What is Considered a Lewd Act in California?

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Obscenity, pornography and lewd conduct are all notoriously difficult words to define. Decades ago, U. S. Supreme Court Justice Potter Stewart famously declared that pornography may be an indefinable term, but it did not matter, he said, because "I know it when I see it." California's lewd conduct laws offer more specific descriptions. In California, two laws use the term lewd in their titles: One criminalizes lewd conduct in public, a law intended to protect members of the public from having to witness lewd behavior; the other involves lewd acts with minors.

The former is usually a misdemeanor, the lesser type of crime in California, carrying a maximum jail term of a year. The latter is a felony, with a wide range of possible state prison sentences. A conviction triggers mandatory sex offender registration.

Are Lewd Conduct Crimes Sex Crimes in California?

While there is no hard and fast definition of lewd in California law, it always implies some type of sexual conduct that makes it a sex crime. Many different acts in California can be classified as sex crimes. They include rape, one of the most serious and severely punished sex crimes, to crimes like lewd conduct at the less serious end of the spectrum. All have serious repercussions for the convict.

Being labeled as a sex offender carries social stigma and, in many cases, a conviction will trigger a lifetime sexual offender registration requirement.

What Is Penal Code Section 647(a)?

California's lewd conduct catch-all statute is Penal Code Section 647(a). It describes those guilty of the crime of disorderly conduct as including: "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."

To be charged with the crime, the person must have engaged in lewd or dissolute conduct himself or solicited another person to do so. In this context, lewd or dissolute conduct means that someone touches his own or another person's private parts, such as genitals, buttocks or breasts.

What Does Penal Code Section 647(a) Prohibit?

While many people associate the term lewd conduct with sexual activity in public, that is actually not criminal conduct in and of itself. Sexual activity is not a crime in California even if it occurs in a public place. To be guilty of lewd or dissolute conduct, the accused must know (or should have known) that someone was likely to be nearby and offended by the conduct.

A California prosecutor must prove all of these elements to get a PC 647(a) conviction:

  1. The accused willfully touched her own genitals, buttocks or breasts or touched another person's genitals, buttocks or breasts.
  2. The accused did that act intending to arouse or gratify herself sexually or else to offend or annoy someone else.
  3. The accused did the act in a public place, a place that was open to the public or a place within the view of the public.
  4. At the time the accused did the act, a person was present who might have been offended.
  5. The accused knew that the person likely to be offended by the conduct was there or reasonably should have known that. 

What Sexual Intent Is Required?

While the language of the statute specifies the action as lewd or dissolute conduct in a place within public view, it does not say anything about intent. However, California courts have read the requirement of intent into the definition of lewd. The person doing the act must touch private parts for a sexual purpose, and the prosecutor must prove this intent in order to convict.

Some arrests in California under Penal Code Section 647(a) involve sting operations where undercover police go into restrooms notorious for homosexual encounters. If someone in the public bathroom touches his own genitals to order to solicit sex, he may be arrested and charged. But the prosecutor has to establish the intent of touching for a sexual purpose. That means that if the person did the touching for another reason, he cannot be convicted.

For example, if the person spilled a sticky drink all over himself and had rushed into the restroom to wipe the liquid off his body, the fact that he was touching his private parts could not justify a PC 647(a) conviction.

What Is a Public Place for PC 647(a)?

The California statutes define "public" differently in different laws. For the purposes of Penal Code Section 647(a), the term is defined very broadly by the courts. Remember that the place the lewd conduct occurs must be either a public place, a place open to the public or a place exposed to public view.

The courts have ruled that these locations, for example, are public: a vehicle on the street, a common area in an apartment building, a massage parlor and a private movie booth at an adult bookstore. A person's home or hotel room aren't public, but they may be exposed to public view if the person inside leaves the curtains open, potentially making sexual activity there a crime.

Why Does Someone Have to Be Offended?

It may seem odd that lewd conduct can only be charged if someone was present who might have been offended. But that is in fact the primary purpose of the statute – to protect members of the pubic who are in a public space from having to witness the sexual conduct of others.

