Indecent Exposure

 Indecent Conduct and Indecent Exposure Attorney

Indecent Exposure Attorney Thomas Gallagher explains penalties and defenses
Indecent Exposure Attorney Thomas Gallagher explains penalties and defenses

By Minneapolis Indecent Exposure Attorney Thomas Gallagher

These crimes tend to fall into two fact patterns.  But police or prosecutors can charge them under several different laws.

Indecent conduct charges tend to involve claims of police or others seeing a couple’s sexual activity.

Indecent exposure accusations tend to claim that someone saw someone displaying their genitals in a socially inappropriate context.

Prosecutors generally charge Indecent Exposure crimes under Minnesota Statutes.  Though, they can charge under local city ordinances as well.

Minnesota Statutes Section 617.23 makes “Indecent Exposure” a crime a misdemeanor.  If you’re facing charges for one of these crimes, consult Indecent Exposure Attorney Thomas Gallagher now.

Prosecutors charge people with “Indecent Conduct” crimes regularly.  And normally they file criminal charges in a written Complaint.

But police officers can tab charge a person with a misdemeanor crime, subject to later review by a prosecutor.  And we’ve seen charges with “Indecent Conduct” both ways.

Indecent conduct and indent exposure charges can cite many different laws.  For example, a Minnesota Statute, or a local city ordinance can be used.  And different sections within the Minnesota Statutes and city ordinances can be used.  A good indecent conduct attorney will help identify the laws and defenses.

Indecent exposure to a minor

But Minnesota Statutes Section 617.23 makes “Indecent Exposure” a gross misdemeanor or felony if aggravating elements are also proven, such as presence of a minor under 16, prior similar convictions, or confinement.

Criminal Sexual Conduct Fifth Degree – minor under 16

If the accusation claims “lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present,” then the charge can be Criminal Sexual Conduct in the Fifth Degree, Minnesota Statutes Section 609.3451 — a gross misdemeanor, unless enhanced to a felony by a prior similar conviction within seven years.

Though most sex crimes prosecuted as Criminal Sexual Conduct trigger predatory offender registration, Fifth Degree Criminal Sexual Conduct does not unless charged as a felony.  You should consult an Indecent Exposure Attorney about this.

Disorderly Conduct

The typical alleged fact pattern could also be charged as a misdemeanor under Minnesota’s Disorderly Conduct Statute, Section 609.72, subd. 1 (3):

“engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.” 

Facing charges under this law?  Then call Indecent Exposure Attorney Thomas Gallagher.

Common fact patterns

Indecent Conduct in a Public Place (or Private Place)

An indecent conduct attorney pays attention to the place.

Minnesota Statutes Section 617.23, subd. 1 “Indecent Exposure” creates a misdemeanor crime for a person who willfully and lewdly exposes the person’s body or their private parts, procures another to expose private parts, or engages in open or gross lewdness or lascivious behavior – in a public place or any place where others are present.

Minnesota Statutes Section 609.72, subd. 1(3) “Disorderly Conduct” creates a misdemeanor crime for a person who engages in obscene conduct tending reasonably to arouse alarm, anger or resentment in others – in a public or private place.  Prosecutors charge “indecent conduct” under this statute.  Like other “Disorderly Conduct crimes,” the reaction of other people is relevant.  That others took no offense can be a defense.

A sign that nudity is natural & healthy. Your Indecent Exposure Attorney Gallagher protects your rights.
A sign that nudity is natural & healthy. Your Indecent Exposure Attorney Gallagher protects your rights.

Our standard differs for strip clubs, art events and theaters.  What we consider lewd exposure or “lewdness or lascivious behavior” depends upon context.  For example, the First Amendment Right to Free Expression protects speech and conduct some might think “indecent.”

We have successfully defended nude sunbathers ticketed at an isolated, posted nude beach on First Amendment grounds.

And we’ve won for topless female sunbathers on Equal Protection grounds.

A good indecent conduct attorney examines the evidence of place, whether other people were present, and context.

We can find winning defenses in the statutes charged, the U.S. Constitution and Minnesota Constitution, as well as the facts of each case.

Indecent Conduct in the Presence of a Minor under 16

Minnesota Statutes Section 609.3451, subd. 1 “Criminal Sexual Conduct 5th Degree” creates a Gross Misdemeanor crime for “masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.”  This one requires “genitals.”

Minnesota Statutes Section 617.23, subd. 2 “Indecent Exposure” creates a Gross Misdemeanor crime for a person who – in the presence of a minor under the age of 16 – willfully and lewdly exposes the person’s body or their private parts, procures another to expose private parts, or engages in open or gross lewdness or lascivious behavior – in a public place or any place where others are present.

You indecent conduct attorney examines whether a child under 16 was present.  If so, we consider:

  • “was the behavior was lewd?,”
  • “were private parts visible?,” and
  • “did the accused have reason to know?”

