Indecent exposure is defined under California law as the exposure of one’s person, genitals, or buttocks in a way designed to offend or annoy others. This crime can be one of subjectivity and may arise out of a misunderstanding or misinterpretation of the defendant’s intent. Nonetheless, a criminal record that includes a conviction of indecent exposure can prevent the defendant from obtaining gainful employment or even enrolling in higher education, which is why working with an indecent exposure attorney in California is so important when facing a crime of this magnitude.
The Crime of Indecent Exposure
Despite large shifts in cultural acceptance of the human body, the California indecent exposure law has remained largely unchanged since its inception in 1872—nearly 150 years ago. The laws are in Section 314 of the California Penal Code, but here is a summary:
- Indecent exposure is a misdemeanor, and it requires the defendant to act “willfully and lewdly.”
- A person can face an indecent exposure charge by exposing “his person, or the private parts thereof, in any public place” where other people are present who could be “offended or annoyed.” Note: There is no requirement that the people are actually offended or annoyed.
- A person could also face an indecent exposure charge by procuring, counseling, or assisting another person to expose himself such as is “offensive to decency, or is adapted to excite vicious or lewd thoughts or acts,” including participation in a model artist exhibition.
- A second or subsequent conviction of indecent exposure will be filed as a felony.
As mentioned, a first-and-only indecent exposure conviction can result in a maximum penalty of $1,000 in fines and jail time not to exceed one year. A subsequent conviction, however, can be much more severe and may involve imprisonment in a state prison for up to three years.
Also, and perhaps most troubling, is the notion that anyone convicted under Section 314 of the California Penal Code must register as a sex offender for the rest of his or her life while residing in California, as required by Section 290 of the California Penal Code (or the “Sex Offender Registry Act”).
Combating an Indecent Exposure Charge
The subjectivity of the indecent exposure statute can be a double-edged sword, as it could work in the defendant’s favor to help combat the alleged victim’s accusations as misconstrued or misinterpreted. First, it helps to break down the elements of an indecent exposure charge succinctly, all of which the prosecution must prove in order to prevail:
- The defendant willfully exposed his or her genitals,
- Adjacent to at least one other person who could be “offended or annoyed”, and
- The defendant intended to expose said genitals for the purpose of personal sexual gratification, the sexual gratification of another person, or in order to intentionally sexually offend someone else.
Beginning with element one above, the state must adequately prove that the defendant willfully exposed himself. In other words, the defendant’s alleged exposure did not happen by accident or due to an unforeseen event or intervening force (e.g., loss of one’s bathing suit, exposure by a gust of wind, etc.).
Second, the defendant must be plainly exposed to at least one other person. This means that if the defendant exposed himself such that he did not believe another person would see, or was attempting to seclude himself behind a tree or similar obstacle, a criminal defense attorney can use this to defend against the charges. With regard to the “offended or annoyed” element, the law does not mandate that the viewer is actually offended or annoyed, just that he or she could be.
Lastly, the Penal Code requires the prosecution to prove that the defendant was sexually motivated at the time of the alleged exposure. In other words, “flashing” itself is not enough to support the charge if there is no additional evidence of a sexual element of some sort. This element is fodder for creative defense strategy, particularly if there is no reported sexual gratification or offense experienced by anyone involved in the incident.
For example, if an individual “moons” an audience out of a car window, it may be insufficient to support a charge of indecent exposure, as there is unlikely to be sexual gratification or sexual offense taken as a result of this action. Likewise, the law generally does not consider exposure of anything other than the genitals sufficient for an indecent exposure charge, including exposure of one’s breasts or buttocks.
Contact a Criminal Defense Attorney Today
An indecent exposure charge can be humiliating, but there are options available to anyone facing this sort of criminal allegation. To learn more or to begin working on your defense, please contact the California criminal defense attorneys at Greenberg & Greenberg, APLC today by calling 951-274-0003 or by filling out the form on the right to request a free consultation.