Indecent exposure may seem like a minor offense, but don’t let the misdemeanor charge fool you. Other charges can be added, and you can find yourself with a compounded legal problem that is far more serious than you first thought. And it doesn’t take much for the charge to be elevated to sexual assault.
Simple exposure of a person is a violation. A violation does not go on your record. However, when you have multiple indecent exposure violations it does go on your record, and it can affect your job prospects and bar you from renting a house or apartment. It will show up on your background check and most employers don’t want to hire people who have been convicted of a sex crime. The same for landlords. When they see that charge on your background report many just see a potential problem that they don’t want to deal with.
Harsh and unfair? Probably. But it is an unfortunate reality.
That is why it is important to have a good defense attorney in your corner. If there is any way you can avoid having a conviction on your record, you need to pursue it. If not, it can hold you back in many important areas of your life.
When You are Facing an Indecent Exposure Charge, You Need a Lawyer Committed to Your Best Interest
If you have been charged with an indecent exposure offense, good legal representation could help you get reduced charges or get the charges dropped completely. While this may seem like a lesser charge or a charge that isn’t as serious, it can still impact your life for a long time. The best thing you can do is get an experienced attorney to fight for you. The best thing you can do is call the Litvak Law Firm.
Overview of Indecent Exposure Offenses
The crime of indecent exposure is the act of a person revealing their genitals in a manner that is likely to be offensive or offend others. It occurs when he or she exposes the intimate parts of themselves to people, whether they look or turn away or don’t see the act. It can also include sexual activity in the public’s view.
Exposure becomes indecent when a reasonable person should or would know that his or her actions will or might be seen by other individuals and would alarm, offend, or arouse them. This could be in a public place like a park, store, or parking lot, or it could be through an open window or in a vehicle.
Indecent exposure charges are handled at the state level. In most states, it is a misdemeanor for a first offense. However, if there is touching involved, such as the offender touches a person while in the act of exposing themselves, the charge can be increased to a sexual assault crime. If the person exposes themselves to minors, the penalties are more severe.
The U.S. Supreme Court, in 1991, affirmed that all states have the right to outlaw or ban public nudity. The grounds for this are because it is the interest of the state to protect morality and societal order. Therefore, public nudity is NOT protected by the First Amendment of the United States Constitution as “free expression.”
New York Indecent Exposure Offenses
Under the NY Penal Law § 245.01: Exposure of a person it is illegal for a person to make visible his or her intimate or private body parts in a public place. It doesn’t matter if the parts are fully unclothed or just exposed, it is still considered an exposure offense. This includes the genitals for both men and women. For women, it also includes the part of the breast that is over the areola. In other words, showing the areola is indecent exposure for women.
This law does not apply to a woman who is breastfeeding an infant. It also does not apply to a person who is performing in an exhibition, play, show, or entertainment. It also does not apply to revealing the genitals accidentally, such as due to a clothing tear.
The motivation of the offender plays a significant part in whether the act is illegal. The person must do it willfully or on purpose with the intent to obtain sexual gratification or to offend others.
While this is considered a somewhat minor first offense, it is still a very complex charge. There is a lot of gray areas that leave some interpretation of what indecent exposure is. For instance, if you are in a somewhat secluded area and go skinny dipping in the lake, that may not be considered indecent exposure because you weren’t trying to shock or offend anyone. You were just going for a swim.
Other Charges Relating to Indecent Exposure
Several other charges relate to an indecent exposure charge. New York law Offenses Against Public Sensibilities, has several separate offenses that involve public nudity, each has specific parameters and harsher penalties.
- 245.00- Public Lewdness – A person exposes their intimate or private body parts intentionally in a lewd manner or commits a lewd act:
- In a public place
- In a private area where he or she could easily be seen from a public place, or from a private area with the intent or desire to be observed
- While trespassing under circumstances that would make it easy or probable that he or she could be seen by the lawful occupant of the space
- 245.01 – Exposure of a Person – New York’s Indecent Exposure law. A person is in a public place and exposes his or her intimate or private body parts (genitals for both men and women, breasts to include any portion or all of the areola for women). This does not apply to women who are breastfeeding or anyone who is entertaining or performing in a show, exhibition, or play.
- 245.02 – Promoting the Exposure of a Person – A person who promotes the exposure of a person. A person who knowingly and willfully, furnishes, operates, manages, owns, maintains, or conducts any public place or premise where a person in a public area appears with their intimate or private body parts (genitals for both men and women, breasts to include any portion or all of the areola for women) unclothed or exposed. This does not apply to women who are breastfeeding or anyone who is entertaining or performing in a show, exhibition, or play.
