The offense of indecent exposure (Penal Code section 314) occurs when the defendant:
- willfully exposes his/her genitals
- does so in the presence of someone who might be offended/annoyed
- intended to direct public attention for personal sexual gratification or to offend another
In most cases involving this offense, the defendant is observed by a witness engaging in masturbation in a public place, whereupon police are called to investigate. If the witness can describe the specifics of what he/she observed; that the defendant definitely exposed his genitals in a park setting where he was likely to be seen by passersby, then it is likely that the defendant will bear criminal responsibility. However, there are defenses available to counter such a charge.
Using the “park” example above, consider the following scenarios:
- the defendant was touching himself through his clothing, not exposing himself
- the park was closed at the time and the defendant didn’t realize security was around
- was in the act of peeing in the bushes (not for sexual gratification or to offend another person)
- due to the lighting conditions, the witness “couldn’t see for sure” what the defendant was doing, but it “kinda looked like” defendant was touching himself
There are many real-life scenarios that may explain a defendant’s conduct, none of which involve indecent exposure. Consequently, if there exists an alternative, reasonable explanation for the conduct, these circumstances may help exonerate the defendant. Alternatively, from a “damage control” perspective, a client who proactively enters into a structured sex offender counselling program (offered by a licensed practitioner with experience in the field), can often receive favorable consideration by a prosecutor.
Aggravating Factors, Punishment & Sex Registration
A first-time offender will usually be charged with a misdemeanor, punishable by up to six months in custody in the county jail, and fines/fees. If, however, the defendant committed the indecent exposure after having entered an inhabited structure or home, then the prosecutor has the discretion to file the charge as a misdemeanor or as a felony. If the charge remains a misdemeanor, the custody can go up to one year in county jail. If filed as a felony, the punishment can include the defendant being placed on formal probation and serving up to one year of custody in the county jail, plus fines/fees. If felony probation is denied, the defendant may serve 2 years, 3 years, or 4 years of custody in state prison.
Finally, as of 2017 in California, a new tiered system (SB 384) exists for designating for how long a defendant is required to register as a sex offender. For misdemeanor and felony sexual battery, the registration requirement with local law enforcement is 10 years (Penal Code section 290). Failure to register can result in either a new misdemeanor or felony offense, punishable up to one year in county jail or 3 years in state prison.