Tad Nelson & Associates: Public Lewdness Defense – Houston, Texas
Is Having Sex in Public a Crime in Texas?
Although public displays of affection are an everyday occurrence, actually performing certain sexual acts in the presence of others can be prosecuted as a criminal offense in the Houston area. Having sex in public is a misdemeanor offense known as “public lewdness.” And under Section 21.07 of the Texas Penal Code, public lewdness includes not just sexual intercourse, but also “deviate sexual intercourse” (oral sex) and any “act of sexual contact.”
How “Public” is Public?
Section 1.07 of the Penal Code defines a public place as anywhere “to which the public or a substantial group of the public has access.” This can include the public area of an otherwise public building, such as an apartment complex or office building. So for instance, if you are having sex in a car that is in a public a parking lot, that is public lewdness. The fact that you are inside the car does not matter.
Similarly, if you are at a social gathering at a private residence and a third party witnesses sexual conduct that “offends” or “alarms” them, you can be charged with public lewdness even if you did not intend to be seen. The standard under Section 21.07 is whether your actions were “reckless.” All a prosecutor needs to prove is that you knowingly had sex in a place where there was a “substantial or unjustifiable” risk of discovery.
Public Lewdness & Bestiality
The current public lewdness law also applies to acts “involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.” This is commonly known as bestiality. The Texas legislature recently approved a bill to create a new bestiality offense separate and apart from public lewdness. These changes take effect on September 1, 2017.
What About Sexual Contact Through Clothing?
As noted above, public lewdness includes “sexual contact” that falls short of intercourse. Indeed, this may include contact through a person’s clothing. Consider this 2014 case from Austin. A woman was having drinks with some friends at a local bar. The defendant walked up and started talking to her.
After the conversation ended, the woman turned her back and went back to her group of friends. At this point, while her back was still turned, she said the defendant reached “between her legs” and “touched her vagina” through her clothing. Other witnesses confirmed they saw the defendant’s fingers “between” the woman’s legs.
The defendant argued that his conduct, if it did occur, was not public lewdness because it only involved touching through clothing. The jury disagreed and found him guilty. A Texas appeals court upheld the conviction, stating that it would lead to “absurd results” to exclude all touching through clothing from the legal definition of sexual contact.
As the Texas Court of Criminal Appeals noted in 1978 case dealing with the same issue, “the essence of the act of touching is to perceive by the sense of feeling.” To accept the premise that it is not public lewdness simply because there was a “layer of fabric” between the defendant’s hand and the other person’s genitals would mean that “a defendant who thrust his hand beneath a victim’s undergarments and fondled his or her genitals in a public place could not be prosecuted for public lewdness if he were wearing a glove.”
What Are the Penalties for Public Lewdness?
Public lewdness of any kind is a Class A misdemeanor. This means if convicted, the court may sentence the defendant to up to one year in jail and a fine of no more than $4,000. But in many cases, the judge will order community supervision (probation) instead. For example, in the 2014 case discussed above, the judge gave the defendant a suspended prison sentence of 120 days with 17 months of community supervision.
In addition to a fine and possible jail time, a public lewdness conviction may also require the defendant to register with the Texas Public Sex Offender Registry.
Get Help From a Texas Sex Crimes Defense Attorney
As you can see, public lewdness is not a joking matter. It may not be a felony, but you can still face several months in jail and years as a registered sex offender if convicted. You need to treat a public lewdness charge as serious as any other type of sex crime.
The first thing that you need to do is speak with an experienced Houston criminal defense attorney. At the Law Offices of Tad Nelson & Associates, we can review your case, advise you of your rights, and defend you in court if necessary. Call us at (281) 280-0100 to schedule a consultation in our Houston, Galveston, or League City offices today.
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