Avvo - Rate your Lawyer. Get Free Legal Advice.

© 2023 by The Stone Law Firm.Proudly created with Wix.com

FOLLOW US:

  • w-facebook
  • Twitter Clean

Lewdness

Utah Code Section: 76-9-702

Elements

 

76-9-702.  Lewdness. 

(1)A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, sexual abuse of a minor, unlawful sexual conduct with a 16- or 17-year-old, custodial sexual relations or misconduct under Section 76-5-412 or 76-5-413, or an attempt to commit any of these offenses, performs any of the following acts in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older:

(a)an act of sexual intercourse or sodomy;

(b)exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;

(c)masturbates; or

(d)any other act of lewdness.(

(3)A woman's breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.

 

 

Defending a Lewdness Charge

Lewdness charges are challenging cases in that the prosecution must prove beyond a reasonable doubt the actus reus (that the act occurred) and a curious mens rea (the mental state the defendant had in committing the act, if not committed in public.  

Initially, the question for a defense attorney is whether the prosecution can establish that the act occurred at all. 

 

There is considerable grey area in making this determination.  For example: what exactly constitutes a public place?  What about your home, which is a private place, but activity can be seen through a window or over a fence from another home or the road or sidewalk?  What exactly constitutes the buttocks or pubic area?  Does a thong bikini constitute showing the buttocks?  Do pants that are hanging low on the hips exposing the top part of the buttocks constitute "buttocks".  All of the foregoing can provide the reasonable doubt a defense attorney needs to cast doubt as to whether the act occurred at all. 

In addition, to the act, the prosecution must establish beyond a reasonable doubt that if the act was not committed in public that the defendant acted under circumstances he/she should know would likely cause affront or alarm to a person who is 14 years of age or older.  If the act occurred in the presence of a child under 14, then the charge is lewdness in the presence of a child, which is a separate charge.  

The "should know" component of a lewdness charge is prime territory for defenses.  For example, should a person have known that they would cause affront or alarm to someone if they were walking around their house naked without blinds/curtains being drawn?  Should a person have known that tanning topless/naked in their own back yard which could be seen if someone looked through portions of a fence would cause affront or alarm?

All of the foregoing are questions for a jury, and are not determined as a matter of law.  A skilled defense attorney can paint an effective picture eviscerating a claim that he/she should have known better.  

 

Sex Offender Registration

 

A defendant does not have to register as a sex offender for a first conviction of lewdness in Utah.  However, if a defendant collects 4 convictions for lewdness, 4 convictions of sexual battery, or a mix of 4 total sexual battery and lewdness convictions, he/she will be required to register for a period of ten years, per UCA  77-41-102 and 77-41-105.  

Jail/Prison time, fines & restitution

(a)A person convicted the first or second time of a violation of Subsection (1) is guilty of a class B misdemeanor, except under Subsection (2)(b).

(b)A person convicted of a violation of Subsection (1) is guilty of a third degree felony if at the time of the violation:

(i)the person is a sex offender as defined in Section 77-27-21.7;

(ii)the person has been previously convicted two or more times of violating Subsection (1); or

(iii)the person has previously been convicted of a violation of Subsection (1) and has also previously been convicted of a violation of Section 76-9-702.5.

(c)

(i)For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.

(ii)This Subsection (2)(c) also applies if the charge under this Subsection (2) has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

 

 
Removal from Sex Offender Registry in 5 Years

Click for Video

 

There is a possibility of removal from the sex offender registry within 5 years of the termination of the sentence (the end of probation) under the following conditions:

 

The offender was convicted of:

(1) Kidnapping, and the conviction is the only conviction for which the offender is required to register;

(2) Unlawful Detention, and the conviction is the only conviction for which the offender is required to register;

(3) Unlawful sexual activity with a minor and, at the time of the offense, was not more than 10 years older than the victim; or

(4) Unlawful sexual conduct with a 16 or 17 year old, and at the time of the offense, was not more than 15 years older than the victim;

 

Requirements:

(b)five years have passed since the completion of the offender's sentence;

(c)the offender has successfully completed all treatment ordered by the court;

(i)the offender has not been convicted of any other crime, excluding traffic offenses, as evidenced by a certificate of eligibility issued by the bureau;

(ii) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;

(e)the offender has paid all restitution ordered by the court;

(f)the offender has complied with all the registration requirements at all times as required in this chapter, as evidenced by a document obtained by the offender from the Utah Department of Corrections, which confirms compliance; and

(g)the office that prosecuted the offender, and the victim, or if the victim is still a minor, the victim's parent, are notified and provided with an opportunity to respond in accordance with Subsection (3)(a).