Acts of a sexual nature in public places

Lewd conduct involves acts of a sexual nature in public places. Many arrests for lewd conduct (California Penal Code Section 647(a)) involve undercover “sting” operations that target gay men. Arrests are made for acts which include receiving or giving oral sex in public, exposure of genitals in public and public masturbation. In these operations police frequently target public rest rooms and beaches where undercover officers pose as gay men and try to “bait” persons into sexual behavior. Often, there are no witnesses to the offense because the undercover officer is the only other person in the restroom at the time the act is committed. This may result in a he said/ he said situation with two conflicting statements, one by the officer and the other by the person charged with the offense.

Charged with engaging in lewd conduct

Prosecution must prove that a person charged with engaging in lewd conduct willfully engaged, while in a public place, in touching their, or another person’s, genitals, buttocks or female breast with the intent to sexually arouse or gratify themselves or another person. In other cases, another successful prosecution method might involve proving that the purpose of the act was to annoy or offend another person. There must be another person in the public place who might be offended by the conduct. The defendant must reasonably believe there was no one present who would be offended. Finally, the prosecutor must prove that at the time the defendant committed the conduct, he knew or should have known that someone might be offended by the conduct.

Successful resolution to these charges

Successful resolution to these charges requires a solid defense prepared by counsel experienced in such matters. Often, undercover officers may use entrapment or engage in other misconduct to get the target to expose himself and or act inappropriately. Such behavior on the part of the undercover officer may “cross the line” and could present an opportunity for a good defense. A thorough investigation of police methods and tactics may show that the current situation resulted more from police actions than anything the defendant did. Lewd conduct can only be charged as a misdemeanor. That means that the maximum sentence is a jail sentence of one year. In some cases, the prosecution may require that the person must be documented as a sex offender.

Daniel R. Perlman
The Law Offices of Daniel R. Perlman