Tad Nelson & Associates: Sexual Assault Defense — Houston, Texas
The Consequences of an Indecent Exposure Conviction in Texas
“Indecent exposure” sounds like an outdated term, but it is still a very real part of the Texas Penal Code. Public nudity remains something of a cultural taboo in the United States. Combined with Texas’ strict laws prohibiting sex crimes, a person may easily find themselves convicted of indecent exposure, sentenced to jail, and forced to register as a sex offender.
How the Law Actually Defines Indecent Exposure
Public nudity, in and of itself, is not always illegal. Section 21.08 of the Texas Penal Code contains a very specific definition of indecent exposure. To secure a conviction, the prosecution must prove all of the following elements beyond a reasonable doubt:
- The defendant exposed his or her anus or “any part” of their genitals;
- The defendant acted “with intent to arouse or gratify the sexual desire of any person”; and
- The defendant was “reckless” about the presence of another person “who will be offended or alarmed” by the defendant’s actions.
Perhaps the most common example of indecent exposure is “flashing.” But prosecutors and police often charge indecent exposure when they catch individuals in non-sexual acts of nudity, such as mooning, topless sunbathing by women, and of course, public urination. (These acts may also be charged as a violation of city and local ordinances.)
Indecent exposure is a Class B misdemeanor under the Penal Code. This means that if convicted, a defendant faces a maximum possible jail term of 180 days and a fine of no more than $2,000. But if a person is convicted of indecent exposure for the second time, he or she must also register as a convicted sex offender for a period of 10 years.
Indecency With a Child
There are other criminal offenses in Texas that relate to indecent exposure but carry harsher penalties. For instance, a person may be convicted of “indecency with a child” under the following circumstances:
- The defendant is with a “child younger than 17 years of age”;
- The defendant exposes his or her anus or genitals “knowing the child is present”; and
- The defendant acted “ with intent to arouse or gratify the sexual desire of any person.”
Unlike misdemeanor indecent exposure, indecency with a child is a third-degree felony. Instead of facing six months in jail, a defendant may receive a prison sentence of between 2 and 10 years, in addition to a fine of up to $10,000.
One thing to keep in mind is that “exposure” can be interpreted quite broadly by Texas courts, especially in cases alleging indecency with a child. Here is an example from a recent case from Texarkana. The defendant in this case was a 31-year-old man living with a mother and her two teenage children.
One morning the brother, who was 16 years old at the time, found his 15-year-old sister lying on the roof of the apartment building “covered by a blanket.” The brother surmised there was someone else under the blanket. He proceeded to “scream at [his sister] and asked her what she was doing.”
At this point, the brother realized his sister was having sex with the defendant. The brother removed the blanket covering the couple, whereupon he saw the defendant “on his back with his pants down, with his erect penis exposed.”
The jury found the defendant guilty of indecency with a child, and the court sentenced him to eight years in prison. On appeal, the defendant argued that he did not “expose” himself as he had covered himself with a blanket. The exposure only occurred when the brother removed said blanket.
The Texas Sixth District Court of Appeals rejected this defense and affirmed the conviction. The appeals court noted the term “expose” is not expressly defined in the Penal Code, and “the common meaning generally in use” is not “limited to the meaning ‘exposed to sight.’” What is critical in these cases is the “defendant’s actions and mental state, not the other person’s comprehension.” In other words, it is irrelevant if the child actually sees the defendant’s genitals. The defendant’s intent to expose is what really matters.
When Indecent Exposure Stems From Innocent Mistakes
Unlike the lewd and inappropriate actions people typically think of when they hear the term “sex crime,” indecent exposure is often a crime committed by the innocent. Many individuals charged with this crime were merely in the wrong place at the wrong time. Maybe they were engaging in a prank outside of a friend’s home, or they decided to go skinny dipping on a public beach at midnight. These individuals had no intention of offending others or of inflicting harm; rather, they just made poor choices at the wrong times.
Intentional or not, the Texas courts take indecent exposure very seriously and are not hesitant to dole out hefty fines and jail time even to first time offenders. If you have been charged with indecent exposure in Texas, an aggressive Houston indecent exposure attorney can help you fight the charges and regain control of your future.
Consequences of Indecent Exposure
Whether your actions were intentional or not, if you are found guilty of indecent exposure, you face jail time, fines, probation, and more. According to Texas Penal Code, Section 21.08, indecent exposure is a Class B misdemeanor, which carries a jail sentence of up to 180 days and a maximum fine of $2,000. However, indecent exposure in front of a child, on a playground, or near a school is a felony of the second degree, which carries a punishment of up to 20 years in prison but not less than two years, and a fine of up to $10,000 (21.11). In either instance, you would be required to register as a sex offender upon your release from jail or prison.
Neither outcome is good, and in either situation, you stand to lose a good portion of your life, a substantial amount of money, and the respect of your community. For these reasons, you should not face a judge and jury on your own. An experienced sex crimes lawyer can help you build a defense and fight for your freedom.
Defenses for Indecent Exposure
Fortunately, there are viable defenses to indecent exposure. In order for a prosecutor to get a conviction, he or she must prove that your act was intentional. If he or she cannot do that, then they may try to reduce your knowing to recklessness, meaning that you did not care if another individual might be present at the time of and offended by the incident. This is referred to as men’s rea. Our attorneys at the Law Offices of Tad Nelson & Associates would strive to go beyond men’s rea and have the charges dismissed entirely. Some ways in which we would try to do that include:
- Showing lack of intent;
- Proving mental disability or illness;
- Proving intoxication;
- Showing that you were too young to know better; or
- Showing that breastfeeding is not a crime.
Though some of these defenses may not serve to dismiss your charges entirely, one could help to reduce them.
Have You Been Charged With a Sex Crime?
It should be noted that other Texas appeals courts have said exposure does require a “visible sighting.” So the law remains somewhat unsettled in this area. This underscores the importance of taking any kind of indecent exposure charge seriously, since different judges may read the law slightly differently.
An experienced Texas criminal defense attorney can assist you with any kind of sex crimes charge. Contact the offices of Tad Nelson & Associates today in Houston, Galveston, or League City if you need help right away. Call our firm today at (281) 280-0100 to arrange your consultation.
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