California’s Penal Code section 647(a) illegalizes soliciting or engaging in lewd (dissolute) conduct in public. The statute also prohibits lewd acts in areas not considered private such as locations that allow a public view. A conviction can tarnish your reputation and possibly limit your employment opportunities. As with any sex crime, you may also spend time behind bars and pay a hefty fine. If the authorities arrest and charge you with lewd conduct, you need an experienced attorney to help you fight the charges. At the Chula Vista Criminal Attorney, we have a skilled defense team dedicated to handling sex crimes cases. We can help increase your chances of an acquittal, reduced charges, or reduced penalties.
Compared to other statutes that define sex crimes, Penal Code Section 647(a) is pretty straightforward. However, “lewd” is a broad term that encompasses a whole range of activities. We can help you understand the charges you face and the possible outcome of a conviction. A compelling reason to seek legal counsel is that a lewd conduct charge can easily attract other charges such as disturbance of the peace or indecent exposure.
Lewd Conduct (Penal Code Section 647(a)) Defined
As aforementioned, Penal Code 647(a) makes it unlawful to solicit or engage in lewd acts in public or locations that expose you to the public. There are several important terms you need to know to understand this law better.
These terms include:
Lewd conduct is a term used to describe just about any sexual act in a public area. This includes exposing your genitals, engaging in oral sex, or even public masturbation, just to mention a few. Generally, any sexual act in public conducted for sexual arousal, annoyance, offense, or sexual gratification can be classified as a lewd act.
According to the law, it is unlawful to sexually touch your own body or that of another person in public. The term soliciting defines the act of asking someone else to engage in lewd acts for your sexual gratification.
From a legal perspective, lewd acts are illegal because they are a form of sexual deviance. The accused are seen to abandon their moral principles in the quest for erotic gratification, ignoring that they are within public view. Generally, engaging or soliciting lewd acts is considered different, odd, and unacceptable socially and legally.
It is also imperative for you to understand the term “in public.” PC 647(a) describes public areas as locations such as:
- Public restrooms
- Public car parking lots
- Movie theatres (whether they are well lit or dark)
- Dressing rooms in clothing stores
- Shared hallways in apartments or commercial buildings
Engaging in sexual acts within a commercial setting accessible by the public is a lewd act. However, you cannot be accused of violating PC 647(a) if the conduct occurs after business hours. While this is the case, any sexual behavior within a publicly accessible setting can lead to a conviction. For instance, you may face charges for lewd conduct if you engage in sexual conduct within a considerably private area like the massage room in a spa.
Moreover, you are on the wrong side of the law if you engage in sexual acts in plain sight from a private area such as your home. For instance, you may face charges if the action happens in an area without an obstructed view. This could be close to a window with no blinds or curtains or around your pool area where your neighbors can see you.
Element of Lewd Conduct
The prosecution bears the burden of proof. The court cannot convict you unless the prosecutor can prove certain elements beyond a shred of doubt.
If you are accused of engaging in lewd conduct, the prosecutor must prove that:
- You willfully touched your private parts (female breasts, genitals, or buttocks) or the sexual parts of someone else
- You intended to erotically gratify yourself or your partner or offend/annoy another person
- You engaged in this conduct in public or within an area that allows a public view
- A third party was present at the time you engaged in the conduct or felt offended by your actions
- You knew or should have known about the presence of another person or that they would feel offended by your public sexual acts
If the prosecution charges you for soliciting lewd acts, they must prove the following elements beyond a reasonable doubt:
- You requested someone else to touch their private parts or the private parts of someone else
- You asked that these acts take place in a public place or a location that allows a public view
- You wanted the conduct to take place within a public area or a site that allows a public view
- You intended to enjoy erotic gratification or gratify someone else or offend/annoy another individual
What Is The Penalty For Violating Penal Code 647(a)?
Lewd conduct is a sex crime classified as a misdemeanor. The punishment for the offense is as follows:
- Incarceration for up to 6 months in county jail
- A maximum fine of $1,000
With proper legal representation, the judge may decide to sentence you to informal or summary probation instead of jail. Some of the conditions of probation may include:
- Pay the court-ordered fine
- Seek counseling from a mental health specialist
- Do a mandatory AIDs/HIV test
- Steer clear of the location where the conduct took place
- Don’t engage in any criminal acts
- Disclose the probation terms to law enforcement officers if they inquire
- Obey all imposed court orders
Unlike most sex crimes, you don’t have to register as a California sex offender if you are convicted of lewd conduct. However, it is not foreign for the prosecutors to add other charges that may require you to enter the California sex offender registry. This includes charges such as indecent exposure and statutory rape.
Offenses Related To Penal Code 647(a) — Lewd Conduct
It is in the best interests of the prosecutors to get a conviction. As such, the authorities will investigate the circumstances leading to your arrest and the overall facts of a case. This allows them to charge you for more than one crime, generally increasing the chances of a conviction.
