Sex crime charges such as lewd conduct are some of the common criminal offenses we handle at the Los Angeles Criminal Lawyer. Similar to other sex crimes, lewd conduct can carry stiff penalties, and a person can be charged wrongly. If you are facing these charges, get in touch with us so that we can help build a strong defense for you and possibly have the charges dropped or penalties reduced.
Overview of Lewd Conduct Law in California
Lewd conduct is any act that is sexual in nature and is considered stunning, indecent, or disgusting to a normal person. Some of the acts described as lewd are:
- Public exposure of one’s genitalia, known as indecent exposure
- Fondling yourself in public
- Watching pornography publically or engaging in prostitution
- Public urination
- Making calls that are vulgar in public
The law on lewd acts is found under PEN 647a. A person is accused of violating lewd conduct law when:
- They get involved in or seek a person to do indecent or dissolute acts.
- The person does this in a public place where other people can see. A public place, according to the law, is any place readily viewable by the public like stores, restaurants, roads, parks, hospitals, or even schools.
In order for a person to be convicted of this crime, the prosecution must prove the following facts:
- The defendant willfully touched themselves or another person in their genitals, female breasts, or buttocks in public
- The intention was to gratify or arouse themselves or the other individual sexually, or even to upset another individual
- When a person committed these acts, they were defined as public, where it is open for anyone to view
- There was the presence of another person likely to get offended by the act
- That you were aware of the presence or the possibility of the presence of another person
The above aspects are also known as the elements of the crime, and we discuss them in detail below:
Elements of Lewd Conduct
As earlier mentioned, these are dissolute acts found under PEN 647a. They refer to fondling or touching of privates parts of the offender or another person in public for sexual gratification. These acts are also intended to annoy other people, and for them to be a crime, they must be conducted in public. Let’s look at these elements in detail below.
The Intention to Annoy or Sexually Arouse
Pen 647a does not expressively discuss intent. However, it prohibits a person from doing dissolute or lewd acts in public. With regard to the traditional description of lewd conduct, the courts have understood the language to mean activities that are sexual in nature.
According to a particular appellate court, the challenge is if a normal person can comprehend with certainty that their conduct is prohibited. Any activity performed without the intention to annoy or arouse is not illegal according to PEN 647a.
For instance, if you had a previous engagement and you were somewhere playing basketball. You ran late and decided to use a bathroom for the public to freshen up and avoid getting late for your meeting. In the process, you may decide to remove your pants to clean up your genitals. Should an undercover officer notice you holding your genitalia, they may arrest you and assume you were masturbating in public. However, due to the fact that you had no intention to annoy or arouse another person, you are innocent of lewd acts.
Even so, you must establish your reasons for doing that, and they should be innocent and believable. The burden of proof is on the prosecution to convince the court that your actions had unlawful intentions. This is not very easy for the prosecution unless the circumstances surrounding your behavior show clean intent.
In order for you to have violated PEN 647a, the lewd act must happen in:
- An area considered to be public
- An area considered open for anyone to see
- An area that is open for the public
The courts of California further gave a broad description of the public place. Some of the places that are considered public, though not limited to these are:
- A movie booth in a bookstore
- A car that is parked along a public street
- A communal hallway at a building
- The place behind a counter at a men’s store
- A massage studio
Some areas such as your home, closed business premises, or hotel rooms are not open to the public because they give privacy to the people involved. However, even as these locations are viewed to be private, during the act, the blinds or curtains should be shut. If open and the public can see, the conduct can then become a criminal offense.
The Requirement for a Third Party
In California, it is not entirely illegal to get involved in a sexual activity publicly. However, if there is a third party that will probably get offended by the act, it becomes illegal. If the perpetrator is aware of this fact and proceeds with the act, they will be prosecuted for lewd conduct.
Under PEN 647a, the main purpose of the law is public protection from the offensive nature of the conduct. In case the action happens at a location open for people to see, and no person is present to feel offended, the state will not be bothered to prohibit the act.
Apart from the probability of being noticed, there actually must be a likelihood that a third person is present. The upside of this is that in most instances, individuals arrested under PEN 647a are innocent by fact; even when the persons publicly engaged in sexual activity, they had reason to believe that:
- No one would be able to see them
- No one around would get offended after seeing the act
Penalties for Violating PEN 647a
Violating PEN 647a is charged as a misdemeanor offense with a maximum punishment of:
- County jail time not exceeding six months
- Cash fine not exceeding $1,000
In some instances, the judge can also grant an informal or summary probation. Some of the conditions for informal probation are:
- Attending court-ordered counseling
- Paying fines
- An HIV/Aids test
- Mandatory requirement for the offender to keep off the location
It is important to know that even when convicted of lewd conduct, the perpetrator does not need to be registered as a sex offender. Unfortunately, many prosecutors opt to charge it alongside indecent exposure charges that attract the need to be registered as a sex offender. Some will even ask that you accept guilty charges of indecent exposure and in return, they drop the lewd conduct charges.
When presented with such a deal, many defendants get attracted to accept the deal because they fear a conviction once the case goes on trial, and the outcome will be unbearable.
Sting Operations for Lewd Conduct
In order to arrest individuals performing lewd acts, most police operate undercover. For instance, the undercover officer can pretend to be gay. He may look for a convenient place like a bathroom in the park and waits for a man that seems gay to come by. The undercover officer is usually not in uniform and starts flirting with the other person. He keeps eye contact and may even touch himself in an effort to seduce the other person.
All this is an act to flush out the other person to agree and expose himself or herself to a sexual encounter. If the other man accepts to do any of these or starts doing them, he is immediately arrested for the offense.
Police can also have a discreet surveillance camera in a public place to monitor the conduct of individuals. If a cop sees individuals carrying on an indecent act from the camera, the officer can move in and arrest them.
