ENGAGING IN A LEWD ACT – SOLICITATION OF A LEWD ACT
PENAL CODE SECTION 647(a)

California lewd conduct offense, like any other sex related offense, carries with it a stigma of being a sex offender. As a result, many individuals who are arrested for lewd conduct are often traumatized by the arrest and overwhelmed with fear and concern about what will happen to them. It is also not uncommon for them to experience feelings of shame and embarrassment.

Fortunately, in many instances the accused has not broken the law or done anything wrong. An all too typical scenario in these matters involves an undercover police sting operation. It all starts when a person walks into a public restroom somewhere such as in a park, unaware that inside is an undercover police officer whose sole purpose is to gain his/her confidence in an attempt to get them to engage in a lewd act. Upon entry, the undercover agent tries to gain the individual’s confidence through a number of behaviors, such as making eye contact, making suggestive body movements, lingering around a toilet, following you in and out the bathroom and making suggestive conversation. The moment the officer construes any behavior on the individual’s part as an attempt to engage the officer in a lewd act, that person is arrested.

It should be noted that lewd conduct cases very rarely, if never, involve individuals engaging in acts of heterosexual conduct. The police sting operations always target public places where they believe gay sex is common to occur.

California lewd conduct is governed by Penal Code Section 647(a), which states the law regarding both:

1. Engaging in lewd conduct

and

2. Solicitation to engage in lewd conduct.

To prove that someone is guilty of committing the crime of lewd conduct, the following must be shown:

1. That the individual engaged in the touching of his own or another person’s genitals, buttocks or female breast.
2. The individual did so with the intent to sexually arouse or gratify himself or another person, or to annoy or offend another person.
3. At the time that the individual engaged in the conduct, he/she was in a public place or a place open to the public or to public view.
4. At the time that the individual engaged in the conduct, someone else who might have been offended was present.
5. The individual knew or reasonably should have known that another person who might have been offended by their conduct was present.

Why are lewd conduct cases difficult to prove?

As these cases pertain to police sting operations, it is this last element of proof that often makes them hard to prove. The reason is that if an undercover officer is acting in ways to get the person’s confidence then it is not unreasonable to believe that that he/she will not be offended by your actions. Actually, it is more reasonable to think that the undercover officer is not going to be offended.

What can you do to help your defense?

The best thing you can do is to write down a detailed account of everything that happened. Spare no detail as this will only serve to help your lawyer determine whether you have a valid defense. In making your notes regarding the incident, make sure you pay special attention to the following:

1. Any and all behaviors engaged in by the undercover officer such as eye contact, body language, loitering, statements, etc.
2. Any and all of your own behaviors.
3. The exact nature of what you are accused of doing, i.e. exposing yourself, masturbating, etc.
4. The specific location of where the act was alleged to have taken place, i.e. in the stall or at the urinal.
5. The number of individuals present at any time during the alleged incident.

Whatever the facts of your case may be, if you or a loved one have been arrested for a lewd act in California it is important to contact a California lewd conduct lawyer who understands the problems of proof that often arise in these types of cases. California criminal defense lawyer Gabriel Dorman understands the dynamics of lewd act cases and how undercover police activity often crosses the line in their effort to secure an arrest. It is this understanding and insight that has allowed him to aggressively challenge the evidence in lewd act cases to successfully defend people and achieve the result they deserve.