It is not a crime for couples or lovers to publicly display affection. However, when they become reckless and their actions become sexual and make onlookers uncomfortable, it amounts to public lewdness. Texas imposes Class A misdemeanor penalties on individuals or groups that participate in sexual intercourse, an act of deviate sexual intercourse, or engage in sexual contact that is alarming or offensive to the public. Even when the conduct happens in private but is done recklessly and makes another person present uncomfortable, it amounts to a sexual offense.

You can face charges because of conduct that is misconstrued as sexual and offensive to the public. Whatever the circumstances leading to the arrest for the offense, you should understand the laws highlighting the alleged sexual offense, penalties upon conviction, and related crimes that the prosecutor could charge in place of or alongside the public lewdness.

Public Lewdness Legal Definition

According to Texas PEN §21.07, an individual engages in public lewdness when they willfully engage in an act of sexual deviancy, sexual intercourse, or sexual contact in public or in private if they are reckless on whether someone else could see and be upset or scared by the behavior. Lewdness refers to touching private parts, buttocks, or female breasts for arousal, sexual gratification, or annoyance.

Usually, the offense involves consenting adults who engage in sexual conduct in the presence of parties that could be offended. Under the section, the offense is a Class A misdemeanor. However, you can face a third-degree felony charge for the same violation after the 2023 amendments if you are civilly committed as a sexually violent predator under Chapter 841 of the Health and Safety Code.

Before the 2023 amendment, PEN §21.07 underwent another change in 2017. The amendment added section 21.09, reclassifying some of the conduct prescribed in PEN 21.07 under bestiality crimes.

If you reside in Texas or are visiting, you must understand the nuisances of the newest version of PEN §21.07. Doing so will keep you from legal trouble or help you know what is at stake when you face charges for violating the section.

Below are some of the terms or phrases used in public lewdness definition to help you better understand the crime.

Public Place

For purposes of PEN §21.07, a public setting is any location accessible to the public or large groups of people, including but not limited to highways, office buildings, hospitals, private apartments, schools, streets, or transport facilities.

An apartment could be considered private property because it could be fenced and gated. However, common areas like the parking lot could be regarded as public, as they are accessible by residents living in the apartment. If you are engaging in sexual conduct inside a car, which is private property, you will still be deemed to be in a public location because the parking lot is a common area.

Public Lewdness in Private

You will face charges for a PEN §21.07 violation even when the sexual behavior happens in private. Consensual sex among adults in private is lawful. However, the Penal Code still specifies that you can face charges even in private in the presence of a third party that could feel offended or act recklessly during the act, making another party uncomfortable. For instance, when two consenting adults who are also coworkers are engaging in penetrative sex in an office back room, and a third individual walks in on them, the two parties engaging in the sexual conduct will face public lewdness counts. The reason is that they acted recklessly when they chose to engage in sexual intercourse in an inventory where anyone could walk in on them at any time.

The Texas Penal Code defines recklessness as disregarding a considerable and regrettable risk that a particular outcome could happen. It is to ignore obvious risks that something will happen. Using the example of two colleagues engaging in sexual intercourse in the office, it was an unjustifiable or regrettable risk to engage in penetrative sex in the back room of an office on a workday, as it is likely someone will enter the room.

Sexual Conduct

Public lewdness consists of various sexual conducts. Sexual conduct is a concept referring to various conducts like sexual deviancy, sexual intercourse, or sexual contact.

Deviate sexual intercourse or sexual deviancy refers to any physical contact of someone else’s genitals with another party’s mouth or anus. Also, the conduct could entail penetration of a person’s anus with an object or genital. Conduct that amounts to sexual deviancy. It differs from penetrative sex or sexual intercourse, which refers to physical contact between the genitals of parties of the opposite gender.

Lastly, sexual contact refers to the physical touching of a person’s breasts, anus, or private parts for sexual satisfaction or arousal of any party.

When the prosecutor is proving their case, they must show you engaged in any of these sexual behaviors in public or in private but in a reckless fashion that alarmed or increased the risk of offending others.

