Have You Been Charged with Public Indecency?
In Georgia, public indecency is a criminal offense governed by O.C.G.A. § 16-6-8. It involves the act of engaging in lewd, offensive, or sexually explicit conduct in public or in places where others can observe it.
A conviction for public indecency can lead to significant legal consequences, including criminal fines, jail time, and the social stigma of a criminal record.
However, there are several defenses that individuals accused of public indecency may raise in an effort to avoid a conviction.
As Georgia criminal defense attorneys, we wanted to write a blog post exploring the common defenses available to individuals charged with public indecency under Georgia law. By understanding these defenses, you can better assess your legal options if you are facing such charges.
What Is Public Indecency Under O.C.G.A. § 16-6-8?
Before we dive into the defenses, it's essential to understand the core elements of the offense of public indecency in Georgia. Under O.C.G.A. § 16-6-8, a person commits the crime of public indecency if they commit:
- (1) An act of sexual intercourse;
- (2) A lewd exposure of the sexual organs;
- (3) A lewd appearance in a state of partial or complete nudity; or
- (4) A lewd caress or indecent fondling of the body of another person.
The charge of public indecency is typically a misdemeanor offense. However, the penalties can vary depending on the specifics of the case, such as the location of the incident, whether minors were involved, or whether the person has a prior criminal history.
Given the serious implications of a conviction for public indecency, it is crucial to explore all available defenses. Below, we outline the most common defenses that may be raised in cases involving charges under O.C.G.A. § 16-6-8.
1. Lack of Lewd Intent
One of the most effective defenses to a charge of public indecency is that the accused did not have the intent to offend or shock others. O.C.G.A. § 16-6-8 requires that the defendant must have engaged in the offensive conduct with the intent to provoke or offend others. If the prosecution cannot prove that the defendant intended to offend others, the charge may not stand.
For example, if an individual accidentally exposes their genitals without any intention of doing so (such as in an accident involving their clothing), they may have a valid defense. Similarly, if someone engaged in behavior that was not meant to be sexual or offensive—such as a medical procedure in a public place—the defense could argue that there was no intent to shock or offend anyone.
2. False Allegations or Lack of Evidence
Like any criminal offense, charges of public indecency can stem from false allegations. The prosecution must present evidence beyond a reasonable doubt that the defendant engaged in lewd or indecent conduct in public. If the defense can show that the allegations are false or that there is insufficient evidence to support the charge, the case may be dismissed or the defendant acquitted.
Common issues that can lead to a lack of evidence include:
- Lack of witnesses: If there were no witnesses to the alleged incident, the prosecution may struggle to prove its case.
- Credibility of the accuser: If the prosecution's witness has a history of dishonesty or a motive to fabricate the allegations (such as personal animosity toward the defendant), the defense may challenge their credibility.
- Inconsistent statements: If the accuser's statements about the incident change over time or are inconsistent with other available evidence (such as video footage), this can undermine the prosecution's case.
3. Involuntary Exposure or Conduct
Sometimes, individuals may be accused of public indecency when their exposure or conduct was not voluntary. For instance, a person might be accused of exposing themselves when their clothing inadvertently became dislodged. If the exposure or conduct was not intentional or voluntary, the individual may not be guilty of public indecency.
For example, someone could be walking in public, and their clothing could unexpectedly rip, causing unintended exposure of private parts. In such cases, the defense can argue that the defendant did not act intentionally to expose themselves or engage in indecent conduct.
4. Lack of Public Exposure
Under O.C.G.A. § 16-6-8, the act must occur in public or in a place where others can observe it. If the defendant was not in a location where the conduct could be witnessed by others, they may not be guilty of public indecency. Public places include parks, streets, beaches, or areas where members of the public have access. However, if the act occurred in a private location, such as the privacy of one’s own home, the charge of public indecency may not apply.
In some cases, the defense may argue that the alleged conduct took place in a location where no one was present to observe it, making it not truly “public.” For example, if the individual was engaged in the act in a secluded area of a park with no one around, they may not meet the legal definition of public indecency.
5. Freedom of Expression
The First Amendment to the United States Constitution protects an individual's freedom of expression. While public indecency laws aim to prevent conduct that is offensive to public decency, they must also respect constitutional rights. In certain cases, the defendant may argue that their conduct was an act of free expression, such as an artistic or political statement.
For instance, if someone engages in a public protest or artistic performance that involves nudity or sexual expression, the defense may argue that the conduct was protected as a form of free speech or artistic expression. The court would need to balance the constitutional right to free expression with the state's interest in maintaining public order and decency.
6. Entrapment
Entrapment occurs when law enforcement officers or government agents induce an individual to commit a crime that they would not have otherwise committed. In a public indecency case, entrapment could occur if undercover officers encouraged or coerced someone to engage in indecent conduct in public.
To establish entrapment, the defense must show that:
- The defendant was not predisposed to engage in the alleged criminal conduct.
- The government encouraged or induced the defendant to commit the offense.
If the defense can demonstrate that law enforcement officers led the defendant to commit the crime, it may result in a dismissal of charges or an acquittal.
7. Mistaken Identity
Another possible defense is mistaken identity. If someone else was engaged in the conduct that led to the charge of public indecency, but the defendant was wrongly identified, the defendant may present a defense based on mistaken identity. This could involve presenting evidence such as alibi witnesses or surveillance footage that shows the defendant was not at the location where the incident occurred.
8. Age of the Defendant
Georgia law provides specific protections for minors accused of public indecency. In some cases, the age of the defendant may affect the prosecution's ability to pursue a public indecency charge. If the defendant is a minor, they may face less severe penalties, and their conduct may be subject to different legal standards than that of an adult. The defense can argue that the defendant was too young to be subject to criminal penalties for public indecency.
9. Consent
In some situations, a person might be accused of public indecency for engaging in sexual acts in public with a consenting adult. While public indecency laws are aimed at protecting the public from offensive conduct, a defense could be raised if the conduct occurred between consenting adults in a private area where they could reasonably expect privacy. However, this defense would not typically apply if the conduct was visible to the public.
Public Indecency Lawyer Near Me
Facing a public indecency charge under O.C.G.A. § 16-6-8 can be distressing, but individuals accused of such crimes have a number of potential defenses at their disposal. Whether it’s a lack of lewd intent, insufficient evidence, or a constitutional right to free expression, the defense strategies available to someone facing public indecency charges can vary depending on the circumstances.
If you or someone you know is charged with public indecency in Georgia, it is critical to consult with us, experienced criminal defense attorneys. A skilled lawyer can help assess the situation, gather evidence, and determine the best defense strategy to protect your rights and minimize the impact of the charge.
By understanding the defenses available under O.C.G.A. § 16-6-8, individuals can make more informed decisions and take steps to defend themselves effectively against these serious charges.
If you need legal assistance or representation in a public indecency case, don’t hesitate to contact The Sherman Law Group for a consultation, 24/7.