You may have seen the headlines that result from arrests for lewdness in New Jersey, particularly when the acts have occurred in public places:
Jackson Township elementary school teacher arrested for public lewdness at rest stop.
April 17, 2010-A second grade teacher who was masturbating in a public area near the men's rest room at the Monmouth Service area along the Garden State Parkway in Wall Township was arrested by a State Police detective.
2 men charged with lewdness at I-78 rest area.
August 05, 2009-Two men, ages 45 and 60, were arrested after a trooper found them having sex in plain view at the rest area on the westbound side of Route 78 in Bethlehem Township.
What about Lewdness in Bergen County?
Bergen County is no exception. Lewdness arrests in Bergen often occur in the park system-Overpeck Park in Leonia, Foschini Park in Hackensack, the Palisades Interstate Park (including the parking lot of the State Line lookout), to name just a few-and the rest stops at service areas along the Turnpike (the Vince Lombardi area in particular) and the Garden State Parkway (The Montvale Rest Stop).
Sometimes the cases affect an entire community, such as when the popular head of a music department in a Bergen County high school was arrested for lewdness after he was apprehended masturbating next to another man at a urinal in a Montvale rest room along the Garden State Parkway. The teacher was eventually convicted and lost his job, despite having tenure.
Remember that behind each headline is a person who is caught up in the legal system-and who definitely needs advice and help from an attorney experienced in dealing with these kinds of cases.
What does the Lewdness statute say?
N.J.S.A. 2C:14-4. Lewdness.
a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.
b. A person commits a crime of the fourth degree if:
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
(2) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor's conduct.
c. As used in this section:
"lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.
The highlighting emphasizes that lewdness can be either a disorderly persons offense or a crime of the fourth degree, which is much more serious.
The defense lawyer will investigate and evaluate the case to see if an outright acquittal is feasible, but if not, then the aim will be to explore the possibility of a diversion or to reduce the charge to a disorderly persons offense.
How a Lewdness Defense Attorney looks at the Lewdness statute.
The statute was designed to protect all non-consenting persons, but particularly children and the mentally challenged. The penalties are more severe depending on who was victimized by the defendant's conduct. There will even be instances where no one who witnessed the conduct was non-consenting.
A few examples will make this clearer.
Inside a bar, a dancer's routine may be flagrantly lewd, but the audience is restricted and the people who see the dance are all consenting adults who are not likely to be affronted or alarmed. So, the dancer is unlikely to be charged with lewdness. State v. Capetta, 180 N.J.Super. 300 (Law Div. 1981).
On a public beach, a person who exposes himself for the purpose of sexual arousal will be charged with criminal lewdness if he is within the field of vision of children and therefore can reasonably expect he is likely to be observed by them. State v. Zeidell, 154 N.J. 417 (1998).
In a public restroom, open masturbation will be considered flagrantly lewd regardless of the defendant's state of mind. Section "a" of the statute does not require that the activity be done with a particular purpose. It also doesn't matter if there were no victims (nonconsenting people) actually present.
As you can see, an attorney has to evaluate (1) where the act occurred, (2) the exact conduct that occurred, (3) who saw it, (4) who could have seen it, (5) the reaction of the viewer, and (6) the actor's state of mind based on all of the circumstances.
Thus, there is a difference with real legal consequences between someone who walks out of the shower naked and unexpectedly encounters a child and someone who stands naked at the picture window in his living room in full view of children at a bus stop. State v. Hackett, 323 N.J. Super. 460, 474 (App. Div. 1999), aff'd, 166 N.J. 66, 76 (2001). Nudity depends on the context.
Note that the lewdness statute can sometimes be used as an alternative to avoid conviction for a much more serious crime. For example, a person who masturbates in the presence of a victim who is less than 13 may be charged with tender years sexual assault-which is a second degree crime with virtually certain incarceration and lifetime consequences for supervision. N.J.S.A. 2C:14-2b. Under those circumstances, a defense attorney will attempt to fit the crime under lewdness, much to the benefit of the client.
Contact an experienced Lewdness Criminal Defense Attorney.
As with any serious charge, never go to court alone. Lewdness charges are not only devastating personally, they can have real consequences for a person's livelihood and even their freedom. If you have been charged with lewdness, the experienced lewdness defense attorneys at Brickfield & Donahue would welcome your inquiries. We have helped many people through the procedure and if you contact us immediately, an experienced lewdness defense lawyer from our office will do their best to ensure that your case is handled properly and promptly. To contact a criminal defense attorney at Brickfield & Donahue, call (201) 488-7707 or send us an email.
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"Keep in mind that nothing contained in this article should be considered legal advice. The law can and often does change. If you have a specific legal issue or problem, consult an attorney."