Although you no doubt have your own personal definition of what's lewd and what's not, you can be just as sure that your lewd behavior definition differs from your neighbor's or your cousin's, whether you live in Cupertino or Culver City. All across the state of California, though, the legal recourse for lewd acts remains consistent and written in black and white. But like many laws on the books, that legal definition leaves a little room for interpretation. In this case, whether or not lewd acts are illegal very much depends on intent and third-party witnesses.
Lewd Behavior Definition: Penal Code Section 647(a)
Under the part of the state's criminal code that deals with "other and miscellaneous offenses," California Penal Code section 647(a) is where you'll find the the Golden State's legal stance on lewd acts, also known as dissolute conduct. Though the code mentions the word lewd multiple times, it does not offer a specific, to-the-letter definition of what the word means, legally speaking. Merriam-Webster defines lewd as "obscene, vulgar, sexually unchaste or licentious," but in terms of California legal matters, we have to rely on precedent and professional opinion for insight here.
The California sex crime attorneys at Wallin & Klarich say on their website that "a lewd act is defined as any conduct that involves sexual gratification or other forms of sexual deviancy." In the eyes of the law, this often applies to sex crimes related to minors, but that's not always the case.
To paint with a broad brush, lewd conduct typically involves touching the genitals, breasts or buttocks of yourself or another person for the purpose of sexual gratification or arousal. It can also include exposing yourself, masturbating or proposing a sexual act to another person. Whether that conduct is a crime depends on a few more factors – most notably visibility, alongside the required intention.
Willful and Public Acts
It's important to keep in mind that California Penal Code Section 647(a) prohibits people from engaging in, or soliciting, lewd acts within public view. Straight from the books, the law targets anyone who "engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view." Technically speaking, sexual activity in public is not illegal; it becomes illegal when you know that someone's watching and are reasonably aware that they'll be offended by your actions.
That's a pretty key distinction, but it's not the only one. To be found guilty of engaging in lewd conduct in California, the offending act must meet a number of requirements, including:
- The act must have been willful.
- It must have been performed with the intent to arouse, gratify, annoy or offend.
- The action must have taken place in a location open to the public or within public view.
- It must have been witnessed by a person who may have been offended.
- The lewd actor must have had reasonable knowledge that the actions may have been offensive to another person.
Note that a willful act does not require the intent to break the law; it simply requires the willingness to commit the act in question. Speaking of willful, touching another person in a sexual manner without their consent may result in a lewd behavior charge (among other charges, of course, such as sexual assault). Public places where all manner of visible lewd acts, consensual or not, are prohibited include places such as parks, open sidewalks, public restrooms and entertainment venues.
Previous California court decisions have found adult movie theater booths, adult bookstores, parked cars, shared hallways, massage parlors and dressing rooms to be public places in lewd conduct cases. Although homes, businesses and hotels aren't usually considered public, sex acts performed in public view – such as at the front window with the curtains open in broad daylight – may count as lewd in a court of law.
What's Not Legally Lewd?
The state of California does not set out to punish genuinely accidental touching – such as accidentally bumping into another person or brushing up against them – as this is not considered willful conduct. Likewise, if the act lacks the intent of sexual arousal, for example, a football player slapping another athlete's butt in a public match or a couple of kids roughhousing, it is unlikely that a court will find the person guilty of lewd behavior.
There are exceptions when it comes to public places and third-party witnesses, too. Of course, it's hard to punish anyone for a lewd act in a public place with no witnesses there to be offended. Moreover, defendants won't be convicted if the third-party witness to the act was not visible or his presence was unknown to the defendant at the time. Just the possibility of being seen by someone is not enough for a conviction.
Similarly, if an undercover police officer baits someone into performing a lewd act or performs a sting operation while secretly surveying an otherwise discreet location, the court may determine that the police used entrapment, which can lead to the dismissal of charges. In a previous California case, the court decided in favor of the defendant when a decoy officer pretended to seek casual sex in a remote area of Griffith Park. The defendant was deemed not guilty of lewd conduct because he had no reason to believe that any third party would see the potential sex act or be offended by it.
Penalties for Lewd Behavior
Under California law, engaging in or soliciting lewd acts in a public place is considered a misdemeanor crime. Punishment for lewd conduct in public may include a sentence of up to 6 months in county jail, a fine of up to $1,000 or a combination of both, at the discretion of the court. Guilty parties may also receive community service or a work-related release.
Additionally, a lewd act conviction often comes with informal or summary probation of up to three years. This sentence can include fines, counseling, testing for sexually transmitted diseases and a ban from returning to the location of the crime. If the terms of the probation are violated, county jail time is a real possibility.
California law does not require those convicted of lewd public conduct to register as sex offenders, but it's fairly common to be charged with both lewd conduct and indecent exposure. Unlike lewd conduct, the crime of indecent exposure does come with lifetime sex offender registration.
California Penal Code Section 647(a) describes what makes a person guilty of lewd conduct in public, though it doesn't describe in detail the meaning of "lewd" itself.
As a freelance writer and small business owner with a decade of experience, Dan has contributed legal- and finance-oriented content to diverse sources including Chron, Fortune, Zacks.com, Motley Fool and MSN Money, among others.