Wednesday, December 18, 2013

Public Nudity & Indecent Exposure in California: Everything You Never Wanted to Know

The laws regarding public nudity and indecent exposure in California seem to generate a lot of confusion and misconceptions.  Something about nudity makes people very uncomfortable and stokes all kinds of legal myths.  Some of the questions that I hear most often are:

-I was cited for public urination.  Will I be charged with indecent exposure?
-I got caught engaging in some lewd conduct in the locker room at my gym.  Will I be required to register as a sex offender?
-Is it indecent exposure for a woman to expose her breasts in California?
-Is it indecent exposure to "moon" people in California?

I'd like to take this opportunity to clarify some of this confusion and to help you understand your rights when it comes to getting naked in public.

In California, PC 314 makes it a misdemeanor to willfully and lewdly expose your genitals in a public place or in the presence of another person who is likely to be annoyed or offended by the display.

The law sounds pretty straight-forward upon first glance.  As with most things in the law, though, it's more complicated than it appears.  Let's break down the elements of "indecent exposure" to determine what sort of behavior does or does not meet its statutory definition:

-"Willfully":  The prosecutor must prove that the defendant exposed himself on purpose and that he intended to direct public attention to his genitals.  If you forget to zip your fly and you can't figure out why people on the street are giving you funny looks, you haven't "willfully" exposed yourself and you're not guilty of the crime of indecent exposure.

-"Lewdly":  The prosecutor must prove that the defendant "intended by his conduct to direct public attention to his genitals", and that he "acted for purposes of sexual arousal, gratification, or affront". Mere exposure is not enough to sustain a conviction unless the sexual motivation is proven beyond a reasonable doubt.  For example, nude sunbathing at a nude beach, "mooning" traffic as a prank, or urinating between parked cars is not necessarily "lewd" unless the defendant acted with the intent to sexually gratify himself or others.

-"Expose":  As its name implies, the crime of "indecent exposure" requires that the person actually expose himself.  In the case of  People v. Massicot (2002) 97 Cal. App. 4th 920, a defendant was tried for violating PC 314.  He had allegedly lifted his robe to expose flesh-colored women's underwear and a lace bra that he was wearing.  The court found him "not guilty" because he had not actually exposed himself -- underwear isn't enough, even if it's lacy, women's underwear.

-"Genitals":  A conviction for PC 314 requires that the defendant actually exposed his or her genitals.  This does not include the buttocks or breasts.  That's right -- in California, displaying bare female breasts in public does not constitute indecent exposure.  As the court famously ruled in Robins v. Los Angeles County (1967) 248 Cal.App.2d 1, "Display of bare female bosom...does not violate state law, is not regulated by the state and does not constitute criminal sexual activity". Groups such as and FEMEN have recently made headlines around the world for their efforts to protect the rights of women to appear topless in public, and I applaud these heroes.

-"In a public place, or in the presence of another person who is likely to be offended or annoyed":  This is one area where the law gets tricky.  It's sometimes difficult to determine whether or not a particular place qualifies as "public".  For example, if a defendant exposes himself to an undercover cop in a park bathroom during hours that the park is closed to the public, is he "in a public place"?  Does the undercover vice cop qualify as a "person who is likely to be offended or annoyed"?  What about standing in front of an open window and exposing yourself to passing pedestrians?

Courts have determined that the law does not require prosecutors to prove that the defendant was actually in a public place. He can be convicted of indecent exposure if he exposes himself anywhere to another person who is in a public place and who is likely to be offended by his nudity.  The law also does not require the DA to prove that victim actually saw the defendant's genitals, or that the victim was offended -- only that another person was present and that the other person was likely to be offended or annoyed.

As mentioned above, indecent exposure is usually treated as a misdemeanor in California, but there are some exceptions.  It can be treated as a felony if the defendant exposes himself after entering an inhabited building without the consent of the owner (if you break into someone's house and expose yourself to the occupants).  Indecent exposure will also be treated as a felony if you have a prior conviction for indecent exposure or for committing lewd acts with a minor.

A conviction for indecent exposure in California carries mandatory registration as a sex offender.  Of course, this designation may prevent a person from getting a job or holding various professional licenses and could earn you a spot on the Megan's Law website.

Potential defenses to indecent exposure charges may depend on the unique circumstances of your case and your criminal history.  A knowledgeable criminal defense attorney can review the evidence to determine the strengths and weaknesses of the allegations against you.  Once we know what we're up against, we can work with you to ensure that you understand your options and that your rights are preserved throughout the process.  Even in cases where our clients have admitted that they exposed themselves to strangers in public, we have had success in negotiating pleas to reduced charges that do not carry mandatory sex offender registration.

If you or a loved one has any questions about the laws regarding public nudity or indecent exposure in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.