By Shaffer & Engle Law Offices, LLC posted in Sex Crimes on Monday, February 18, 2013
Indecent exposure must occur in a public place, outside the confines of one's home or business. Open lewdness may occur in a place open to public view.
By ** Attorney Elisabeth K.H. Pasqualini**, Sex Offense Lawyer, Harrisburg, PA
I had a recent matter that involved establishing the difference to these very similar, but distinct, sex offenses. They are different statutory sections of the Pa. Crimes Code, have different definitions (although they appear similar), and have different gradations.
The Statutory Definitions
Indecent Exposure- 18 Pa.C.S. Section 3127- A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm. (emphasis added). This offense is generally a misdemeanor second degree, but can be heightened to a misdemeanor first degree if the victim is less than 16.
Open Lewdness- 18 Pa.C.S. Section 5901- A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.
What's the Difference? A Case Study
In a more recent appellate decision, the Superior Court held in DeWalt that the evidence was insufficient to establish that defendant's actions, namely doing striptease while outside on her own back porch in the company of adults, took place in a "public place" as required by indecent exposure statute. Com. v. DeWalt, 752 A.2d 915 (Pa.Super. 2000).
They are both similar in that neither indecent exposure nor its companion offense, open lewdness, requires proof of intent to affront or alarm the general public. Id. No malicious intent is required.
It used to be that indecent exposure need not be in a public place. Id., citing Commonwealth v. Back, 255 Pa.Super. 603, 389 A.2d 141 (1978). At the time of the Back decision, however, the operative language, "in any public place" was not in the statute. Therefore, the current statutory language controls. It must be done in public, not in your home subject to public view. Rather, it must be out in the public. A typical indecent exposure case occurs where one "flashes" another individual at the grocery store. If the person would flash the victim from inside his home, it would be open lewdness.
The offense of open lewdness must be committed in a notorious fashion in a place open to the public view. Such misconduct in front of an open window fronting on a public street constituted the offense. Com. v. Alessi, 29 Erie C.L.J. 172 (1946). The accused here was inside his home and the victim was outside the home.