In general terms, public sexual indecency involves engaging in certain sexual acts in the presence of another person. But the statute in Arizona requires some very specific proofs before you can be convicted. As with other sex crimes, public sexual indecency carries not only the risk of punishment if you are found guilty, but just the allegation can have a massive negative impact on your life. If you have been charged with public sexual indecency, speak to an experienced sex crimes lawyer at Feldman | Royle. Call for a free consultation.
Public sexual indecency is defined in A.R.S. 13-1403. There are a number of elements that make up the offense. It consists of (a) intentionally or knowingly (b) engaging in any one of a number of specific sexual acts, (c) in the presence of another person, and (d) being reckless as to whether the person would be reasonably offended or alarmed by the act or acts committed. The specific acts set forth in the statute include the following:
Sexual contact. The fondling or touching, directly or indirectly, of the genitals, anus, or female breast.
Oral sexual contact. Oral contact with the genitals or anus.
Sexual intercourse. Penetration of the genitals or anus by any body part or by any object.
Bestiality. Engaging in any of the above acts with an animal.
While the name of the offense includes the word “public,” the definition makes clear that in order to commit public sexual indecency, it is not necessary that the act or acts occur in a public place; indeed, public sexual indecency could even be committed in your or someone else’s home.
This offense is generally a class 1 misdemeanor. If, however, the defendant is reckless about whether the “other person” present is under the age of 15 – known as public sexual indecency to a minor – it is a class 5 felony. As a class 1 misdemeanor, the possible penalties could include probation, up to 6 months in jail, and fines. Public sexual indecency to a minor, as a class 5 felony, includes a presumptive prison sentence, for a first time felony offender, of 1.5 years.
The law goes on, however, to deal with those who have at least 2 prior convictions for public sexual indecency to a minor or indecent exposure to a minor under 15 years of age. In that case, the penalties are significantly harsher, including a presumptive sentence of 10 years in prison.
A second or subsequent conviction for public sexual indecency to a minor (under the age of 15).
A third or subsequent conviction for public sexual indecency.
At the discretion of the court, if the conviction for public sexual indecency was sexually motivated.
Obviously, the consequences of registration as a sex offender, a designation that is available for viewing by the public, can be catastrophic.
While the phrase “public sexual indecency” sounds relatively simple, the statute defining the offense provides a number of possible defenses. Some relate to the state of mind required to be proven by the state in order to obtain a conviction. Another relates to the state of mind of the “other person” present during the alleged acts. Here are examples of some defenses to the charge:
You were unaware that anyone could observe you at the time you engaged in the particular acts involved.
You were not reckless in assuming the other person would not be offended or alarmed by the acts.
The other person was unreasonable, under the circumstances, in being offended by the acts.
The acts may have appeared sexual, but they were not any of the acts described in the statute.
Finally, there are more general defenses that may be applicable in your public sexual indecency case. These include search and seizure violations, among others.
Both public sexual indecency and indecent exposure involve exposure to another person. And both require recklessness about whether that person would be offended or alarmed. But while indecent exposure requires just that – exposure of the genitals, etc. – public sexual indecency requires specific sexual acts, such as sexual contact, sexual intercourse, and others.
Public sexual indecency and voyeurism, while both listed as sexual offenses, are entirely different in their focus, and in the actions that the two laws prohibit. Once again, public sexual indecency essentially criminalizes various sex acts in front of third persons under certain conditions. Voyeurism, on the other hand, focuses not so much on those who engage in sex acts, but on third parties who invade the privacy of others by surreptitiously viewing, recording, or distributing depictions of those acts, It is aimed, in essence, at curbing invasions of privacy.
Many sex crimes sound alike, there is overlap among some, and the penalties vary widely from one offense to the other. If you have been arrested for public sexual indecency, speak to an experienced Phoenix sex crimes lawyer at Feldman | Royle. Your initial consultation is free.
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