Lewd Conduct in Public
Penal Code 647a
California Penal Code 647a PC specifically defines and penalizes lewd conduct in public. Acts punishable under this statute include touching your own or another person’s genitals, buttocks, or a female breast, for the purpose of sexual gratification, when you know or should know there are people present who would be offended by it.
Also punishable under this statute is the act of soliciting lewd conduct in public. This offense is a misdemeanor, and offenders convicted under this code shall be meted with a punishment of 6 months in jail and fines of up to $1000.00. However, it is worth mentioning that a conviction under this code does not result in Sex offender registration.
“Lewd or dissolute conduct,” as contemplated under this law, is defined as touching your private parts (or another’s private parts). The touching must be done for the purpose of sexual gratification or to annoy or offend someone else.
Private parts may refer to the genitals, the buttocks, or a female breast.
As can be gleaned from the penal statute, sexual activity in itself, even if done in a public place, is not a crime. It will only be characterized as “lewd conduct” and thus punishable when you know or should have known that there is likely to be someone present or watching who would be offended by your conduct.
The fact that you have been charged does not necessarily mean that you are already found guilty of the offense. There are a number of legal defenses available to those who are being charged with lewd conduct in public places. Some of the more common defenses are as follows:
- There was no touching of your private parts or someone else’s.
- Even if there was touching, the same was not done for sexual gratification.
- You reasonably believed there was no one present who would be offended.
- It was not done in a public place or a place open to public view.
- The police used entrapment or engaged in other misconduct.
When is the crime of lewd conduct in public committed?
Lewd conduct in public is committed when you engage in, or you solicit anyone to engage in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
For one to be convicted of an offense, elements to the offense must be established beyond reasonable doubt. For the crime under Penal Code 647a, the prosecutor must prove the following “elements of the crime”:
- you willfully engaged in the touching of your own or another person’s genitals, buttocks, or a female breast;
- you did so with the intent sexually to arouse or gratify yourself or another person, or to annoy or offend another person;
- at the time that you did so, you were in a public place or a place open to the public or to public view;
- someone else who might have been offended was present; and
- you knew or reasonably should have known that another person who might have been offended by your conduct was present.
a.) “Lewd” or “dissolute” conduct
The terms “lewd” and “dissolute” as contemplated under this section refer to the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance, or offense.
While the statute in itself does not contain any language regarding intent, courts have interpreted this language as pertaining to activity of a sexual nature. The burden of having to prove intent in relation to the act of touching rests with the prosecutor. However, intent can be gleaned from the surrounding circumstances of each fact of the case.
“Public” as contemplated under this Penal Code may refer to any of the following:
- a public place,
- a place open to the public, or
- a place exposed to public view.
The word “public’ as used under this section has been interpreted broadly by courts such that it included a private movie booth at an adult bookstore, a car parked on a public street, and a common hallway in an apartment building among others.
d.) A third party must be offended
Engaging in sexual activity in public is not necessarily illegal in California. It only rises to the level of lewd conduct if the offender knows or reasonably should know of the presence of someone who is likely to be offended. More than the mere possibility of being seen by someone else is required. There must be some actual likelihood that third persons are present.
Therefore, there is a great chance that a person charged be acquitted of the offense if they reasonably believed that they would not be seen by anyone else, or no one viewing the activity would be offended.
What are the penalties for a 647a PC conviction?
Lewd conduct in public is a misdemeanor offense and is punishable with up to six months in county jail, and/or a fine of up to $1,000.
However, in some instances, judges grant misdemeanors and impose the probation with little or no jail time instead.
It bears stressing that a conviction for lewd conduct in public does not require that you register as a sex offender. However, in almost all instances, prosecutors will charge it together with indecent exposure, an offense that requires sex offender registration.
Sting operations for Lewd Conduct in public places
In sting operations, the undercover cop is pretending to be a gay man in order to lure others to commit the crime of lewd conduct in public.
Police tend to set up lewd conduct sting operations in bathrooms (especially park and beach area bathrooms), public parks, shopping malls, adult book stores, gymnasiums, and alleys. The cops usually claim the undercover stings are in response to “citizen complaints.” Often this means complaints from people who don’t like gay men hanging out and cruising in the area.
Legal Defenses to Lewd Conduct in Public charges
Legal defenses may vary on a case-to-case basis depending on the facts of each case. However, the most common defenses include the following:
1. You did not engage in the act of touching for sexual gratification purposes.
It should be recalled that the burden to prove the elements of the crime rests with the prosecution. With the assistance of an experienced attorney, you may be able to discredit prosecutions witnesses.
2. The touching was not for sexual gratification.
Intent must be proven by the prosecution in the same manner as the conduct. There may be instances when the touching was appropriate under the circumstances, such as when you were only touching yourself in a bathroom stall because you needed to urinate. Or maybe you were washing up or rubbing yourself because your genital area itched.
3. You reasonably believed there was no one present who would be offended.
It could have been that the offender has been diligent enough to have conducted surveillance over the place, which gave him a reasonable belief that no one would be present. This is one of the more common defenses to charges of lewd conduct. Unless you reasonably should have known that someone would likely see you and be offended, you cannot be found guilty under Penal Code 647(a).
