California Penal Code § 647(a) PC prohibits lewd conduct in public. This is touching your or another person’s genitals, buttocks, or female breast, for sexual gratification, when you know or should know there are other people present who would be offended by it.
The language of the code section reads as follows:
647. Except as provided in paragraph (5) of subdivision (b) and subdivision (k), 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.
It is also a crime to solicit lewd conduct in public. A conviction is a misdemeanor punishable by
- up to 6 months in jail and
- fines of up to $1000.00.
Sex offender registration is not required.
To help you better understand how we fight charges of lewd conduct in public, our California criminal defense lawyers will discuss the following:
- 1. What is lewd conduct in public?
- 2. Penalties
- 3. Stings
- 4. Defenses
- 5. Related Crimes
- Additional Reading
In and of itself, sexual activity — even in a public place — is not a crime.
1. What is lewd conduct in public?
You violate California Penal Code 647a 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.
To convict you of lewd conduct in public, California prosecutors must prove beyond a reasonable doubt these five “elements” of the jury instructions:
- 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.
Let’s take a closer look at these elements.
“Lewd” or “Dissolute” Conduct
The terms “lewd” and “dissolute” mean the same thing under this section.
They simply refer to the touching of the genitals, buttocks, or female breast for the purpose of
- sexual arousal,
- gratification,
- annoyance or
- offense.
Intent to Arouse or Annoy
The statute does not itself contain any language regarding intent. It merely prohibits “lewd or dissolute conduct.”
However, in keeping with the traditional definition of “lewd,” courts have interpreted this language as pertaining to activity of a sexual nature.
One appellate court has said the test is “whether a reasonable person would understand with reasonable certainty that his conduct is proscribed.”
Activity that is not intended to arouse or annoy anyone sexually is not prohibited under the statute.
Example: In a public restroom, you pull down your pants to wash your genital area. Since you have no intent to arouse or annoy anyone, you are not guilty of lewd conduct.
“Public” Location
To violate Penal Code 647a, lewd conduct must occur in:
- a public place,
- a place open to the public, or
- a place exposed to public view.
California courts have interpreted the word “public” very broadly. Places they have found to be public include, among others:
- a private movie booth at an adult bookstore,
- a car parked on a public street,
- a common hallway in an apartment building,
- the area behind the service counter in a men’s clothing store, and
- a massage parlor.
Locations such as
- your home,
- your hotel room, and
- your closed place of business,
are not public places.
However, the section may still be violated if one of these places is exposed to public view. So if the curtains or blinds are open, sexual activity in an otherwise private place may become a crime.
The Requirement that a Third Party be Offended
It’s not inherently illegal in California to engage in sexual activity in public. It’s only illegal if you know — 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.
The upshot is that most people arrested for lewd or dissolute conduct are factually innocent. Even if they engaged in public sexual activity, they reasonably believed that:
- they would not be seen by anyone else, or
- no one viewing the activity would be offended.
Lewd conduct can result in a fine and/or jail time.
2. Penalties
Lewd conduct is a misdemeanor offense. The maximum punishment is:
- up to six months in county jail, and/or
- a fine of up to $1,000.
As a practical matter, however, judges often grant misdemeanor (also known as “summary” or “informal”) probation with little or no jail time.
Conditions of PC 647a probation often include
- fines,
- counseling,
- an AIDS test, and
- a requirement that you stay away from the location.
A conviction for lewd conduct in public does not require that you register as a sex offender. However, prosecutors often charge it together with indecent exposure, an offense that does require sex offender registration. They will agree to drop the lewd conduct charge only if you plead guilty to indecent exposure.
3. Stings
How a Sting Operation Works
In most of the sting operations, the undercover officer is pretending to be a gay man out cruising.
Example: A decoy officer lurks in a park bathroom until a guy who appears to be gay walks in. He’s trying to bait the suspect into exposing himself, masturbating, or agreeing to a sexual act. When the man does, or agrees to do one of these things, the officer arrests him.
Other lewd conduct sting cases may involve police surveillance of discrete public locations.