The Requirement to Alarm A Third Party

Texas does not inherently criminalize sexual conduct among consenting adults in public. It only prohibits the conduct if you are aware or ought to know of a third party’s presence that could be likely alarmed or made uncomfortable by the conduct. The prosecutor must prove there was more than a mere risk that someone could see you. There must be an actual risk that another party will see you. This means that some of the people arrested for public lewdness are factually innocent, as when they engaged in the behavior, they reasonably believed no one could see them or that nobody viewing their conduct could be alarmed.

Public Lewdness Charges and Legal Penalties

You will face allegations of a PEN §21.07 violation when you engage in the highlighted sexual acts in public or in private when you disregard the possibility of another party seeing you and being offended by the conduct. The prosecutor can file Class A misdemeanor charges if the allegations can be substantiated. The statute of limitations for the misdemeanor charges is 24 months. If the period lapses without the charges, the court will not admit the filing of charges unless under exceptional circumstances.

Even though a PEN §21.07 violation is usually a misdemeanor, after September 2023, you could face third-degree felony charges if the prosecutor can demonstrate you are a civilly committed violent sexual offender under the Health and Safety Code (HS) 841.

When convicted of misdemeanor public lewdness, the legal penalties you will face are:

  • Monetary court fines of no more than $4,000
  • At most twelve months of jail incarceration
  • Both court fines and jail incarceration

Additionally, the criminal justice system grants the triers of fact the discretion to impose probation in PEN §21.07 violation cases or accept requests for deferred sentencing or adjudication. Nevertheless, regardless of your offense, judges or the jury cannot suggest community supervision, otherwise called probation, for a suspended or deferred adjudication that exceeds 120 months. Other instances when the trier of facts will deny the probation after a guilty verdict is issued against you include:

  • You utilized, exhibited, or displayed a lethal weapon when committing the felony in question or when immediately fleeing the crime scene
  • You utilized or displayed a lethal weapon in person or were a coconspirator to the violation and were aware the deadly firearm would be shown or used.

A guilty verdict for violation will result in a criminal record that will hurt various aspects of your life. Potential employers could discriminate against you when hiring based on the record, denying you opportunities for which you are otherwise qualified. Professional licensing agencies could also reject your license application or renewal based on the public lewdness record. Besides, with your history of lewdness, property managers or landlords will be reluctant to lease their properties to you, denying you the chance to live in the housing you prefer.

Can you be required to enlist as a sexual offender after a public lewdness conviction? No. The offense is not in the prescribed offenses listed under Chapter 62 of the Texas Criminal Procedures Code. Even if a sentence does not come with an obligation to enlist as a sexual predator, you must take your charges seriously by hiring a defense attorney early in the case to help prepare solid legal defenses.

Public lewdness is considered highly perverse and a charge alone, even when you are falsely accused or innocent. Allegations attract a lot of scrutiny and embarrassment in your life. Your employer could also dismiss you before you are proven guilty to preserve their image. Also, you could lose child custody or visitation rights due to the damaged reputation. Therefore, the social stigma should be a crucial reason why you should enlist the services of a competent sex crimes attorney to contest the charges and represent you in court for a fair outcome.

Sting Operations

Most people are arrested for lewd conduct in public during sting operations by undercover officers or during police surveillance of discreet public locations. The acts happen in isolated places where the participants reasonably believe no one could see them and be offended. The familiar places where these operations happen include:

  • Alleys
  • Park and beach bathrooms
  • Shopping malls
  • Adult book outlets
  • Public parks
  • Gymnasiums

Most of these stings or surveillances are done after police receive complaints from the public about public lewdness in particular areas.

Contesting Public Lewdness Charges

When you face a PEN §21.07 violation charge, the best decision you can make is to enlist an experienced sex crimes defense early in the case. The attorney will conduct an independent investigation into the case’s facts. Additionally, they will review the police report to understand the circumstances surrounding the arrest, the availability of witnesses and their reliability, and the physical evidence the prosecutor has against you. The pretrial hearing allows the prosecutor and your defense attorney to discuss the case. Your attorney reviews the evidence and attempts to convince the prosecutor to dismiss the case or offer a favorable plea deal, depending on the strength or weakness of the evidence against you.

