Along with charges like indecent exposure, the criminal offense of lewd conduct may seem like a relic of a bygone era when government officials acted as a sort of “moral police” that regulated people’s behavior more closely and punished what could be better described as immoral – as opposed to illegal – conduct. Nevertheless, lewd conduct remains a criminal offense in California that can result in the imposition of penalties such as periods of imprisonment and/or the assessment of fines.
Lewd conduct is a crime with specific elements: if one or more of these factual elements are not present in your case, then a judge or jury is not able to find you guilty of lewd conduct. Defenses to a charge of lewd conduct, then, typically center on your criminal defense attorney showing that one or more of these essential elements are missing.
What is Lewd Conduct in Sacramento?
California Penal Code 647(a) criminalizes committing lewd conduct in a public place or soliciting someone else to commit lewd conduct in a public place. For this offense, “lewd conduct” encompasses any touching of your or another’s “private parts” – the genitals, buttocks, and/or female breast – when such touching is accomplished for the purpose of gratifying one’s sexual desires and/or to annoy or offend another person.
Stated slightly differently, in a prosecution for lewd conduct the prosecutor must prove the following:
- You willfully touched your own genitals, buttocks, and/or (female) breast or those belonging to another;
- Your intention in doing so was to gratify your own or another’s sexual desires and/or annoy or offend another person who might have been present;
- You committed this act in a public place or any other place that was open to members of the public (such as a retail establishment or a park);
- Another person was present or could have been present; and· This other person would reasonably have been offended or annoyed by your actions.
In Sacramento and throughout California, lewd conduct is a misdemeanor and is punishable by up to six months of jail and/or a fine of up to $1,000. Unless there are aggravating circumstances in your case, a judge will likely order you to participate in an informal or summary probation. This may not require you to serve any jail time at all. While on probation, however, you may be ordered to pay fines and/or participate in counseling.
California Penal Code 647(a) (Amended by Stats. 2018, Ch. 246, Sec. 2. (AB 324) Effective January 1, 2019.)
Except as provided in paragraph (5) of subdivision (b) and subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) An individual who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
Common Defenses to Lewd Conduct Charges in Sacramento
Attacking the strength of the prosecution’s evidence establishing the essential elements of the offense is one way of defeating a charge of lewd conduct. For example, suppose that Don is charged with lewd conduct after police officers observe Don allegedly masturbating in a public restroom. Don’s defenses may include:
- That he was not, in fact, touching his private parts. If Don’s back was turned to police officers and/or other witnesses present in the restroom do not corroborate the police’s narrative that Don was touching his or another’s “private parts,” then the prosecution’s case may fail.
- That he did not touch himself for the purpose of annoying or offending another or satisfying his or another’s sexual desires. If Don had a cut on his genitals and was touching his genitals either to clean the wound, alleviate pain, or apply a bandage (for example), the prosecution’s case would (again) fail.
- That he did not commit the acts in a place that was public or reasonably accessible to the public. If Don committed the acts in his own home with the curtains drawn and a “nosy neighbor” saw Don’s actions through a slit in the curtains, Don is unlikely to be convicted – even if the person who saw him was offended at what he or she observed; and/or
- A reasonable person who observed the acts would not have been annoyed or offended. That is, if someone saw Don’s actions and was offended, but a reasonable person observing Don would have had no reason to be annoyed or offended, then Don may not have committed lewd conduct.
Additionally, many lewd conduct charges arise because law enforcement officers set up “stings” to try and entice and encourage individuals to commit lewd acts in public. An undercover officer at a sex store, for example, may attempt to entice customers into touching the officer or themselves. Police tactics like these that are unfair, unduly coercive, and that may leave a person feeling as if he or she has no other choice but to engage in the lewd conduct may lead to a defense of entrapment. This defense is effective when the person accused of lewd conduct was subjected to law enforcement pressure and efforts that would have left a reasonable person feeling as if he or she must engage in lewd conduct.
No Registration Requirements for Lewd Conduct Defendants
Lewd conduct, in and of itself, is not typically an offense which requires the person to register as a sex offender upon conviction. However, there are two caveats to this general rule:
(1) First, a judge may nonetheless order registration if the judge believes that your act of lewd conduct had a sexual motivation to it; and/or
(2) Second, prosecutors often charge a person with lewd conduct and another registrable offense such as indecent exposure. The prosecutor will then ask the defendant plead to the offense that includes registration in exchange for an agreement to dismiss the lewd conduct charge.
Thus, while California Penal Code 290 does not automatically require registration as a sex offender upon conviction, there are circumstances under which registration nonetheless becomes a part of your sentence.
Reach Out to a Sacramento Lewd Conduct Defense Lawyer Today
While lewd conduct does not by itself carry with it some of the severe registration penalties that other offenses like indecent exposure, an unwary defendant can still find him – or herself facing serious consequences and penalties in a lewd conduct prosecution. In these prosecutions (as is true in all other prosecutions), it is crucial that the prosecution be held to its burden of proving guilt beyond a reasonable doubt.
Call 24/7 for a free consultation with a Sacramento sex crime attorney to discuss your options.
Recommendation off the charts for Michelle Lee Spaulding
I am an executive for a fortune 500 company and have worked with many attorneys in my line of business, I then found my self needing an attorney for my child and with great luck we selected Michelle. Her expertise, professionalism and ability to explain the law and what we were facing was so refreshing. Her ability to show compassion and guidance yet battle the DA and judge for what was fair and acceptable. She was always available for questions and either answered the phone or would get right back to us. She knew her stuff and I highly recommend to her anyone in need of a good attorney that is reasonable priced and very honest and loyal. Thank you Michelle
Reviewer: Elizabeth — June 8, 2013