Other charges defendants commonly face alongside lewd conduct include:
Indecent Exposure — Penal Code 314
It’s common for a Penal Code 647(a) charge to tag on penalties for violating Penal Code 314— indecent exposure. This statute describes indecent exposure as the act of willfully exposing your genitals and offending a third party. Compared to lewd conduct, this is a graver offense that requires registration as a California sex offender.
Indecent exposure is a misdemeanor offense. A conviction could lead to the following punishment:
- Imprisonment in county jail for up to 1 year
- A fine not exceeding $1,000
Trespassing — Penal Code 602
Proving the elements of lewd conduct and indecent exposure beyond a reasonable doubt is often an uphill task even for experienced prosecutors. With a competent attorney, you have a good chance of having the charges dismissed. However, most prosecutors will not let you off the loop quickly. Another common offense that can be charged alongside or instead of lewd conduct is trespassing.
Penal Code 602 describes trespassing as the act of entering another person’s property illegally or without their permission. Often, this charge is not remotely related to lewd conduct charges. However, if a prosecutor finds it challenging to have you convicted of dissolute conduct or indecent exposure, they may offer a deal to charge you with trespassing instead.
Trespassing is a minor offense charged as an infraction or a misdemeanor. When charged as an infraction, a conviction will not appear on your criminal record. A misdemeanor conviction will attract the following penalties:
- Jail time for up to 6 months
- A fine of $1,000
Disturbing the Peace — Penal Code 415
Penal Code 415 describes disturbing the peace law. The statute makes it unlawful to:
- Make unreasonable noises that disturb your neighbors
- Fight someone in public
- Use abusive, fighting, or aggressive words in public
Again, a disturbing the peace charge may not have much to do with your lewd conduct charges. However, the prosecution may be ready to cut you some slack by offering to charge you with violating Penal Code 415 instead of Penal Code 647(a). A conviction will, in this case, cause less stigma and less severe penalties.
Disturbing the peace can be charged as an infraction or a misdemeanor. Pleading guilty to infraction charges will ensure that your criminal record remains clean. Here is the punishment for the offense:
- Up to 3 months prison time in county jail
- A fine of up to $400
Loitering In or Around a Public Toilet with Intent to Engage In or Solicit Lewd Acts — Penal Code 647(d)
Penal Code 647 has various subsections. Under subsection (d), it is unlawful to wander around a public washroom or enter it to solicit or engage in a lustful or lewd act.
Violating penal Code 647(d) is a misdemeanor offense that attracts the following penalties:
- Incarceration for up to 6 months in county jail
- A maximum fine of $1,000
Lewd Conduct With a Minor — Penal Code 288
Lewd conduct with a minor is an entirely different offense from Penal Code 647(a), lewd conduct. Under Penal Code 288, it is illegal to touch a minor’s (any person under 18) body for sexual gratification. This offense is prohibited, irrespective of whether you are in a public or private location.
Penal Code 288 encompasses different crimes, including child molestation. Essentially, child molestation means touching a minor’s private parts or having a child touch your sexual organs. You can be convicted of the offense irrespective of whether you touch a child’s skin or the touching happens over their clothes.
Violating Penal Code 288 is a wobbler offense that can attract misdemeanor or felony charges. Irrespective of the charges imposed, you will be doomed to registering as a California sex offender for life.
The offense is charged as a misdemeanor when the victim is aged 14 or older. In this case, the penalty may include:
- Prison time for up to 1 year in county jail
When the victim is younger than 14 years, the offense is a felony. The punishment is as follows:
- 3, 6, or 8 years’ incarceration in state prison
Note that the punishment for violating Penal Code 288 may escalate substantially because of aggravating factors. These factors include the age of a child and your criminal history, among other factors.
“Peeping Tom”— Penal Code 647(i) & 647(j)
California “Peeping Tom” laws are described under PC 647(i) and PC 647(j). These are laws designed to protect other people (third parties) from invasive acts of a sexual nature. Unlike lewd conduct, which takes place in public, acts classified under subsections (i) and (j) occur in secret.
Under subsection (i), it is prohibited to peep while loitering. The statute makes it unlawful to peep through the windows or doors on inhabited structures when loitering or trespassing through private property without the owner’s permission.
Subsection (j) prohibits invasion of privacy. This may include using technical devices such as a camera to secretly view another person’s body or photograph them without their consent.
Violating Peeping Tom laws is a misdemeanor that attracts the following punishment:
- Incarceration in county jail for a maximum of 6 months
- A fine not exceeding $1,000
Note that the penalty is bound to escalate if you are a repeat offender or if an offense involves invading the privacy of a minor.
Statutory Rape — Penal Code 261.5
Under Penal Code 261.5, it is a crime to engage in sexual contact with a minor (any person aged 17 or younger). According to the law, persons below the age of 18 cannot give consent to sexual interactions. Therefore, conducting any sexual act with a minor is deemed statutory rape.