Example: Two men are masturbating each other in the bushes in a remote section of Griffith Park. Unbeknownst to them, the LAPD has been surveilling the area for just such an activity. The cops rush in and “bust” the suspects in the act.
In both of these scenarios, the men arrested reasonably believed they were in a place where no one else would be offended by the conduct. In the decoy sting situation, the undercover was pretending to be looking for a hookup. In the Griffith Park example, the guys selected a desolate location precisely so that no one would see and take offense.
They had no reason to believe a third party was present who would be offended. Therefore, their activity (even if it involved sex in public) does not violate the law.
Places Where Lewd Conduct Sting Operations Tend to Happen
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 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.
While there are numerous places where the stings have occurred, here are a few that we frequently see:
- Griffith Park in Los Angeles.
- The bathrooms at the Beverly Center, 7th floor outside Bloomingdale’s.
- The bathrooms at the Glendale Galleria, outside JC Penny’s.
- Davis Park in Valencia.
- The bathrooms at Brea Dam Park in Fullerton.
- The bathrooms at the beach in Long Beach.
- Roeding Park in Fresno.
Most guys who get arrested didn’t even go to the location looking to cruise or hookup. Rather, they walked unsuspectingly into a trap.
If you enter a bathroom or public location and feel that something’s not right, then leave. Don’t look at the decoy and don’t interact with him. Just go.
4. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as lewd conduct in public. In our experience, the following five defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.
Nothing You Did Qualifies as Lewd Conduct in Public
Prosecutors overcharge defendants all the time. In these cases, we would compile all the available evidence to show that there is “reasonable doubt” as to your guilt. Examples include video surveillance video and eyewitness accounts.
You Touched Yourself Not for Sexual Gratification
We find this to be a strong defense because prosecutors have no way of getting inside of your head and knowing what you really intended.
Perhaps 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.
As long as the D.A. cannot prove beyond a reasonable doubt your conduct stemmed from a sexual or offensive intent, your lewd conduct in public case should be dismissed.
You Reasonably Believed There Was No One Present Who Would Be Offended
We rely on this defense when our client believed they were alone or with an intimate partner or friends. Unless prosecutors can show you reasonably should have known that someone would likely see you and be offended, you are not guilty under Penal Code 647(a).
You Were Not in a Public Place or a Place Open to Public View
A key element of “lewd conduct in public” is that you were somewhere the public could see you. Through the help of video surveillance, GPS records and alibi witnesses, we may be able to show that you were in a private place when the sexual activity occurred.
The Police Committed Misconduct
We often see police cross the line into entrapment when they conduct undercover sting operations.
Entrapment occurs when police use pressure, fraud, harassment, or threats to induce a “normally law-abiding citizen” to commit a crime they were not otherwise predisposed to commit. Merely initiating criminal activity, or presenting an opportunity to commit a crime, generally does not constitute entrapment.
Example: Tom enters a bathroom, and the decoy officer makes a motion like he wants to masturbate. Tom responds by dropping his pants and stroking his penis. The officer’s conduct is probably not sufficient provocation to support an entrapment defense.
However, suppose Tom ignores the decoy at first. Then the decoy persists and says to Tom: “You’re hot — let’s mess around. I’ll watch to make sure no one is coming.” This more aggressive behavior may qualify as police entrapment.
If we can establish that the police entrapped you, that almost always results in the charges being dismissed.
Sometimes prosecutors will “tag on” a charge of Penal Code 314, or more commonly known as indecent exposure.
5. Related Crimes
- Disturbing the peace – PC 415
- Indecent exposure – PC 314
- Lewd acts with a minor – PC 288
- Loitering – PC 647(d)
- Peeping Tom laws – PC 647(i) & PC 647(j)
- Statutory rape – PC 261.5
- Trespassing – PC 602
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Equal Protection at the Erotic Oasis: Examining Selective Prosecution Claims in Lewd Conduct Cases – Criminal Justice Review.
