Even in cases where the defendant is charged with the offense of indecent exposure, it is possible for an experienced and knowledgeable attorney to discuss with a prosecutor a reduced charge, such as lewd conduct (Penal Code section 647(a)). Similar to the charge of indecent exposure, lewd conduct requires the defendant:
- to willfully engage in touching his/her genitals or someone else’s genitals (or woman’s breast)
- with the intent to sexually arouse/gratify him or herself, or to annoy/offend another
- to do so in a public place
- someone was else was present
- knew or should’ve known that the person was present
A common situation involving lewd occurs when a couple is observed engaging in a sexual act at a park or beach. The sexual act itself is not a crime, however, the offensive or annoying nature of the act to a passerby is what is being criminally proscribed.
Defenses
The defenses to a lewd conduct charge are very similar to an indecent exposure charge. Specifically, the defendant:
- was not touching his/her genitals, or those of another person
- had no intent to sexually aroused him/herself, or to offend anyone else
- the location is on private property
- it wasn’t likely that the activity could be observed
Consequently, if an alternative, reasonable explanation for the client’s conduct can be effectively presented to the prosecutor, this may help exonerate the defendant. Alternatively, if the client bears criminal responsibility for engaging in lewd conduct, the attorney can work with his/her client to offer relevant solutions to the prosecutor that are more manageable for the client to bear. For example, a client who proactively enters into a sex counselling program (offered by a licensed practitioner with experience in the field), can often receive more favorable consideration by a prosecutor (see Practical Note discussion below).
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. However, the key distinction in punishment from an indecent exposure conviction is that there is no sex registration requirement. Keep in mind, however, that a court has the discretion to impose such a sex registration requirement, if the judge finds that the defendant committed the offense as a result of sexual compulsion or for the purposes of sexual gratification (Penal Code section 290.006).
Practical Note: Especially in cases where the evidence supporting an indecent exposure or lewd conduct charge is weak against the client, the attorney can also pursue “disturbing the peace” (Penal Code section 415) or “trespassing” (Penal Code section 602(m)). The significance of these alternative offenses is that they have no sexual connotations within their statutory language.