In both these examples, the persons arrested believed that no person was present that would find offense in their behavior. In a case where the undercover officer was flirtatious, the person arrested had no way of knowing that their actions would offend. This is because they were doing the same. Even when the sexual act was done in a public place; they reasonably believed that they were not offending anyone. As such, they are not in violation of PEN 647a.
Areas Where Most Sting Operations Happen
Most sting operations are set up in public areas by the police. Some common places include:
- Public bathrooms on the beach or park
- Shopping malls
- Public parks
- Gymnasiums and other recreational facilities
- Book stores, especially for adults
The police defend the undercover sting operations by claiming they are done due to multiple complaints from the public.
What to do If You Are Arrested for Violating PC 647a
In most cases, when a person is arrested, the officer will issue a citation for them to make a court appearance. In other instances, the police can opt to arrest, take fingerprints, and book the offender then release him or her with a citation to appear in court.
Regardless of how the arrest was made, the moment you get a citation, get in touch with a defense attorney immediately. Normally, between the arrest and when the case is reviewed, there is a gap. If you have a lawyer, he or she can arrange an appointment with the District Attorney to try and convince them against filing the charges.
Additionally, because of the charges being a misdemeanor, you will not have to attend court, but your lawyer can represent you. This gives you the freedom to continue doing other things that you need to. Once you go on trial, your lawyer is able to get all the police records and evidence against you from the prosecutor.
Your lawyer will start by inspecting the location where the action happened. The lawyer will further investigate the arresting officer to understand his credibility. Additionally, evidence will also be gathered from others that have arrested similarly from the same location. This is done to identify any weakness in the prosecutor’s case against you. If a weakness is established, your lawyer can use that to get the charges dismissed.
In some cases, the district attorney can ask the offender to plead guilty to a lesser charge such as trespassing under PEN 602 so that they may drop the lewd conduct charges. Many people facing lewd conduct charges prefer to take the plea because they feel embarrassed to be prosecuted for lewd conduct.
If negotiations before a trial fail, the case proceeds to trial with a jury. Most PEN 647a violation cases usually get a verdict of not guilty.
Possible Legal Defenses for PEN 647a
Common defenses that a lawyer can use depend on the circumstances that the act was committed and arrest made. Some of the most common defenses that a lawyer is likely to use include:
The defendant was not involved in the act they are accused of
Should you not have been involved in the act you were arrested for; then you cannot be guilty of the same. The burden is always upon the prosecutor. He or she must prove to the court that you were involved in a lewd act.
You had no intention of sexual gratification when you touched Yourself
Maybe you were in need of urinating, that is why you were touching your genitals. You could also have been cleaning yourself up, or your private area was itchy, and you were scratching. Regardless of the reason you touched yourself, the prosecutor must prove that you had a sexual intent when you did it. If they can’t do it, you are innocent of lewd conduct.
You had reason to believe a third party was not present to be offended
This defense tactic is commonly used to defend alleged offenders. Unless it is proven that you knew and were aware of the presence of a person that would get offended of the act, you cannot be guilty of PEN 647a violation.
When the act happened, it was in private not in public
It is not a crime to engage in sexual acts on private premises unless it is open for the public to view. If the place was not accessible to public viewing, you are innocent of lewd behavior.
The police entrapped you to engage in the act
Under the entrapment laws of California, the police are forbidden from inducing law-abiding individuals to engage in criminal activity that under normal circumstances they would not have. This may include the use of force or pressure, harassment, flattery, or threats. However, initiating a crime or creating an opportunity where crime can be committed is not entrapment.
Laws Related to Lewd Conduct Law
Indecent Exposure PEN 314
In some cases, the prosecutor may decide to bring the charges of indecent exposure alongside the lewd conduct charges. If convicted of indecent exposure, the penalties are more severe, and the defendant will be required to register as a sex offender. Indecent exposure happens when a person intentionally exposes their genitals to a third party that gets offended. The exposure must also be for sexual gratification for it to be a crime.
Trespassing PEN 602
Most of the time, the prosecution will refuse to dismiss charges on lewd conduct. However, they may require the offender to plead to lesser charges of trespassing. In California, trespassing under PEN 602 makes it illegal to enter the property of another person without their permission.
Disturbing the Peace PEN 415
This is also another offense commonly used for a plea bargain. The law under PEN 415 prohibits:
- Fighting physically in public
- Fighting verbally in public
- Making noise unreasonably to disturb neighbors
Lewd Conduct with a Child PEN 288
The law prohibits an adult from touching a child for sexual gratification. The act is not limited to the location where it happens, but as long as it happens. It involves touching or asking the child to touch your private parts for sexual intent.
It is a felony to commit lewd acts with a minor. During prosecution, the age of the child and the criminal record of the perpetrator is taken into consideration. The penalties for this offense are severe in addition to registering as a sex offender.
Peeping Tom PEN 647(i) and (j)
This law is designed to protect the third party from individuals that will be peeping at them for sexual gratification. Most violations for peeping toms are misdemeanors, and the offenders will likely face the following if convicted:
- County jail time not exceeding six months
- A cash fine of up to $1,000
- An informal or summary probation
Find a Los Angeles Criminal Attorney Near Me
Sex crimes are some of the most common crimes that you can be charged with. These offenses usually carry some of the stringent punishments under the law, including registration as a sex offender in some instances. If you are facing charges such as lewd conduct in Los Angeles, get in touch with the Los Angeles Criminal Lawyer at 310-502-1314. With our many years of experience in criminal defense and in-depth knowledge of the California criminal law, we are ready to help you find a favorable outcome in your case.
If you are being charged with a sex crime in Orange County or San Diego here are some recommendations: Pimping and Pandering Attorney