfully prove you were a victim of police entrapment, the courts could dismiss your case or find the case in your favor.

You Did Not Touch Yourself for Sexual Gratification, Annoyance, or to Offend Another

Your lawyer can argue that you did not engage in the sexual acts alleged by the proposition out of the need for pleasure or for the need to irritate or anger another person. If you touch yourself, for example, when changing clothes or due to some involuntary muscle contraction, this act has no motivating intent, further bolstering your defense. Similarly, your conduct under the statute would not be considered lewd conduct if you were engaging in a non-sexual sort of rubbing of your body, like to soothe yourself or scratch an itch, and you had no intention whatsoever of engaging in any lewd conduct or for any sexual purpose.

There would be no purpose to offend or provoke if you acted in a private location where you had a reasonable belief that no one could see you and you were unaware of any potential witnesses. By laying down these arguments, your lawyer could persuade the jury that there was not enough intent for you to be convicted of lewd conduct.

You Reasonably Believed There Was No One Present to Be Offended By Your Actions

You can also challenge the lewd conduct charges by asserting that you reasonably believed no one was present or could be offended by your actions. The nature and character of a person's belief and whether that belief is objectively reasonable in light of the prevailing circumstances are material to this defense. This defense involves convincing a jury that no one could be offended by the act that you are charged with. The court will consider your viewpoint to examine whether or not you held a particular belief at the time.

However, for your belief to be counted, it must also be objectively reasonable. The court will assess whether a reasonable person in your position would have shared the same belief under similar circumstances. Factors like the location, time of day, and nature of the act will influence this assessment.

This defense can be challenging to establish. The prosecution could argue that your claim lacks credibility or that a reasonable person would have known others could be present and offended. You could face difficulties in convincingly establishing your subjective state of mind and the context of your belief.

The Alleged Incident Did Not Occur in a Public or Publicly Accessible Location

When asserting that your activities were genuinely private and that the public could not see or be offended, your arguments rest on proving that you were not in a public place or area that is visible to the public. It is only possible to successfully use this argument if you can show that the location was private and unavailable to the public.

Under this defense, the court must establish that you had a legitimate expectation of privacy because you were in a closed area during surveillance. In your case, you could point out that the location was a home and that you assumed that all windows and doors were shut.

Privately means engaging in acts in your own home or a location of similar privacy. Thus, you should show that the act happened in an environment where you reasonably believed that no one could peer inside.

This defense can be challenging. For example, even if the windows of your car are tinted, the prosecution could argue that the car’s exterior was observable by the public if it was parked. Likewise, the prosecution could argue that it could also be possible, notwithstanding the facts of visibility and accessibility, that a placement in a private room at a business, be it a hotel room or a private booth in an adult bookstore, could nevertheless be deemed to be in the public eye.

Your Actions Do Not Meet the Legal Requirement of Lewd Conduct

You do not bear the burden of proof in a criminal trial involving obscene conduct. As much as the prosecution will do all it can to ensure that they prove beyond doubt that you are guilty, the law will always assume that you are innocent. You do not need to prove you are innocent, but rather, the prosecution needs to prove beyond a reasonable doubt that you were the one engaged in the lewd conduct.

One way your attorney leverages this defense is by focusing on proving that the prosecution has failed in its burden of proof. This means challenging the evidence they present and arguing that it does not establish that you engaged in lewd behavior. For example, suppose that evidence indicates that you did not commit the acts described or that the behavior does not meet the legal definition of lewd conduct. In that case, this can weaken the prosecution’s case.

Your attorney might provide evidence or testimony to prove that you were not involved in the alleged conduct or highlight inconsistencies and gaps in the prosecution’s case. He/she could, on the other hand, focus on pointing out contradictions and flaws in the prosecution’s evidential value. The goal is to raise reasonable doubts about your guilt.

The charges could be dropped, or the jury could acquit you if the prosecution fails to prove that you engaged in lewd conduct.

Find a Sex Crimes Defense Lawyer Near Me

Lewd conduct charges could have severe and lasting effects on your life if convicted. Beyond the immediate legal consequences, a conviction can tarnish your reputation, hinder your professional opportunities, and strain your relationships. The stigma associated with lewd conduct charges can linger long after the case is resolved. It affects nearly every aspect of your daily life. Handling these accusations can be a stressful affair at the emotional and psychological level, which goes a long way in explaining just how serious lewd conduct charges are.

However, when you enlist the services of a proficient criminal defense attorney, your chances of a favorable outcome increase. Your attorney can examine all the evidence and witness and expert testimonies, challenge the prosecution’s case, and apply numerous legal strategies.

Whether disproving the intent behind your actions or questioning the evidence’s reliability, our team at Monterey Criminal Attorney will advocate for you and navigate the complexities of the legal system. With our help, we can reduce the impact and seek a favorable resolution for your case. Call us today at 831-574-1791 for further assistance.