UPDATED: June 19, 2018
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Indecent exposure is the knowing exposure of one’s genitals, or other private anatomical parts, in the presence of another while disregarding the offensive, insulting, or frightening effect it may have. Depending on the circumstances surrounding the commission on an indecent exposure offense, a defendant could be charged with a felony or misdemeanor level offense. Read on to learn more about what is considered indecent exposure, some possible defenses, and the penalties and consequences of an indecent exposure conviction.
What Is Indecent Exposure?
Each state has enacted statutes that define which acts of exposure will constitute a criminal offense. For example, in Alabama, indecent exposure focuses on the exposure of genitals. Arizona, conversely, includes exposure of the nipples of the breast and Texas includes exposure of the anus as different acts which qualify for an indecent exposure charge. A few states require that the exposure occur in a public place.
A basic indecent exposure charge is usually classified as a misdemeanor and generally involves exposure directed towards another adult. If there are aggravating circumstances, a charge can be upgraded to a felony level offense, and if there is any touching, the charge could be upgraded to sexual assault. There are two general ways that a defendant’s indecent exposure charge can be elevated to a felony. This first is by subsequent convictions. Some states, like Alabama, will enhance a misdemeanor punishment for a second conviction for indecent exposure. This is a state specific enhancement.
The second way that a charge can be elevated is through an exposure that involves a child. Virtually every state has laws which prohibit indecent exposures to minor children. Some simply title the charge as indecent exposure, while others will call the same charge indecency with a child or lewd conduct with a child. Regardless of the name, the focus is not just the conduct of exposure, but also that the conduct was directed to or with a child. It can include a defendant exposing his genitals to a child, or requiring a child to expose his genitals to an adult.
Defenses for an Indecent Exposure Charge
Because indecent exposure is a mix of intentional and reckless conduct, a defendant tends to have a little bit more to work with by way of a defensive strategy. The intentional component usually focuses on the exposure itself. For example, did the person actually intend to unzip his pants, or did he accidentally forget to zip when he left the restroom? If a defendant can show that the intent was an accident, he could negate the first mental state requirement of an indecent exposure charge.
The reckless component usually focuses on the conduct surrounding the exposure. For example, if a male defendant decided to publicly urinate on a fence (an intentional act), the question is if he was reckless about whether or not a child or others would see. If a defendant presents evidence that he took steps to avoid having others view his genitals, such as going to a section of fence where no other persons were located, then he could negate the reckless part of an indecent exposure charge.
For indecent exposure offenses, a common defense is to present a mistake of fact, regarding the age of the child. Essentially a defendant admits that the exposure occurred but he did not intend for the child to be the recipient. For example, a defendant decides to moon an ex-teacher, and is accidentally seen by some students.
Defendants also use this defense when they did not know the exact age of the victim. The defendant admits the conduct, but argues that he was not aware of the victim’s actual age. This is very similar to the mistake of fact defense for a sexual battery charge. As with sexual battery, some states do not recognize the mistake of fact defense for an indecent exposure with a child. If a defendant is successful with this defense or defensive theory, he may be found not guilty of indecent exposure with a child, but still found guilty of a general misdemeanor indecent exposure charge. Even though it is still a conviction, the results can be significantly different.
Punishment and Possible Consequences for an Indecent Exposure Conviction
A basic indecent exposure charge is usually considered a misdemeanor level offense. The punishment for a misdemeanor indecent exposure conviction is probation up to a year or two in jail and a fine. Defendants who are placed on probation may have to attend specialized counseling and refrain from using the Internet except for limited purposes. A few states require defendants convicted of a misdemeanor indecent exposure charge to register for a limited time as a sex offender. Virtually all states require defendants convicted of felony indecent exposure with children to register as sex offenders. Because the conviction is based on only an exposure (instead of a physical touching), the length of time a defendant is required to register is usually shorter, usually around ten years.
The punishment for a felony indecent exposure charge ranges from probation to thirty years in jail. The range will expand if a defendant is later charged with other sexually related charges. The probation for a felony indecent exposure charge also tends to be more intensive, requiring weekly reporting, weekly counseling sessions with a sex offender counselor, and restricted access to certain areas like parks, schools, and swimming pools.
After a defendant is convicted of indecent exposure, finding a job is more challenging because of the public stigma associated with indecent exposure charges. Employers tend to be more tolerant of misdemeanor convictions, but may be more hesitant with regard to convictions involving indecent exposures with children, because of potential liability issues. Similarly, some apartment communities will not rent to a defendant who is required to register as a sex offender after a conviction for indecent exposure to a child.