Violating penal Code 261.5 is a wobbler offense, although it is often charged as a felony. Some of the aspects the prosecution will consider before deciding the most appropriate charges include the age of a defendant, the age of a minor, and the age difference in between.
When statutory rape attracts misdemeanor charges, the punishment may include:
Informal or summary probation, OR
- Up to 1—year imprisonment in county jail
- Up to $1,000 fine
When charged as a felony, the penalty for statutory rape may include:
- 3 or 4 years jail time
A statutory rape conviction may not require you to register as a sex offender in California. However, victims can file civil lawsuits, forcing you to pay restitution that ranges anywhere between $2,000 and $25,000.
Best Defenses to Fight Lewd Conduct Charges
If you face charges for lewd conduct, your fate is far from sealed until the prosecution can prove that you are guilty of the offense. We are well–conversant with all the best defenses that can help fight the charges. Irrespective of how doomed you are based on the facts tabled by the prosecution, our skills in the field allow us to make the most of any loophole we can find.
The ideal defenses to fight the charges may depend on the specific circumstances of a case. Some of the arguments that work best include (but are not limited to):
In most cases, lewd conduct arrests are made during undercover sting operations. Sometimes, the police may pose as ordinary citizens and attempt to “bait” you into committing the offense. Such conduct amounts to police entrapment. It is also possible for the authorities to exaggerate what happened or give outright lies to suggest you engaged in something more than “kind actions with clean intentions.”
If the police go overboard during sting operations in an attempt to arrest sex offenders, a reliable attorney can get you off the loop. Note that this defense may not be effective under all circumstances. After all, you may still be on the losing end if you agree to engage in lewd acts in public. However, a strong argument from your attorney can increase the odds of having your charge or sentencing reduced.
You Didn’t Engage In Lewd Acts
In criminal court, the burden of proof lies on the shoulders of the prosecution. Therefore, your attorney can argue that you didn’t engage in dissolute behavior. It is up to the prosecution to prove otherwise.
Sometimes, the offended third party may have misinterpreted what you were doing. While your actions may have raised an eyebrow, they were not in any shape or form of a sexual nature.
Lack of Intent
Sometimes, the authorities file charges based on misunderstood facts. One of the elements that the prosecution must prove beyond a reasonable doubt is that your lewd actions were intended to give you or someone else sexual gratification. Therefore, you are not guilty of the crime if you didn’t have a lustful intent.
For instance, it could be that you rushed to the bathroom because you had a bad itch. As you relieved your bladder and your irritation, you had no idea that the washroom had other occupants. Essentially, you had no intent to gratify yourself or another person sexually. Moreover, your actions were not aimed at causing offense or annoying another individual.
You Were Not Aware Of the Presence of an Audience
If the authorities arrest you for engaging in sexual acts in public view, your attorney may argue that you thought you weren’t exposed. For instance, it could be that you came home at night with your girlfriend and retired to your bedroom. Your new sheers were closed, and you had reason to believe they obstructed public view.
In this case, it could be that you thought your sheers provided much-needed privacy. Moreover, it was dead in the night, and logic shows little likelihood of wandering eyes from neighbors or bystanders. Therefore, the offended party is likely to be a nosy neighbor or a “Peeping Tom.”
You Were Not In Public
Simply because an incident occurred within private property doesn’t necessarily clear you of guilt for lewd conduct. Note that you may still face charges if you engage in sexual acts in public view.
An experienced attorney may argue that you were not in public or public view. For example, it could be that you got cozy with your girlfriend in your pool. However, your pool area is well enclosed to enhance your privacy. Again, you had reason to believe you were in private, and the offended party is likely a peeping tom.
Lewd conduct is a sex crime. This means that a conviction can do more than just deprive you of your freedom. Your reputation and even the good name of your family may be at stake. Whether you are guilty as charged or innocent of the offense, it is best to seek legal counsel right after an arrest.
How Can A Criminal Defense Attorney Help?
Once you enlist a lawyer, the professional will be dedicated to ensuring your case has the best possible outcome. This is irrespective of whether all points show you are guilty or someone misinterpreted your actions. The work of an attorney is to protect your rights, reputation, freedom, and livelihood.
Here is what the specialist can do:
- Fight to have the charges dismissed
- Obtain the best plea bargain on your behalf
- Negotiate for a lesser charge
- Negotiate for reduced sentencing
- Fight for your acquittal during trial
The California criminal justice system is complicated. While it is perfectly okay to represent yourself, a lawyer dedicated to your case is likely to be in the best position to provide reliable legal counsel and representation.
Find Chula Vista Criminal Attorney Near Me
If you face charges for lewd conduct, you must do yourself the favor of contacting a skilled criminal defense attorney right away. You need an expert who can analyze the facts of your case and devise the best defense strategy. At Chula Vista Criminal Attorney, we have extensive experience defending clients accused of lewd conduct. Our team is dedicated to educating our clients about their legal options and defending them to increase the odds of achieving a favorable outcome. Call us today at 619-877-6894 for a free and confidential consultation.