Situational

In many situations others may not consider a person’s appearance or behavior “lewd” or “lascivious,” depending upon context.  For example, showering at a health club is not “lewd” or “lascivious.”

Nudity alone is not sexual.  Sexuality alone is not “lewd.”

Indecent Conduct – the amorous couple

First Amendment behind bars. Your Indecent Exposure Attorney protects your rights.
First Amendment behind bars. Your Indecent Exposure Attorney protects your rights.

Indecent Conduct crime allegations usually involve an amorous couple observed.

A prosecutor might charge such a case as Indecent Exposure given the right facts.  But usually they charge under more targeted laws, such as Minnesota Statutes Section 617.23, subdivision 1(3):

“engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.”

Prosecutors rarely use City Ordinances to charge crimes.  But sometimes they use them to charge either an amorous couple, or someone police suspect of prostitution.

Discriminatory enforcement:  Police tend to enforce these crimes as “neighborhood livability crimes” or under “broken windows policing” policies.  Prosecutors enforce them disproportionately against impact low-income and minority-culture people.  An example is Minneapolis Ordinance 385.160. – Indecent conduct.

Public Urination

We have seen Public Urination cases charged as indecent exposure.  And it may be possible to prove a person urinated in public, without indecent exposure.

No Minnesota Statute criminalizes public urination.

Though, as an example, Minneapolis Ordinance  227.180 makes it a misdemeanor.  Facing public urination charges?  Then it’s time for a strong defense.  Call Indecent Exposure Attorney Thomas Gallagher.

Nude Beaches

Agnès Sorel, known to appear topless in the French court, was the model for Virgin and Child Surrounded by Angels, by Jean Fouquet (c. 1450)
Agnès Sorel, known to appear topless in the French court, was the model for Virgin & Child Surrounded by Angels, by Jean Fouquet (c. 1450)

What could be more natural than bathing or swimming nude?  Swimming and sunbathing nude is as American as apple pie.  How could that possibly be a crime?

Nudity is not indecent.

With consent of others there is no crime of exposure.  Are people showing at the gym criminals?

We’ve represented women targeted at twin cities nude beaches by male law enforcement officers.  This, even though males at the beach outnumbered females 8 to 1.

Constitutional law may provide defenses to enforcement of such laws at nude beaches.

Most nude beaches either have warnings posted or are in remote areas. They are difficult to find unless looking.  This makes indecent exposure claims weak.

Consent is a defense.

Nude beaches involve First Amendment issues as well as privacy rights and jury nullification potential.  Nude beach charge?  Call Indecent Exposure Attorney Thomas Gallagher.

Female Breasts

Laws criminalizing the exposure of female breasts violate the Constitution’s mandate of equal protection under the laws.  After all, men expose their breasts or nipples.

So it’s unconstitutional to make being female an element of a crime.  And yet many of our laws in Minnesota even today, pretend to do just that.

City Ordinances

An experienced indecent conduct attorney sees prosecutions under City Ordinances.

Psyche revived by the kiss of love.
Psyche revived by the kiss of love.

Minneapolis Ordinance Section 385.160, “Indecent conduct” creates a misdemeanor crime:

“No person, in any public place shall engage in, or offer or attempt to engage in:
(a)   Lewd or lascivious conduct;
(b)   Sexual intercourse or other sexual conduct;
(c)   The indecent or lascivious exposure or use of the human body, or any part thereof; or
(d)   Fondling the unclothed genitals of himself or herself or another person.”

City ordinances vary, but there are similar ordinances in many cities.  And compared to state statutes, city ordinances are more often unconstitutionally broad.

Police have tab charged this against a couple making out in a car in a neighborhood targeted for intolerant policing.  This often results in racially disparate-impacts.

And police have also used these type of ordinances to harass people they suspect of prostitution, but lack evidence for a prostitution charge.

Your indecent conduct attorney can explain the difference between a city ordinance vs. a state statute charge.

Cities have targeted strip clubs and strippers with “Indecent Conduct” types of criminal charges.  But the First Amendment protects theatrical performances.

Gay Targeting and Police Stings sometimes result in these kinds of criminal charges.  The 2007 high-profile case of U.S. Senator Larry Craig appears a case in point.  Police had set up a “sting” in a men’s restroom at MSP airport to catch men engaging in homosexual activity.  Police have set up stings in adult bookstores over the years, as well.

“Indecent Exposure Attorney, How can you defend people accused of these crimes?”

Gallagher Defense logo grGallagher wants to help people facing a difficult situation.  False accusation or not, the charge alone causes suffering.  Part of the reason is our social stigma still surrounding human sexuality.  These issues are not new, as we discuss in our article: Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery.

Keeping your record clean is the goal most have.

Have a question about a case?  Be sure to give Indecent Conduct Attorney Thomas C. Gallagher a call about it.

Question?  You can call Minneapolis Indecent Conduct Attorney Thomas Gallagher at 612 333-1500