However, when the prosecutor refuses to budge, or the discussions collapse, the case proceeds to the trial. In this stage, your attorney will present the following legal defenses for a fair verdict:

  1. Your Actions Do Not Qualify as Lewd Behavior in Public

Your attorney will evaluate the circumstances surrounding the arrest to cast reasonable doubt on whether your actions amount to lewdness or sexual conduct. Prosecutors blow the charges out of proportion sometimes, leading to overcharges. If you have been overcharged, your attorney should find evidence to put reasonable doubt about you committing the alleged crime. The attorney can use video footage or witness testimony to show that the act you were engaging in leading to arrest does not amount to public lewdness.

  1. Your Conduct was Not Intended for Sexual Arousal or Satisfaction

The prosecutor must show the aim of engaging in the sexual conduct was to obtain sexual arousal, satisfaction, or to be seen. However, proving the element is usually challenging because the DA cannot access your mind to show your motive or plans when the alleged violation happened. This creates room for your attorney to argue that you reasonably believed no one would see you and that you were not touching yourself or another party for gratification. For instance, the attorney can say you were touching or rubbing your genitals because they were itching. Also, you could claim that you were only sunbathing naked on private property because you reasonably believed no one was around to see you naked. Unless the DA can show you ought to have known someone was present to be offended by the act, the judge will dismiss your case.

If the prosecutor cannot prove sexual intent beyond a reasonable doubt, the court will dismiss your charges.

  1. Police Entrapment

Arrests for public lewdness typically happen after a public complaint, which results in a sting operation. Therefore, when undercover police induce you to engage in sexual conduct leading to an arrest, your attorney can raise the entrapment defense. However, they must show you could not have otherwise engaged in the lewd conduct in public if the police did not induce or push you into doing so.

The police commissioning the offense or presenting you with the opportunity to violate the law is not entrapment. You should demonstrate that the authorities used pressure, threats, or fraud to push you, a law-abiding citizen, to commit an offense.

  1. Mistaken Identity

Another defense is arguing that you were mistakenly identified as the perpetrator. Still, you could not have committed the crime because you have an alibi that places you in a different location when the offense happened. You can be arrested for resembling the physical description of the perpetrator. Therefore, you must present evidence that places you in a different location, like video footage or an alibi. That way, you will show the court you could not have committed the crime, making you innocent.

  1. The Police Violated Your Rights

Even when you commit a crime, the police should not breach your constitutional rights during investigations or arrest, because it renders the arrest illegal, and any subsequent evidence cannot be used in court. Therefore, if you can identify instances where your rights were contravened, the prosecutor will be willing to offer a fair plea deal or drop the case. Your rights include:

  • The right to preserve your freedom during interrogations by staying silent until your legal representative is present
  • You are entitled to legal counsel or representation
  • You are entitled to protection against illegal searches under the Fourth Amendment

You should speak to your attorney to discuss your rights and identify instances during investigations or arrests when authorities violated your rights. These will help in crafting solid defenses.

Public lewdness charges are not always clear. The court interprets the case depending on the factors surrounding the case. Therefore, talk to an experienced criminal attorney to understand your case and identify the best defenses to increase the possibility of a fair verdict in trial.

The Importance of a Defense Attorney In the Case

You should contact your defense attorney immediately when you learn of an investigation or impending arrest for public lewdness. A proficient attorney understands the statutes that apply in your case, the criminal court system, and the everyday challenges you are likely to face, thus streamlining the process.

The criminal penalties and collateral consequences of a conviction for a sex offense, including public lewdness, can be devastating. Thankfully, an attorney can help prevent or reduce the effects of these consequences through proper legal representation. The crucial roles of an attorney in your case are:

  • Offering legal counsel and guidance
  • Poking holes in the evidence the prosecutor has against you
  • Negotiating with the prosecutor for charge dismissal, reduction, or a fair plea deal
  • Representing and defending you in court
  • Present mitigating factors for a lenient sentence
  • File an appeal if the court’s verdict is unfair

Find a Competent Sex Crimes Defense Attorney Near Me

When you face charges for public lewdness, it is crucial to understand PEN §21.07, possible penalties, and the best defenses to prevent a guilty verdict. The best person to help you in this difficult time is an experienced criminal attorney. At Andrew Deegan Criminal Lawyer At Law, we understand Texas and the criminal justice systems, making us suitable to defend against your charges. Call us at 817-689-7002">817-689-7002 for a no-obligation case discussion in Fort Worth, TX.