The California Supreme Court has noted that the offense is based on conduct that offends others, not conduct per se. The state doesn't have an interest in prohibiting sexual conduct if there are no persons present who may be offended. That is why the crime requires something more than the off-chance that someone is watching – it must be likely or probable that some member of the public will be within view.

What Are the Penalties for Conviction of PC 647(a)?

A person convicted of lewd conduct under Penal Code Section 647(a) is guilty of a misdemeanor offense. Misdemeanors are the lesser crimes in California, defined as offenses with a maximum jail term of one year. The maximum potential punishment for a PC 647(a) violation is six months in county jail and/or a fine of $1,000.

In reality, the person convicted of this crime in California will rarely get a jail sentence. Usually she'll be given misdemeanor probation, also called informal probation. She may be required, as part of the probation, to pay fines, undergo counseling or get an AIDS test. There is no requirement that she register as a sex offender.

What Does Penal Code Section 288 Prohibit?

California Penal Code Section 288 prohibits lewd acts with a minor under the age of 14 years old. It is a much more serious crime than PC 647(a) and is charged as a felony offense. The statute of limitations for this offense is long, and crimes committed after 2015 can be charged at any point up to the 40th birthday of the victim. That means that crimes can be charged years after an offense is alleged to have occurred.

The types of lewd acts in PC 288 are similar to those in PC 647(a), but a child must be involved. This crime is committed when a person commits any lewd or lascivious act with a child with sexual intent. In this statute, the mandatory intent is spelled out in the language of the statute.

What Are the Elements of PC 288?

Penal Code 288 provides: "Any person who willfully and lewdly commits any lewd or lascivious act, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six or eight years."

Essentially, the person committing this crime must either touch the child's body or direct the child to touch his body for sexual purposes. While most prosecutions involve the touching of private parts, that is not a required element of the crime. The key is that the touching is done to sexually gratify either the child or the adult.

It is the intent to sexually gratify that is an essential element of this crime, and no actual sexual gratification is required. The touching can be over or under the child's clothing.

Penalties for Penal Code 288 Violations

There is no set penalty for PC 288 sexual abuse. Someone convicted of this offense can be sent to jail for one to 10 years or even get a sentence of life in prison, and can incur a fine of up to $10,000. The punishment depends on the circumstances of the crime, including the ages of the victim and the perpetrator and whether force was used.

For example, if the child is under 14 and force was used, a person convicted of the offense gets five, eight or 10 years in state prison and a fine of up to $10,000. The same act, if no force was used, can bring felony probation and a fine of up to $10,000, or three, five or eight years in prison. Other penalties include:

  • If the child was harmed – there was bodily harm involved – the person convicted of a PC 288 violation can get life in prison.
  • If the child is older, 14 or 15 years old, and the perpetrator is 10 years older than the child, the crime can be charged as a felony or a misdemeanor, bringing up to three years in state prison for a felony or up to one year in county jail for a misdemeanor.
  • The same act with a child that is 16 or 17 is charged as sexual battery or statutory rape.
  • A violation of this provision can also involve an older, dependent person, and that carries a potential penalty of five, eight or 10 years in state prison and a fine of up to $10,000.

Other Consequences of Conviction of PC 288

Anyone convicted of a Penal Code Section 288 violation can suffer other consequences as well as a jail sentence and fine. No matter what the circumstances of the offense, someone convicted of PC 288 today will be required to register as a sex offender for life.

Starting in 2021, sex offender registration will be divided into three tiers based on how severe the offenses are. Tier 1 offenders must register for 10 years, tier 2 offenders for 20 years and tier 3 offenders for life.

In addition, if the offender is a member of a professional organization, she may lose her license. For example, a lawyer or a doctor may be forbidden from practicing that profession. She may also be denied permission to own a gun. If the person is not a citizen, there can be immigration consequences as well; the person may be deported or denied future entry to the U.S.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.