Can You Get Arrested for a Public Display of Affection?

A party can get arrested and fined for a public display of affection. Such an act is usually called by other names. In New York, the term is public lewdness; in South Carolina, lewdness; in Nevada, indecent or obscene exposure; and in California, indecent exposure or obscene exhibitions. The level of seriousness and penalty for the offense varies by state.

The definition of the offense differs by state. In California, a party who willfully and lewdly exposes his person or his private parts in a public place or any place where other people are present and might be offended or annoyed engages in indecent exposure. A party also engages in indecent exposure when he counsels or assists another person to expose himself.

In New York, a party commits public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act in a public place. He also engages in indecent exposure when he exposes his private or intimate parts or the parts of another person when on private premises from which he might be observed from a public place or other private premises, with the intent that he be observed. In addition, he engages in indecent exposure when he trespasses in a dwelling under circumstances in which he is observed by a lawful occupant.

When two or more people are engaged in a sexual act, one or more of the parties can be charged with indecent exposure. A prosecutor determines whether to charge a party based on the party’s behavior and level of exposure. A prosecutor has the option of prosecuting one party engaged in the act but not the other.

Indecent exposure is usually charged as a misdemeanor. A state can increase the penalty if a party has been previously convicted of the offense. Whether a prosecutor chooses to increase the penalty varies according to the facts of the case and the party’s criminal record. In California, upon the second and each subsequent conviction for indecent exposure, the convicted party will be found guilty of a felony.

To avoid an indecent exposure charge, a party should refrain from engaging in sexual acts with another person or acts that expose parts of her or her partner’s body in public. The party should review the statute regarding indecent exposure in the state in which she may commit the act. Some cities also have codes that prohibit nudity.

City and county municipal ordinances regarding indecent exposure are usually distinct from state laws. For example, San Francisco has an ordinance prohibiting public nudity. The city ordinance does not require intent. The first offense under the ordinance carries a $100 fine, while the third violation may be charged as a misdemeanor punishable by up to a $500 fine and a year in jail.

San Francisco makes exemptions for participants at permitted street fairs and parades, including its annual gay pride parade.

A state or municipality typically prosecutes indecent exposure to limit activities it views as associated with other concerns, including prostitution, trespassing and drug use. In some areas, a county with a unique ordinance relating to indecent exposure will word the ordinance to allow entertainers room to perform. For example, Nevada law prevents public nudity, but Clark County, which contains the city of Las Vegas, has an ordinance that defines topless as fully exposing the female breast and areola. This means that entertainers along the Strip can skirt the rule by wearing pasties.