California law defines lewd conduct as touching the genitals, buttocks, or female breasts of another person with the intent to arouse, gratify, or annoy that person. A lewd act can be done through the clothing of the victim or directly on the victim’s skin. If you are convicted of Lewd conduct in California, you could face hefty fines and jail time. Our lawyers at Los Angeles Criminal Attorney are dedicated to offering legal guidance and help to those facing lewd conduct charges in Los Angeles.
Legal Definition of Lewd Conduct
The law defines lewd conduct as when a person engages in dissolute behavior in a public area or any area exposed to public view or place open to the public. Lewd conduct under California law is described as any obscene act that involves the touching of oneself or another (including the clothing covering the immediate area of the person's body) with the intent to arouse or gratify the sexual desire of any person. A lewd act does not have to involve physical contact with another person. Just the exposure of one’s genitals in a public place can be considered a lewd act if it is done with the intent to arouse or annoy someone else who is present.
Note that masturbation is not considered to be lewd. This makes sense because masturbation is considered to be a wholly private act. However, if someone masturbates in a public place, this could be considered disorderly conduct because it involves the touching of one's sex organs in a place where others can view the act.
Elements of the Crime
There are several elements that the defendant has to prove for you to be convicted under PC 647a. These elements include:
- The defendant committed a lewd or lascivious act
- The touching was done in a public place
- The defendant was aware that his conduct was likely to offend others who might witness it;
- The defendant acted with the specific intention to gratify or arouse himself or another person sexually; and
- The defendant’s conduct caused others to be offended or alarmed.
The Defendant Committed a Lewd or Lascivious Act
As stated above, a lewd or lascivious act is defined as any kind of sexual touching that is done without the consent of the other person, or in a way that is intended to be sexually gratifying. Some ways that a prosecutor may attempt to prove that a defendant committed a lewd or lascivious act include presenting witnesses who saw the act take place, or who can attest to the defendant's character and history of similar behavior. The prosecutor may also try to establish a pattern of behavior leading up to the act in question or may introduce evidence that the act was premeditated or that the defendant had a sexual motive for committing it.
The Touching was Done in a Public Area
A public place is any place where members of the public are likely to congregate or where they are likely to be visible to members of the public. This includes places like parks, beaches, shopping malls, and public transportation. It also includes any place where there is a reasonable expectation of privacy, like a bathroom or changing room.
The Defendant was Aware that His Conduct was likely to Offend Others Who Might Witness It
One way the prosecutor can prove that the defendant was aware that his conduct was likely to offend others who might witness it as an element of a lewd act is if the defendant had previously been warned by law enforcement or others about his behavior. Another way the prosecutor can prove this is if the defendant was engaging in conduct that is typically considered to be private (such as undressing in front of others or masturbating in public) in a place where others are likely to see.
The Defendant Acted with the Specific Intention to Gratify or Arouse Himself or Someone else Sexually
The prosecutor must show that the defendant engaged in conduct that was sexually explicit and that he did so for sexual arousal or gratification.
Examples of Engaging in a Lewd Act in a Public Place in CA
Some examples of people who could be charged under Penal Code 647a PC for engaging in a lewd act in a public place include:
- A woman is at a local beach wearing a bikini. A man walks up behind her, rubs his genitals against her buttocks, and then walks away.
- A woman is sitting on a park bench. A man walks up to her and begins to rub his penis against her leg.
- A man is walking through a public park. He sees a young girl sitting on a park bench. He walks over to the girl and begins to fondle himself.
Penalties for Lewd Conduct
Engaging in a lewd act in a public place is charged as a misdemeanor offense in California. The maximum possible penalty for a California misdemeanor offense includes:
- Up to six 6 months in jail, and/or
- Fines of up to $1,000
However, a person's actual sentence will depend on the facts of their case, any prior criminal history, and the particular judge's sentencing philosophy.
Legal Defenses for Lewd Conduct in a Public Place Charges
If you have been charged with engaging in a lewd act in a public place under Penal Code 647a PC, a good criminal defense attorney may be able to help you defend against the charges. Some common legal defenses to lewd conduct in a public place include:
You Did Not Touch Another Person
For you to be convicted of lewd conduct, the prosecutor must prove that there was physical contact between you (as the defendant) and the alleged victim. If there was no physical contact between you and the victim you could use this defense to fight your charges. There are a few ways to prove that you did not touch another person in a lewd conduct charge. One way would be to provide an alibi for the period in question. Another way would be to show that there was no physical contact between you and the other person. This can be done by providing video footage or eyewitness testimony.