It is not a crime for couples or lovers to publicly display affection. However, when they become reckless and their actions become sexual and make onlookers uncomfortable, it amounts to public lewdness. Texas imposes Class A misdemeanor penalties on individuals or groups that participate in sexual intercourse, an act of deviate sexual intercourse, or engage in sexual contact that is alarming or offensive to the public. Even when the conduct happens in private but is done recklessly and makes another person present uncomfortable, it amounts to a sexual offense.

You can face charges because of conduct that is misconstrued as sexual and offensive to the public. Whatever the circumstances leading to the arrest for the offense, you should understand the laws highlighting the alleged sexual offense, penalties upon conviction, and related crimes that the prosecutor could charge in place of or alongside the public lewdness.

Public Lewdness Legal Definition

According to Texas PEN §21.07, an individual engages in public lewdness when they willfully engage in an act of sexual deviancy, sexual intercourse, or sexual contact in public or in private if they are reckless on whether someone else could see and be upset or scared by the behavior. Lewdness refers to touching private parts, buttocks, or female breasts for arousal, sexual gratification, or annoyance.

Usually, the offense involves consenting adults who engage in sexual conduct in the presence of parties that could be offended. Under the section, the offense is a Class A misdemeanor. However, you can face a third-degree felony charge for the same violation after the 2023 amendments if you are civilly committed as a sexually violent predator under Chapter 841 of the Health and Safety Code.

Before the 2023 amendment, PEN §21.07 underwent another change in 2017. The amendment added section 21.09, reclassifying some of the conduct prescribed in PEN 21.07 under bestiality crimes.

If you reside in Texas or are visiting, you must understand the nuisances of the newest version of PEN §21.07. Doing so will keep you from legal trouble or help you know what is at stake when you face charges for violating the section.

Below are some of the terms or phrases used in public lewdness definition to help you better understand the crime.

Public Place

For purposes of PEN §21.07, a public setting is any location accessible to the public or large groups of people, including but not limited to highways, office buildings, hospitals, private apartments, schools, streets, or transport facilities.

An apartment could be considered private property because it could be fenced and gated. However, common areas like the parking lot could be regarded as public, as they are accessible by residents living in the apartment. If you are engaging in sexual conduct inside a car, which is private property, you will still be deemed to be in a public location because the parking lot is a common area.

Public Lewdness in Private

You will face charges for a PEN §21.07 violation even when the sexual behavior happens in private. Consensual sex among adults in private is lawful. However, the Penal Code still specifies that you can face charges even in private in the presence of a third party that could feel offended or act recklessly during the act, making another party uncomfortable. For instance, when two consenting adults who are also coworkers are engaging in penetrative sex in an office back room, and a third individual walks in on them, the two parties engaging in the sexual conduct will face public lewdness counts. The reason is that they acted recklessly when they chose to engage in sexual intercourse in an inventory where anyone could walk in on them at any time.

The Texas Penal Code defines recklessness as disregarding a considerable and regrettable risk that a particular outcome could happen. It is to ignore obvious risks that something will happen. Using the example of two colleagues engaging in sexual intercourse in the office, it was an unjustifiable or regrettable risk to engage in penetrative sex in the back room of an office on a workday, as it is likely someone will enter the room.

Sexual Conduct

Public lewdness consists of various sexual conducts. Sexual conduct is a concept referring to various conducts like sexual deviancy, sexual intercourse, or sexual contact.

Deviate sexual intercourse or sexual deviancy refers to any physical contact of someone else’s genitals with another party’s mouth or anus. Also, the conduct could entail penetration of a person’s anus with an object or genital. Conduct that amounts to sexual deviancy. It differs from penetrative sex or sexual intercourse, which refers to physical contact between the genitals of parties of the opposite gender.

Lastly, sexual contact refers to the physical touching of a person’s breasts, anus, or private parts for sexual satisfaction or arousal of any party.

When the prosecutor is proving their case, they must show you engaged in any of these sexual behaviors in public or in private but in a reckless fashion that alarmed or increased the risk of offending others.