- 245.03 – Public Lewdness in the First Degree – A person exposes their intimate or private body parts intentionally in a lewd manner or commits a lewd act in a public place, or in a private area where he or she could easily be seen from a public place, or from a private area with the intent or desire to be observed and to alarm, seriously annoy or offend:
- The offender is 19 years old or older and intends to expose himself or herself to a person who is younger than 16 years old
- The offender commits the crime of public lewdness and has been convicted of a public lewdness offense within the preceding year.
If there are other circumstances such as the offender brandished a gun or they touched the person they exposed themselves to, the charges could be more serious. Often, they are elevated to sexual assault or other criminal charges.
What the Prosecutor Must Prove for an Indecent Exposure Conviction
When the prosecutors secure a conviction, there are certain articles of evidence that they must present. These are things that the prosecutor must prove to the judge or jury, showing sufficient evidence of a criminal act.
- They exposed themselves in the presence of another person – There has to be a person who was within sight of the offender exposed themselves. This does not mean that person saw them.
- They exposed their intimate or private body parts – This includes the genitals, buttocks, and female breasts with the areola visible.
- They exposed themselves in a public place – The place where they exposed themselves was public, Areas such as inside their private home or in their bedroom may be considered private. Public areas include:
- Parking lot
- They willfully exposed themselves – The person intended to expose themselves. This does not include accidents like a garment tear.
The prosecutor will have to prove these things beyond a shadow of a doubt in order to get the conviction. Even if no one sees the act, the sheer fact that someone could see it is enough to get an indecent exposure charge.
Penalties for Indecent Exposure Offenders
The penalties for indecent exposure in New York, as well as related charges, are not as severe as other crimes but can still carry jail time and fines.
- 245.00- Public Lewdness – Class B Misdemeanor
- Maximum 90 days in jail
- Maximum $500 fine
- Probation term of 1 year
- 245.01 – Exposure of a Person – Violation
- Maximum 15 days in jail
- Maximum $250 fine
- Community service
- 245.02 – Promoting the Exposure of a Person – Violation
- Maximum 15 days in jail
- Maximum $250 fine
- Community service
- 245.03 – Public Lewdness in the First Degree – Class A Misdemeanor
- Maximum 1 year in jail
- Maximum $1,000 fine
The severity of the penalties depends on several factors:
- The nature of the exposure
- Length of time the person was exposed
- If the exposure was directed at or intended for children
- If there was any physical contact
- If there was coercion of any kind, physical, verbal, psychological
- How graphic or lewd the exposure was
Indecent Exposure Defenses
If you have a charge against you for indecent exposure, your best defense against a conviction is to have a very good reason for exposing your intimate or private part of your body. This reason needs to turn the exposure into an accident, misunderstanding, or make it a neutral action. Or you can show that it falls under the two exemptions that NY law provides.
There are only two exemptions for public nudity under New York law:
- A woman breastfeeding an infant
- A person performing in a show, an exhibition, a play, or some form of entertainment
Some common indecent exposure defenses include:
- Mistaken identity – If the offender’s face was not visible or difficult to see because he or she was wearing a mask or the visibility in the area was low, you could easily become a victim of mistaken identity.
- Accidental exposure – You did not intend to expose yourself, it was not willful but was the result of an accident, such as a clothing tear. If you did not intentionally expose yourself in public then you are not guilty of the crime.
- No intent to expose to someone else – If you were in an area where you would typically not be seen by another person, such as in a hotel room or your own home without knowing that a window is not covered, giving people outside the ability to see you.
- Neutral Act – You did not expose yourself to offend or shock anyone, nor did you do it to gratify yourself.
- Insufficient evidence – The prosecutor must show that it was you who committed the act and that you do so willfully and intentionally. If he or she cannot prove that then they do not have sufficient evidence to convict you.
If you have been charged with indecent exposure you might think it isn’t a big deal. Don’t kid yourself. That seemingly minor charge can go south very fast. You need an educated, experienced criminal defense attorney looking out for your best interest. You need Igor Litvak of the Litvak Law Firm. Call today, (718) 989-2908, for your free consultation. You have certain rights when you have been charged with a crime. Make sure they are protected. Call today and get the legal representation you deserve.