Touching your own or another individual’s buttocks, genitals, or female breasts to gratify a sexual desire when you know or should have known other people present could have taken offense with your behavior is a crime under California Penal Code 647(a). This conduct is considered lewd or lascivious behavior. The statute also criminalizes soliciting lewd conduct in a public place.
Convictions for lewd conduct are punishable by fines and jail sentences. Additionally, defendants have to worry about the negative consequences of a lewd conduct conviction, including social stigma, damaged reputation, and finding it more difficult to secure employment, credit, or housing. Fortunately, these challenges are avoidable. Having legal representation helps fight the charges to ensure the best legal outcome. Our Chula Vista Criminal Attorney team is ready to offer you legal assistance and representation.
Lewd Conduct Under PC 647(a)
Penal Code 647(a) defines lewd conduct as willfully touching an intimate body part in public or for sexual gratification and in view of another. It is also a violation of PC 647 to engage in lewd behavior where you should have reasonably known another would have seen and be offended by your actions.
The D.A. must prove five facts as true for you to be found guilty of the offense.
- You intentionally touched your own or another’s genitals, female breasts, or buttocks,
- You did so to gratify or arouse yourself or a third party sexually, or you aimed at offending or annoying another individual,
- You were in a public location, an area accessible by members of the public, or in public view,
- Another individual was present, and he/she could be offended by your actions, and
- You knew or should have reasonably known that a third party could be annoyed by your conduct.
Let us look at each element in detail.
Lewd, dissolute, or lascivious conduct refers to touching your or another person’s genitals, female breasts, or buttocks for sexual gratification or to annoy or offend another.
Intent to Annoy or Arouse
PC 647(a)’s definition of lewd conduct does not mention an intent to annoy or arouse. However, past cases have upheld intent as a basis for proving arousal or annoyance. This is why prosecutors must prove that a defendant either knew or should have reasonably known his/her actions could annoy another.
Prosecutors bear the burden of proving an intent to annoy or arouse another. On the other hand, a criminal defense attorney will submit an innocent reason for the defendant’s actions, aiming to show the jury that the actions lacked an intent to arouse or annoy.
You are only guilty of a PC 647(a) violation if you engage in lewd behavior in a public location, an area open to the members of the public, or a location exposed to public view. The term "public" has a broad interpretation by the California courts to include the following:
- A vehicle parked on a public road
- Massage parlors
- Private movie booths in adult bookstores
- The region behind the service counters in the men’s clothing shops
- Common hallways in apartment buildings
Engaging in the conduct mentioned above in a private residence, hotel rooms, closed areas of business, or your home is not lewd conduct. All these areas are not open to the public. However, it can be a violation of PC 647(a) if the behavior is exposed to the public in view. For example, engaging in sexual activity in front of an open window facing a public street.
Offending a Third Party
Note: The law has little interest in prohibiting sexual behavior in public areas. It only becomes illegal when the act affects the public. Thus, the provision that you knew or should have reasonably been aware of the presence of a third party who was likely to be offended by your actions.
There should be more than the mere likelihood of being seen by another individual. An actual possibility that a third party was present should exist.
In reality, most individuals accused of lewd behavior are factually guiltless. Even if they engaged in sexual activity, they reasonably believed a third party would not see them or that no one viewing the act would be offended.
Undercover Sting Operations
A significant number of lewd conduct charges originate from undercover sting operations. Undercover police officers pose as gay men in public bathrooms, adult stores, gyms, shopping malls, public streets, and parks. They attempt to bait individuals into sexual behavior.
Undercover police officers aim to arrest you after you masturbate, expose yourself, or propose some sexual act. In most situations, individuals suspected of lewd conduct are arrested for merely making eye contact with the undercover officer. The officer then exaggerates, embellishes, or lies that the suspect engaged in indecent behavior. In these situations, criminal defense attorneys will use the entrapment defense to fight the allegations.
Police officers justify the sting operations as a response to citizen complaints. What has become evident over the years is that the complaints are from people who are uncomfortable with gay men and lesbians. Therefore, they call police officers when they see gay and lesbian couples hanging out.
Most people arrested in undercover sting operations do not actively seek out these areas for a hookup. They innocently access these areas and walk into the trap. Most suspects assert that the officers were overbearing. Therefore, it is best not to engage in public locations, especially when you instinctively feel uncomfortable with the situation.
You can be released after an arrest with a citation requiring you to appear in court. It takes time before the DA reviews your case and files formal charges after you are released. It is, therefore, best to utilize this window by engaging a criminal defense attorney immediately after your release. Your attorney will contact the DA to persuade them not to file charges.
PC 647(a) violations are misdemeanors. Therefore, you are not mandated to appear in person in court. Your attorney can go to court on your behalf.
As part of due diligence, the Chula Vista Criminal Attorney team inspects the location and interviews other individuals arrested in the same sting operation. Additionally, we will file a Pitchess motion to access the background of the officers involved in the operation. This helps us establish any pattern of behavior in previous cases that show police overreach or misconduct.