4.) You were not in a public place or a place open to public view.
Sexual activity that takes place, especially if done on private property, is not in itself a crime. It will only rise to the level of a crime when the public can view it. Thus, if you were engaging in sexual activity in a private place - not open to public view, there can’t be lewd conduct.
5. The police used entrapment or engaged in other misconduct/ irregularities.
Police officers are precluded from inducing another person to commit a crime he would not otherwise commit were it not for the inducement. Acts prohibited include using pressure, fraud, harassment, threats, or flattery. Merely initiating criminal activity, or presenting an opportunity to commit a crime, generally does not constitute entrapment.
If it is established that the police engaged in improper entrapment and used pressure, fraud, harassment, threats, or flattery to induce the commission of the crime, then charges against you may be dismissed.
If you have been arrested or accused of a crime, speak with our criminal defense lawyers as soon as possible. Request your free consultation by calling us at (626) 827-7222.
Related Crimes
Lewd conduct in public places will only prosper if all elements of the crime are proven beyond reasonable doubt. The lack of one or more elements, however, does not necessarily mean total exoneration. It could be that the act constitutes a related offense. Crimes similar or related to Penal Code 647a are as follows:
1.) Penal Code 314 – indecent exposure
“Indecent exposure” consists of willfully exposing one’s genitals in the presence of third parties who would be offended. Similar to lewd conduct, Penal Code 314 requires that the exposure is for the purpose of gratifying oneself or sexually offending other people.
In most cases, prosecutors will prefer to charge California Penal Code 314 indecent exposure instead of Penal Code 647a; or simultaneously charge two offenses to gain leverage.
The problem with Penal Code 314 is that conviction will necessarily result in registration as sex offender, unlike Penal Code 647a.
2.) Penal Code 602 trespassing
California Penal Code 602 PC trespassing defines and penalizes the act of entering someone’s property without permission. This offense has nothing to do with lewd conduct cases. However, this Penal Code section is preferred for plea bargaining purposes because it carries less of a stigma on one’s criminal record.
3.) Penal Code 415 disturbing the peace
Penal Code 415 PC defines the crime of “disturbing the peace.” It is committed by making unreasonable noise so as to disturb your neighbor, getting into a fight with someone, or using certain offensive language or fighting words. Disturbing the peace charges can be filed as either a misdemeanor or a noncriminal infraction.
This is another common plea bargain offense. Just like criminal trespassing, disturbing the peace has nothing to do with lewd conduct in public. However, this is also preferred by defendants for plea bargaining purposes because it carries a lesser stigma than lewd conduct in public places.
Moreover, it can be treated as an infraction that results in no criminal record.
4.) Penal Code 647(d) – loitering in or about an open toilet to engage in or solicit lewd conduct
Penal Code 647(d) is the subsection that punishes loitering in or about a toilet open to the public for the purpose of engaging in or soliciting any lewd, lascivious or unlawful act. The crime contemplated under this section makes it very specific that the act of loitering must be done for the sole purpose of engaging in or soliciting the lewd conduct.
Loitering in or about a public toilet under this section is a misdemeanor and is punishable with up to 6 months in jail and fines of up to $1000.00. Sex offender registration is also not required.
5.) Penal Code 288 PC – lewd acts with a minor
California Penal Code 288 defines and penalizes lewd and lascivious acts involving a child. PC 288 is a “wobbler” offense, which means that it may be charged as a misdemeanor or a felony depending upon their case circumstance and their prior criminal history. However, if convicted of a sex crime under this statute, you can expect to become a lifetime inclusion on California’s sex offender’s registry list.
Penal Code 288 and Penal Code 647a are similar in that they both involve lewd acts. Distinction lies in the fact that Penal Code 288 specifically deals with acts where minors are involved, whereas PC 647a may not necessarily be committed against minors only. Moreover, Penal Code 288 is a serious offense and may even lead to lifetime registration as a sex offender.
6.) Penal Code 647(i) and 647 (j) — California’s “Peeping Tom” laws
California Penal Code 647(i) PC, a misdemeanor offense, punishes the act of peeking into a home or inhabited building while loitering on another person’s private property. A conviction for this offense is punishable by up to 6 months in jail and a fine of up to $1000.00. The crime is commonly referred to as “peeking while loitering” or “unlawful peeking. “
On the other hand, 647j PC is the law that punishes a person who unlawfully invades someone else’s privacy. A conviction for this offense may be a misdemeanor and is punishable by up to 6 months in jail and a fine of up to $1000.00.
There are three ways a person can incur invasion of privacy charges, namely: by using a device (like binoculars) to view someone inside a private room, by secretly photographing or recording a person’s body under the clothing for sexual arousal, or by secretly recording or photographing someone in a private room to view that person’s body.
7.) Penal Code 261.5 PC – statutory rape
Penal Code 261.5 PC is the law that punishes any person who engages in sexual intercourse with a minor under the age of 18. Consent of the minor is immaterial under this section, and the act may still be considered statutory rape even if the minor willingly participated, as the law deems minors to be legally incapable of consenting to have sex. The legal age of consent under California state law is 18 years of age, unlike some states. This offense is a wobbler; thus, prosecutors may charge this offense as a misdemeanor or a felony.
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