Indecent exposure is a common law crime that is rooted in history and has existed in one form or another throughout most of the United States for more than 150 years. While it exists in various forms in different states, in most states, as in Virginia, it usually entails either nudity or some sort of sex act in a public place. Historically, indecent exposure charges were also brought against some woman who dressed “provocatively,” such as the famous case of Australian swimmer Annette Kellerman who was arrested for public indecency for wearing a one-piece bathing suit on a public beach in Boston in 1907. In the past century, public decency standards have relaxed somewhat, and the crime of indecent exposure is generally associated today with men who expose or pleasure themselves in public.
In Virginia, the law is found under Virginia Code Section 18.2-387, which states:
Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.
As stated above, Virginia basically uses the common law language for indecent exposure in its statute. This law today is usually employed by law enforcement to prohibit masturbation, nudity and sex acts in public. When applying this rule to specific cases, however, the law regarding indecent exposure in Virginia becomes a little less clear. Historically, the common law required exposure of some sort; however under Virginia law a person can be found guilty of indecent exposure while fully clothed.
For example, in 2005 the Virginia Court of Appeals had to decide what to do in the case of Moses v. Commonwealth where a person was fully clothed but apparently pleasuring himself in a department store. This presented the interesting issue of whether this sort of behavior constitutes an “obscene display” or “exposure” where no nudity was involved. Other states have decided that some form of exposure is necessary for someone to be found guilty of this crime, but the Virginia court decided that “obscene display” could mean something else, and didn’t require any exposure. Since that court case, the police in Virginia can charge someone with indecent exposure if they even suspect that a person was engaged in some sort of sexual activity.
The result of the Moses case and others like it is that Virginia has one of the harshest indecent exposure cases in the United States. This has led to various criticisms, in particular that men could be charged for simply “adjusting” themselves or other less offensive behavior simply because of how it is interpreted by others. Others have observed that since no exposure or nudity is required any longer, the line is blurry in terms of what sort of public displays of affection are legal. For example, two people, fully unclothed and engaging in sex in the middle of a public park at noon would probably be indecent exposure. However, what if those same two people were cuddling under a blanket and well hidden under some bushes? What if they were fully clothed in a car parked on a quiet street at midnight? Does it matter what type of activity they are engaged in? Are the days of making out at the movie theatre over forever?
These are the sorts of questions that judges and attorneys in Virginia are answering every day. For example, in the case of Stiftar v. Commonwealth, a case from Fairfax County, the Court of Appeals decided that a man who was seen fully naked at his window multiple times by his neighbors was not guilty of indecent exposure, because it could not be proven beyond a reasonable doubt that he intentionally exposed himself.
Other indecent exposure cases in Virginia are determined based on what a court determines is “obscene.” This term is defines in Virginia Code Section 18.2-387 as follows:
The word "obscene" where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.
In 2000, the Court of Appeals was asked to decide what was obscene in a case called Copeland v. Commonwealth from Alexandria, Virginia. In that case the court decided that a man who was found pleasuring himself outside the window of another person’s private residence was guilty of indecent exposure. The defendant had argued that he was engaged in normal sexual behavior that was not “obscene” and that he was not in public and not expecting to be noticed by anyone. The court determined that this was in fact obscene behavior and that he was in a place “where others are present” and was therefore guilty of indecent exposure under the law of Virginia. This case demonstrates again how important every single fact in a case is, and the several elements of the law that must be proven for a prosecutor to win a case against a defendant.
If you or a loved one has been charged with indecent exposure in Virginia, you need an attorney who understand the law, how the courts interpret it, and will work hard to defend you!