The Requirement to Alarm A Third Party

Texas does not inherently criminalize sexual conduct among consenting adults in public. It only prohibits the conduct if you are aware or ought to know of a third party’s presence that could be likely alarmed or made uncomfortable by the conduct. The prosecutor must prove there was more than a mere risk that someone could see you. There must be an actual risk that another party will see you. This means that some of the people arrested for public lewdness are factually innocent, as when they engaged in the behavior, they reasonably believed no one could see them or that nobody viewing their conduct could be alarmed.

Public Lewdness Charges and Legal Penalties

You will face allegations of a PEN §21.07 violation when you engage in the highlighted sexual acts in public or in private when you disregard the possibility of another party seeing you and being offended by the conduct. The prosecutor can file Class A misdemeanor charges if the allegations can be substantiated. The statute of limitations for the misdemeanor charges is 24 months. If the period lapses without the charges, the court will not admit the filing of charges unless under exceptional circumstances.

Even though a PEN §21.07 violation is usually a misdemeanor, after September 2023, you could face third-degree felony charges if the prosecutor can demonstrate you are a civilly committed violent sexual offender under the Health and Safety Code (HS) 841.

When convicted of misdemeanor public lewdness, the legal penalties you will face are:

  • Monetary court fines of no more than $4,000
  • At most twelve months of jail incarceration
  • Both court fines and jail incarceration

Additionally, the criminal justice system grants the triers of fact the discretion to impose probation in PEN §21.07 violation cases or accept requests for deferred sentencing or adjudication. Nevertheless, regardless of your offense, judges or the jury cannot suggest community supervision, otherwise called probation, for a suspended or deferred adjudication that exceeds 120 months. Other instances when the trier of facts will deny the probation after a guilty verdict is issued against you include:

  • You utilized, exhibited, or displayed a lethal weapon when committing the felony in question or when immediately fleeing the crime scene
  • You utilized or displayed a lethal weapon in person or were a coconspirator to the violation and were aware the deadly firearm would be shown or used.

A guilty verdict for violation will result in a criminal record that will hurt various aspects of your life. Potential employers could discriminate against you when hiring based on the record, denying you opportunities for which you are otherwise qualified. Professional licensing agencies could also reject your license application or renewal based on the public lewdness record. Besides, with your history of lewdness, property managers or landlords will be reluctant to lease their properties to you, denying you the chance to live in the housing you prefer.

Can you be required to enlist as a sexual offender after a public lewdness conviction? No. The offense is not in the prescribed offenses listed under Chapter 62 of the Texas Criminal Procedures Code. Even if a sentence does not come with an obligation to enlist as a sexual predator, you must take your charges seriously by hiring a defense attorney early in the case to help prepare solid legal defenses.

Public lewdness is considered highly perverse and a charge alone, even when you are falsely accused or innocent. Allegations attract a lot of scrutiny and embarrassment in your life. Your employer could also dismiss you before you are proven guilty to preserve their image. Also, you could lose child custody or visitation rights due to the damaged reputation. Therefore, the social stigma should be a crucial reason why you should enlist the services of a competent sex crimes attorney to contest the charges and represent you in court for a fair outcome.

Sting Operations

Most people are arrested for lewd conduct in public during sting operations by undercover officers or during police surveillance of discreet public locations. The acts happen in isolated places where the participants reasonably believe no one could see them and be offended. The familiar places where these operations happen include:

  • Alleys
  • Park and beach bathrooms
  • Shopping malls
  • Adult book outlets
  • Public parks
  • Gymnasiums

Most of these stings or surveillances are done after police receive complaints from the public about public lewdness in particular areas.

Contesting Public Lewdness Charges

When you face a PEN §21.07 violation charge, the best decision you can make is to enlist an experienced sex crimes defense early in the case. The attorney will conduct an independent investigation into the case’s facts. Additionally, they will review the police report to understand the circumstances surrounding the arrest, the availability of witnesses and their reliability, and the physical evidence the prosecutor has against you. The pretrial hearing allows the prosecutor and your defense attorney to discuss the case. Your attorney reviews the evidence and attempts to convince the prosecutor to dismiss the case or offer a favorable plea deal, depending on the strength or weakness of the evidence against you.