- Pryor v. Municipal Court: California’s Narrowing Definition of Solicitation for Public Lewd Conduct – Hastings Law Journal.
- California Penal Code Section 314(1): Nudeness or Lewdness – Hastings Law Journal.
- Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement – American Criminal Law Review.
- Policing the Park: Sex Panic and Policymaking in Fresno, California – Lambda Nordica.
Legal resources:
- California Penal Code 647 PC.
- Judicial Council of California Criminal Jury Instructions, CALCRIM 1161 – Lewd Conduct in Public (Pen. Code, § 647(a)).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully engaged in the touching of ((his/her) own/ [or] another person’s) (genitals[,]/ [or] buttocks[,]/ [or] female breast);
2. The defendant did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person;
3. At the time the defendant engaged in the conduct, (he/she) was in (a public place/ [or] a place open to the public [or to public view]);
4. At the time the defendant engaged in the conduct, someone else who might have been offended was present;
AND
5. The defendant knew or reasonably should have known that another person who might have been offended by (his/her) conduct was present. - Same.
- California Penal Code 19
- Our California criminal defense attorneys represent clients accused of lewd conduct offenses in Los Angeles, Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Penal Code 647 PC, endote 1, above.
- CALCRIM 1161, endnote 2, above.
- Pryor v. Municipal Court (1979) 25 Cal.3d 238. The terms “lewd” and “dissolute” in this section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct.
- Same.
- People v. Williams (1976) 59 Cal.App.3d 225. (“We do not think that any reasonable person be he juror or defendant would have any difficulty understanding, even under today’s liberal attitudes toward sex, that masturbation in a public place in plain view of anyone who may be on the premises is “lewd and dissolute.”).
- Same.
- Same.
- Pryor v. Municipal Court, endnote 8, above.
- People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. at p. 11.
- People v. Norris (Super. 1978) 88 Cal.App.3d Supp. 32.
- People v. Perez (App. 2 Dist. 1976) 64 Cal.App.3d 297.
- People v. Blatt (App. 2 Dist. 1972) 23 Cal.App.3d 148.
- Steinke v. Municipal Court for San Jose-Milpitas-Alviso Judicial Dist. (1969) 2 Cal.App.3d 569.
- See, e.g., People v. Honan (2010) 186 Cal.App.4th 175 (“Given these parameters, lewd conduct can include risqué, consensual touching that is open to public view, not because the parties specifically intended that others watch, but rather as a result of the participants’ sheer recklessness. An example of such lewd conduct is a couple engaging in a sexual encounter in a public restroom or in a parked car.”).
- Pryor v. Municipal Court, endnote 8, above.
- People v. Lake (2007) 156 Cal.App.4th Supp. 1 (holding that because a conversation between an undercover police officer and the defendant was uncertain as to the time and place of a possible sexual encounter, there was “no evidence as to whether there would likely be other people in the vicinity when the proposed conduct was to actually occur. Thus, it would be impossible for a reasonable jury to conclude without speculating that appellant knew or reasonably should have known that someone was likely to be present who could be offended by the requested conduct, particularly where, as here, appellant explicitly maintained he did not want to ‘get caught.'”).
- California Penal Code 19, endnote 4, above.
- See, for example, People v. Honan, endnote 19, above (“[Penal Code S]ection 290 requires mandatory lifetime registration for a person convicted of indecent exposure (§ 314, subd. 1), but not for a person convicted of lewd conduct (§ 647, subd. (a)).”).
- California Penal Code 314
- In Re Smith (1972) 7 Cal.3d 362, 497 P.2d 807 (“[A] person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.”).
- California Penal Code 602
- California Penal Code 415
- People v. Soto (1985) 171 Cal.App.3d 1158.
- People v. Superior Court (Caswell) (1988) 46 Cal.3d 381.
- California Penal Code 647 provides, in relevant part: “… every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: … (i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant…”
- California Penal Code 647(j).
- See California Penal Code 647(l).
- California Penal Code 261.5(a)
- See California Penal Code 261.5(b)-(d).
- See California Penal Code 261.5(e).