You Did Not Engage in a Lewd Act
If you believe that you did not engage in lewd conduct, you can use this defense to fight your charges. For example, you could argue that the prosecution does not have enough evidence to prove that you committed a lewd act. You can also argue that you did not intend to commit a lewd act or that the conduct in question was not lewd.
You were Falsely Accused
If you are innocent of the charge, you will need to present evidence that shows that you did not engage in the alleged conduct. This may include witness testimony, video footage, or other types of evidence. If you can show that the allegations against you are not true, then the charges could be dropped.
You Believed That No One Was Present
If you are facing lewd conduct charges and you believed that there was no one present who would be pissed, you may be able to use this as a defense. This defense may be successful if you can show that you had no way of knowing that there was someone who would be offended by your actions.
You Did Not Intend to Arouse or Gratify your Sexual Desire
If you are facing charges of lewd conduct for touching yourself, you may be able to defend yourself by arguing that you were not touching yourself for sexual gratification. This defense may be successful if you can show that you were touching yourself for a non-sexual reason, such as to relieve an itch or to adjust your clothing.
The Police Used Entrapment
To successfully use the entrapment defense, you must show that the police induced you to commit the crime that you are charged with. For example, if the police offered you money or other incentives to engage in sexual activity, this could be considered entrapment. Additionally, if the police used coercion or threats to get you to commit the crime, this could also be considered entrapment. If you can show that the police used entrapment or engaged in other misconduct, the charges against you may be dropped.
You Were Not in a Public Place
This defense may be asserted if you can show that you were not in a public place at the time of the alleged offense. To prove this, you must show that you were in a private residence or another location not open to the public.
Is Lewd Conduct a Form of Entrapment?
No, lewd conduct is not a form of entrapment. Entrapment occurs when someone is induced or persuaded by law enforcement to commit a crime that they wouldn't have otherwise committed. If the police use coercion, threats, or other underhanded tactics to convince someone to commit a crime, that could be considered entrapment. However, if the police simply provide opportunities for someone to commit a crime, that is not typically considered entrapment.
Must I Register as a Sex Offender If I’m Convicted of Lewd Conduct?
No. However, various factors can determine whether you will be required to register as a sex offender. These factors include:
- Whether you have been previously convicted of a sex offense. Having a previous sex offense conviction can lead to a sex offender registration.
- The severity of the offense. For example, if you are convicted of lewd conduct with a minor and the minor was under the age of 14 at the time of the offense, you will be required to register as a sex offender; or
- If you were in a position of power over the victim at the time of the offense. For example, if you are a teacher and are convicted of lewd conduct with a student, you will be required to register as a sex offender.
Can a Lewd Conduct Conviction be Expunged?
A conviction of lewd conduct can be expunged in some cases if the offender meets certain requirements. The offender must typically complete a period of probation and stay out of trouble for a specific period. The offender may also be required to undergo treatment or counseling.
Court Options During Sentencing
If you are charged with lewd conduct, you may have the following opportunities to avoid a criminal record:
- Informal resolution— With the help of a qualified attorney, there may be an opportunity to avoid criminal charges by negotiating with the district attorney’s office. Perhaps your attorney can convince the prosecutor to dismiss the charges or reduce the charges to a non-criminal offense.
- Pretrial diversion —This program is only available to first-time offenders. The program requires the offender to complete a series of conditions, which would include counseling and community service. If the offender completes the program, the charges will be dismissed.
- Trial— If you choose to take your case to trial, you have the right to a jury trial. If you win, you will be found “not guilty” and the charges will be dismissed. If you lose, the judge will decide your sentence.
An experienced attorney can help you better understand your options and the possible outcomes of your case.
There are many related crimes to lewd conduct in a public place. These crimes can be charged in addition to lewd conduct or instead of lewd conduct.
Indecent Exposure (Penal Code 314 PC)
Indecent exposure is the intentional exposure of an individual's private parts in a public place. The act may be done in the context of a sexual act or to arouse.
The act of indecent exposure can be charged as a misdemeanor or felony, depending on certain factors. A first-time offender would likely be charged with a misdemeanor.
Penalties for Misdemeanor Indecent Exposure
A misdemeanor is punishable by up to six months in jail and a fine of up to $1,000.
Penalties for Felony Indecent Exposure
Felony punishable by up to three years in prison, a fine of up to $10,000, or both.
If the offense involves lewd conduct with a child under the age of 14, the penalty is a fine of up to $10,000, imprisonment for up to eight years, or both.