However, when the prosecutor refuses to budge, or the discussions collapse, the case proceeds to the trial. In this stage, your attorney will present the following legal defenses for a fair verdict:

  1. Your Actions Do Not Qualify as Lewd Behavior in Public

Your attorney will evaluate the circumstances surrounding the arrest to cast reasonable doubt on whether your actions amount to lewdness or sexual conduct. Prosecutors blow the charges out of proportion sometimes, leading to overcharges. If you have been overcharged, your attorney should find evidence to put reasonable doubt about you committing the alleged crime. The attorney can use video footage or witness testimony to show that the act you were engaging in leading to arrest does not amount to public lewdness.

  1. Your Conduct was Not Intended for Sexual Arousal or Satisfaction

The prosecutor must show the aim of engaging in the sexual conduct was to obtain sexual arousal, satisfaction, or to be seen. However, proving the element is usually challenging because the DA cannot access your mind to show your motive or plans when the alleged violation happened. This creates room for your attorney to argue that you reasonably believed no one would see you and that you were not touching yourself or another party for gratification. For instance, the attorney can say you were touching or rubbing your genitals because they were itching. Also, you could claim that you were only sunbathing naked on private property because you reasonably believed no one was around to see you naked. Unless the DA can show you ought to have known someone was present to be offended by the act, the judge will dismiss your case.

If the prosecutor cannot prove sexual intent beyond a reasonable doubt, the court will dismiss your charges.

  1. Police Entrapment

Arrests for public lewdness typically happen after a public complaint, which results in a sting operation. Therefore, when undercover police induce you to engage in sexual conduct leading to an arrest, your attorney can raise the entrapment defense. However, they must show you could not have otherwise engaged in the lewd conduct in public if the police did not induce or push you into doing so.

The police commissioning the offense or presenting you with the opportunity to violate the law is not entrapment. You should demonstrate that the authorities used pressure, threats, or fraud to push you, a law-abiding citizen, to commit an offense.

  1. Mistaken Identity

Another defense is arguing that you were mistakenly identified as the perpetrator. Still, you could not have committed the crime because you have an alibi that places you in a different location when the offense happened. You can be arrested for resembling the physical description of the perpetrator. Therefore, you must present evidence that places you in a different location, like video footage or an alibi. That way, you will show the court you could not have committed the crime, making you innocent.

  1. The Police Violated Your Rights

Even when you commit a crime, the police should not breach your constitutional rights during investigations or arrest, because it renders the arrest illegal, and any subsequent evidence cannot be used in court. Therefore, if you can identify instances where your rights were contravened, the prosecutor will be willing to offer a fair plea deal or drop the case. Your rights include:

  • The right to preserve your freedom during interrogations by staying silent until your legal representative is present
  • You are entitled to legal counsel or representation
  • You are entitled to protection against illegal searches under the Fourth Amendment

You should speak to your attorney to discuss your rights and identify instances during investigations or arrests when authorities violated your rights. These will help in crafting solid defenses.

Public lewdness charges are not always clear. The court interprets the case depending on the factors surrounding the case. Therefore, talk to an experienced criminal attorney to understand your case and identify the best defenses to increase the possibility of a fair verdict in trial.

The Importance of a Defense Attorney In the Case

You should contact your defense attorney immediately when you learn of an investigation or impending arrest for public lewdness. A proficient attorney understands the statutes that apply in your case, the criminal court system, and the everyday challenges you are likely to face, thus streamlining the process.

The criminal penalties and collateral consequences of a conviction for a sex offense, including public lewdness, can be devastating. Thankfully, an attorney can help prevent or reduce the effects of these consequences through proper legal representation. The crucial roles of an attorney in your case are:

  • Offering legal counsel and guidance
  • Poking holes in the evidence the prosecutor has against you
  • Negotiating with the prosecutor for charge dismissal, reduction, or a fair plea deal
  • Representing and defending you in court
  • Present mitigating factors for a lenient sentence
  • File an appeal if the court’s verdict is unfair

Find a Competent Sex Crimes Defense Attorney Near Me

When you face charges for public lewdness, it is crucial to understand PEN §21.07, possible penalties, and the best defenses to prevent a guilty verdict. The best person to help you in this difficult time is an experienced criminal attorney. At Andrew Deegan Criminal Lawyer At Law, we understand Texas and the criminal justice systems, making us suitable to defend against your charges. Call us at 817-689-7002 for a no-obligation case discussion in Fort Worth, TX.