California law makes it illegal to engage in sexual activity in public, if you knew or should have known that someone present would be offended by your conduct.

In other words, having sex in public isn’t illegal by itself. It only rises to the level of a crime if the individuals engaging in sexual activity did so in a way that someone else could see and become offended.

In these cases, the individuals involved can be charged with “Lewd conduct in public.” Lewd conduct is a misdemeanor, punishable by up to six months in county jail. However, these charges are often negotiated to lesser offenses that carry little to no jail time.

A conviction for lewd acts does not carry mandatory sex offender registration, but lewd conduct is typically charged in conjunction with indecent exposure, which does require sex offender registration.

Despite being a relatively minor crime, if you or someone you know has been charged with lewd conduct, it’s important to speak with a skilled Ventura sex crimes attorney. Robert M. Helfend has more than 30 years of experience defending California residents accused of lewd conduct and other sex crimes.

Reach out to Ventura criminal defense attorney Robert M. Helfend today at 805-273-5611 for a free consultation.

California Penal Code 647a PC – Lewd conduct in public

Lewd conduct in public appears in California Penal Code 647a PC, which defines the crime as:

  1. Will touching of their own or someone else’s genitals, buttocks or female breasts,
  2. Done with the intent for their or someone else’s sexual gratification, or to annoy or offend another person, 
  3. In a public place or a place open to the public view,
  4. Where someone else who might have been offended was present, and
  5. The defendant knew or reasonably should have known that another person who might’ve been offended by their conduct.

The definition above is a little fuzzy, so we’ll clarify some elements below.

The crime must be intentional

The defendant’s touching of genitals, buttocks or female breasts must have been done with the intent to sexually arouse or gratify themselves, or offend someone else. In other words, if the touching was done by accident, it’s not lewd conduct in public.

For example, if two individuals are standing in close proximity on a crowded public transit and the defendant accidentally brushes up against the other person, that’s not lewd conduct.

What is ‘public’ under California law?

California courts have traditionally defined “public” as anywhere that is in public view.

For example, lewd conduct could occur if two people engage in sexual activity on the balcony of their apartment (even though it’s a private residence) if someone from the street or from a neighboring building could see it.

Was it likely another party could be present?

Lastly, in order to convict someone of lewd conduct in public, a prosecutor must show that there was a likelihood that other people would be present and offended by it. This is where many lewd conduct in public cases start to fall apart and can be reduced or dropped entirely.

For example, lewd conduct would not be applicable in a place like an abandoned warehouse late at night. But if two people were engaging in sexual activity on the beach during crowded tourist season, they could likely be charged with lewd conduct.

Penalties for a lewd conduct in public conviction

Lewd conduct in public is a misdemeanor offense. It carries a sentence of up to 6 months in county jail and a maximum fine of $1,000.

However, lewd conduct charges are often negotiated down to lesser offenses that result in misdemeanor “summary” probation. As terms of your probation, you might be required to:

  • Complete community service hours
  • Attend counseling
  • Refrain from returning to the location of the offense

As we mentioned above, lewd conduct in public typically doesn’t carry mandatory registration as a sex offender. However, if your lewd conduct charge is paired with indecent exposure, an indecent exposure conviction carries mandatory lifetime registration as a Tier 3 sex offender.

Defenses against lewd conduct in public charges

There are several defenses that a skilled lewd conduct attorney can raise against lewd conduct charges. These include:

  • The touching wasn’t intentional
  • Lack of knowledge that someone else could be present to be offended
  • False accusation/mistaken identity

If you’ve been charged with lewd conduct in public, don’t hesitate to contact Ventura criminal defense attorney Robert M. Helfend. With more than 40 years of experience, he will aggressively fight for your rights and help you get the best possible outcome in your case. Contact us today at 805-273-5611 for a free initial consultation.