All the above efforts aim at convincing the prosecution to drop the case. The D.A. can then decide to drop the changes or require you to plead guilty to lesser offenses in a plea bargain agreement. It is also possible that all negotiations fail, and we proceed to trial. If so, we will assert the right defense based on your circumstances.
Fighting Lewd Conduct Charges
Several defenses are available to challenge the lewd conduct charges. After assessing your case, your attorney will advise you of the best strategy likely to result in an ideal legal outcome. These are the more common defenses.
Police sting operations are not illegal. However, if the undercover officer induces or pressures a law-abiding citizen to commit an offense he/she would not have otherwise engaged in, the officer would have entrapped the individual.
Entrapment is a valid legal defense to challenge police officers' overreach in addressing lewd behavior in public areas.
Note: It is not entrapment if a police officer merely offers you an opportunity to engage in lewd acts. It is agreeable that a reasonable individual would resist the temptation to engage in this behavior when presented with the opportunity to do so. Further, police officers do not violate entrapment laws when they initiate a criminal activity or give reasonable assurances that it is not a setup.
The entrapment defense is applicable if you were:
- Pressured to engage in a lewd act — Officers appeal to an individual for compassion or friendship or offer substantial compensation in exchange for committing the crime,
- Harassed or threatened to participate in one — Constant, repeated, or unwavering solicitation to commit the lewd act even if you resisted or declined the offer, or
- Fraudulently made to believe that the act is legal.
Your charges will be dismissed by establishing that the police officer violated entrapment laws.
You Touched Yourself, But Not to Sexually Gratify Yourself
Touching your private parts or another’s is not enough to prove lewd behavior. Prosecutors must prove an intent to gratify yourself or another sexually. Witnesses often mistake harmless, playful acts for indecent behavior.
For example, it is not uncommon to see an individual scratching his/her private parts. Additionally, couples or friends slap their female partners' or colleagues’ buttocks. These acts do not mean that they are aimed at sexually gratifying themselves. However, a third party could be offended or annoyed by the behavior.
Playful actions are commonly mistaken for lewd conduct by third parties. Police officers, on the other hand, are trained to ascertain specific signals or gestures that indicate a desire to engage in sexual conduct. Despite this training, police officers also mistake playful, innocent, or unintentional acts for lewd conduct signals.
The prosecution must prove beyond a reasonable doubt that your actions were for sexual gratification. Your attorney can use this defense to cast doubt on the prosecutor’s case or if you were factually innocent.
You Reasonably Believed No One Was Present
For you to be charged with lewd conduct, someone must have witnessed your actions and taken offense. You can assert that you did not intend to annoy or offend anyone and reasonably believed no one was present to see you.
For example, you could have engaged in sexual activity behind the bushes or in an abandoned structure. In this case, the witness must have intentionally removed the obstruction to observe you. Your attorney, after an independent investigation, will demonstrate to the jury that you were taking cover and thus had no intention of exposing yourself or engaging in the sexual act in full view of the public.
You Were Not in a Public Place or a Location Open to Public View
A jury will find you guilty of violating PC 647(a) if you engage in lewd acts in a public location, an area accessible to the public, or in public view. Engaging in dissolute conduct in a private residence or a place not accessible to the public is not a crime. However, if you do it in full view of the public, you will be found guilty of lewd behavior.
For example, Jim and Robin enter their apartment, kissing and heavily caressing each other. Unknown to them, the bedroom window is open, and a gust of wind draws the curtains and exposes them to Marjorie, walking down the street. Marjorie calls the police, and Jim and Robin are arrested for lewd behavior.
Whereas Marjorie was offended by Jim and Robin’s actions, the couple did not intend for them to be seen. They were in their apartment, a private residence. The exposure was accidental. Thus, Jim and Robin are not guilty of lewd behavior.
Possible Penalties for Engaging in Lewd Behavior
A violation of PC 647(a) is a misdemeanor offense punishable by a maximum fine of $1,000, six months in jail, or both. You could receive misdemeanor probation terms as opposed to spending time in jail.
As a requirement for your probation, the courts could require you to:
- Submit an AIDS test
- Attend counseling
- Pay fines, and
- Stay away from the location where you allegedly committed the crime.
Note: The law does not impose a sex requirement on individuals found guilty of lewd conduct. However, if the D.A. pursues indecent exposure charges and you are found guilty, you will be required to register as a sex offender.
In some situations, the D.A. charges defendants with lewd conduct and indecent exposure. This move aims at compelling the defendant to plead guilty to indecent exposure to have the lewd conduct charges dropped. Most defendants overlook the sex offender registration requirement in pleading guilty to indecent exposure, whose impact is devastating. Do not agree to any proposals from the prosecution.
Offenses Related to Indecent Exposure
The D.A. can pursue the following crimes as additional charges or alternatives to a PC 647(a) violation.
a) Indecent Exposure
Indecent exposure is a violation of PC 314. You violate the statute when you willfully expose your naked body or genitals to the public who you reasonably know or should have known would be offended by your actions. Additionally, you are only guilty of the offense if you committed the act in a public place.
