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Public Lewdness

Public lewdness forbids sexually explicit activity that can be seen by non-participants that are likely to be offended. Under Texas law, Penal Code Section 21.07 prohibits certain forms of sexual conduct if conducted in a certain specified location, which includes a “public place.” The definition of “public place” is set out in Penal Code Section 1.07(a)(29).

The offense might also be committed in a private place, but only if there is anyone present who may be offended or alarmed by the act. The charge of public lewdness depends on either the nature of the location or the type of person that sees the act. The crime of public lewdness is a Class A misdemeanor under Texas law.

Attorney for Public Lewdness in San Antonio, Texas

If you were arrested for the misdemeanor offense of public lewdness or another type of felony or misdemeanor sexual motivated offense then contact an experienced criminal defense attorney at Goldstein & Orr.

Our offices are located in Plano, Texas. We represent clients throughout San Antonio and Bexar County, TX, as well as the surrounding areas. Call (210) 226-1463 for a free consultation. We can begin your defense today.

Two Alternative Ways of Proving “Public Lewdness” in Texas

The statute was enacted in 1970 did not include a public place element. Instead, it focused only on the nature of the audience. Previously, the law had focused only on the location in which the act was carried out. Then in 1974, the statute was amended to use both an element related to the location and an element related to the audience.

Under Texas law, the prosecutor then has two ways to proceed in a public lewdness prosecution. First, the prosecutor can use a theory that the defendant was reckless about the presence of another person who would be offended by the act. If this theory is used, the information or charging document must allege specifically what act of the defendant committed that was reckless.

The types of sexual conduct covered by Texas’ public lewdness statute include:

  • sexual contact;
  • sexual intercourse;
  • deviate sexual intercourse; and
  • sexual contact with animals.

Most of the reported cases for this criminal offense involve an allegation of sexual conduct as the underlying act.

“Sexual Conduct” under the Texas Statute for Public Lewdness

For an allegation of “sexual contact,” the statutory scheme does not require actual physical contact between the skin of the complainant and the defendant. Instead, it merely requires that the hand of the defendant be placed upon the complainant’s body part which can include an over the clothes touching.

In fact, the Court of Criminal Appeals held that “sexual contact” means to put the hand or other part of the body on the other person so as to feel or to perceive by the sense of feeling. Resnick v. State, 574 S.W.2d 558 (Tex.Crim.App.1978).

On the other hand, for an offense involving public lewdness involving deviate sexual intercourse, the law requires actual contact with the skin.

One important limitation to the concept of “sexual conduct” is that it requires that a defendant affirmatively seek to touch another sexually. Simply allowing another to touch him or her is not enough for a prosecuted. The courts in Texas have held merely allowing another person to touch one’s genitals in order to gratify one’s own sexual desire is not an offense. Herring v. State, 659 S.W.2d 391 (Tex.Crim.App.1983).

The charge of “public lewdness” under Texas law is different from “indecent exposure.” The main focus of public lewdness is that the act is performed in public place. On the other hand, the focus of indecent exposure is the exposure of the genitals in a manner that is reckless about whether another person is present who will be offended or alarmed by the act. While public lewdness is a class A misdemeanor, the act of indecent exposure is a class B misdemeanor.

Additional Resources

Public Lewdness and Other Sexual Offenses – Visit the website of the Texas Legislature to read the statutory language for a variety of sexual offenses under Title 5, Chapter 21. Find the definitions for “deviate sexual intercourse,” “sexual contact,” “sexual intercourse,” and “spouse.” Related offenses can include indecent exposure.

Attorney for Public Lewdness in Plano, TX

If you were charged with public lewdness or another type of sexually motivated crime in the greater San Antonio area of Texas, then contact an experienced San Antonio criminal defense lawyer at Goldstein & Orr. We represent clients charged with sexual assault and the disclosure of intimate material (often called “revenge porn“).

Call (210) 226-1463 today for a free and confidential consultation to discuss the facts of your case.


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