If the offense involves an individual who is younger than 18 and the offender is a person of authority (such as a teacher), the penalty increases to a fine of up to $10,000, imprisonment for up to one year, or both. Indecent exposure can be charged in addition to lewd conduct.
Child Enticement (Penal Code 647.6 PC)
Child enticement is defined as an attempt to lure a child into a location for sexual misconduct. For example, a man who approaches a young girl in the park, asks her to come to play with him, and tells her that he has candy in his car, is guilty of child enticement.
Penal Code 647.6 PC is a wobbler, meaning the prosecutor has the discretion to charge it as a felony or misdemeanor based on the circumstances of the crime and the defendant’s criminal history. If charged as a misdemeanor, the penalties can include:
- Detainment in the county jail for 12 months; and,
- Fines of up to $5,000.
If charged as a felony, the penalties for child enticement can include :
- Detainment in the county jail for three years; and,
- Maximum fines of up to $10,000.
Child enticement is a “strike” offense under California’s “three strikes law”; meaning, if you are charged with child enticement and have a prior strike on your criminal record, you are subject to a longer prison sentence. Child enticement can be charged in addition to lewd conduct.
Unlawful Sexual Intercourse with a Minor (Penal Code 261.5 PC)
Penal Code 261.5 PC makes it a crime to have sexual intercourse with someone who is under the age of 18 – unless you are married to that person. This offense is commonly referred to as “unlawful sexual intercourse with a minor” or “statutory rape.” Penal Code 261.5 PC is a California “wobbler” offense that can be charged as either a misdemeanor or a felony, depending on the facts of the case.
The prosecutor will charge statutory rape as a felony if:
- The defendant is more than three years older than the victim, or
- The defendant used force or violence against the victim, or
- The victim was unable to give consent because they were intoxicated or unconscious.
Otherwise, the prosecutor will usually charge statutory rape as a misdemeanor. The potential punishment for statutory rape as a felony in California is up to four years in California state prison. The potential punishment for statutory rape as a misdemeanor in California is up to one year in county jail.
The penalty for statutory rape will also be increased to up to eight years in prison if:
- The victim was under 14 years of age at the time of the crime, or
- The defendant was 21 years of age or older at the time of the crime.
Oral Copulation of a Person Under the Age of 18 (Penal Code 288a PC)
In California, it is a crime to engage in oral copulation with someone under the age of 18. Oral copulation is defined as any contact between the mouth of one person and the sexual organs or anus of another person. There are three degrees of this offense:
- Oral copulation of a person under the age of 18 with someone over the age of 21 is punishable by up to one year in county jail and/or up to a $1,000 fine.
- Oral copulation of a person under the age of 18 with someone over the age of 18 is punishable by up to three years in prison.
- Oral copulation of a person under the age of 16 with someone over the age of 21 is punishable by up to eight years in prison.
Oral copulation is also a form of lewd and lascivious behavior (Penal Code 288a PC) and can be charged as a felony or a misdemeanor.
Unlawful Sexual Intercourse with a Minor (Penal Code 289 PC)
Unlawful Sexual Intercourse with a Minor (Penal Code 289 PC) Unlawful sexual intercourse with a minor is one of the most serious statutory rape crimes in California. The offense is committed when an adult (someone over the age of 18) has sexual intercourse with a minor (someone under the age of 18).
However, it is important to note that this crime is prosecuted as rape, regardless of whether the sexual intercourse was consensual. This is because a minor cannot legally consent to sexual intercourse. Penalties for a statutory rape conviction include a mandatory prison sentence of three (3) to eight (8) years, as well as a fine of up to $10,000.
If the defendant is 21 or older and the victim is under the age of 16, the penalties are even more serious. In these cases, the penalties for statutory rape include a mandatory prison sentence of seven (7) to thirteen (13) years, as well as a fine of up to $25,000.
Disturbing the Peace, Penal Code 415
The Penal Code 415 disturbing the peace charge is defined as a person unlawfully fighting in a public place or using offensive words in a public place that tend to provoke a violent reaction. This offense can be charged as either a misdemeanor or an infraction. A misdemeanor is punishable by up to six months in jail and a fine of up to $1,000.
Find a Criminal Defense Attorney Near Me
If you have been charged with lewd conduct in public, you will want to hire a criminal defense attorney to help you through the criminal process. Our experienced criminal defense attorney at Los Angeles Criminal Attorney may be able to help you understand the charges against you, and help you create a defense against the charges. Call us today at 424-333-0943 for a free and confidential consultation.