Similar to lewd conduct, PC 314 requires prosecutors to prove that your actions were aimed at achieving sexual gratification or offending a third party.
First-time offenders receive misdemeanor penalties, including six months in jail and a maximum fine of $1,000. Further, you will have to register as a sex offender for at least ten years, according to PC 290.
Aggravated indecent exposure offenders receive harsher penalties. You commit aggravated indecent exposure when you expose yourself to an inhabited trailer, home, or building and enter the premises without permission. The D.A. can charge you with a misdemeanor or felony violation.
If charged with a misdemeanor, you will face one year in jail, a maximum fine of $1,000, and a 10-year registration requirement as a sex offender. Convictions on felony charges, on the other hand, attract a maximum prison sentence of 16 months, two or three years, a maximum fine of $10,000, and a sex-offender tag renewable every year for ten years.
Repeat offenses are automatic felonies, that is, being charged with indecent exposure for the second or subsequent time. Additionally, if you have a previous conviction of lewd conduct with a minor and are charged with indecent exposure, your current PC 314 violation is an automatic felony.
b) Lewd Acts With a Minor
PC 288 makes it a crime to willfully touch a minor under the age of 14 years for sexual purposes. Unlike PC 647(a), PC 288 does not require touching to happen in a public location or public view.
Lewd acts with a minor are defined as any lascivious or indecent behavior done on a child below 14 years of age with the intent of sexually gratifying or arousing yourself, the child, or a third party. Some examples of lewd conduct with a minor include willfully touching a child’s body or intentionally causing a child to touch his/her body, a defendant's body, or the body of a third party.
Willful action means intentional action and not necessarily that the defendant aimed to break the law, gain an advantage, or harm the victim.
Note: Touching and arousal are pivotal in PC 288 violation cases. Touching is not limited to bare skin or a sexual organ for you to be found guilty. It can be on any body part. Additionally, the touch can be done on bare skin or through clothing.
PC 288(b) makes it a crime to use fear or force to commit a lewd act on a child. This section imposes stiffer penalties for defendants who use violence, intimidation, menace, or threats of immediate physical harm to the child or another individual to coerce a minor into engaging in lewd conduct.
The penalties vary depending on:
- The child’s age
- Whether force, violence, duress, or threats was used to accomplish the last vicious behavior
- Whether there exists a pattern of lewd conduct
- Whether the child is 14 or 15 years of the defendant’s age
Here are the penalties you will likely receive if found guilty of lewd behavior with a minor under 14 years of age.
- Three, six, or eight years in prison, a maximum fine of $10,000, or both if the child was 14 years of age and no force was used. You could receive formal probation terms as opposed to prison time.
- Five, eight, or ten years in prison and a maximum fine of $10,000 if force was used on a minor below 14 years
- Life in prison if the child was physically harmed
- One, two, or three years in prison and a maximum fine of $10,000 if the child is 14 or 15 years old and the defendant is ten years or older. Alternatively, you could be sent to jail to serve a one-year sentence and pay a fine of up to $1,000
- 25 years to life in prison if you are a habitual sex offender
- Five, eight, or ten years in prison and a fine of up to $10,000 for lewd acts carried out with force by a caretaker of a dependent child
Additionally, convictions for PC 288 violations require life registration as a sex offender.
First-time offenders will be placed in Tier 2, which imposes the sex offender ta for at least 20 years. Second and subsequent offenders, including those who use fear, force, duress, and threats to accomplish the lewd act, are Tier 3 offenders. Tier 3 imposes a life-long registration.
If the victim is 16 or 17, the D.A. could pursue statutory rape or sexual battery charges.
c) Statutory Rape
PC 261.5 makes it a crime to have sexual intercourse with an individual who is less than 18 years of age. The offense is also referred to as statutory rape, unlawful sex with a minor, illegal sexual intercourse, or sexual intercourse with an individual under the age of 18 years.
Statutory rape is a wobbler offense. Prosecutors can seek a conviction for misdemeanor or felony violations. The age difference between the minor and the defendant is a critical factor that could inform the choice of felony charges as opposed to misdemeanor charges.
Misdemeanor penalties include informal probation or a jail sentence of one year. Additionally, a judge could impose a fine of up to $1,000.
Felony convictions result in either formal probation or 16 months, two or three years in prison unless the defendant was 21 years or older and the victim was 16 years old at the time of the crime. If so, the penalties increase to two, three, or four years in prison. Additionally, the judge could impose a fine of up to $10,000.
Contact a Chula Vista Criminal Defense Attorney Near Me
Early intervention is critical when facing lewd conduct charges. The Chula Vista Criminal Attorney team will engage the prosecution at the earliest opportunity to have your charges dismissed or reduced. Should we proceed to trial, we will represent and defend you against the charges. Our team is ready to help. Contact us today at 619-877-6894 for a free and confidential, no-obligation case assessment.