New Jersey Lewdness: Introduction
The place in the New Jersey Code of Criminal Justice that defines lewdness is N.J.S. 2C:14-4. It immediately follows N.J.S. 2C:14-3, criminal sexual contact. N.J.S. 2C:14-4 describes lewdness as a “flagrantly lewd and offensive act.”
New Jersey Lewdness: Defining Lewdness
“Flagrantly lewd and offensive act.” is less than precise. In fact, no singular definition of lewdness exists. Rather, lewdness is an “I know it when I see it” sort of offense. Thus, while it cannot be pinned down as specific conduct, a reasonable person is qualified to say whether an act is flagrantly lewd or not.
To constitute lewdness, the conduct must be something that the actor knows or reasonably expects is likely to be seen by other persons. To obtain a conviction, the State must prove that those other persons are nonconsenting, and are persons who would be affronted or alarmed.
Lewdness is more than simple public nudity. For one thing, lewdness requires that a victim actually see the exposure, rather than just be in its vicinity. Exposure can be unintentional and still constitute lewdness, so long as another sees it and is affronted. Lewdness does require the actor's knowledge or reasonable expectation that a person will see the exposure.
New Jersey Lewdness: Different Grades of Lewdness
Lewdness often arises in the context of public intoxication, public urination, and sexual acts in cars, on beaches, or in parks. New Jersey typically classifies such lewdness as a disorderly persons offense. What starts out as lewdness, however, can become a criminal sexual contact when there is more than just an exposure of intimate parts. Thus lewdness is a fourth degree crime when a person exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of himself or anyone else if he reasonably expects he is likely to be seen by someone under the age of thirteen. When lewdness is accompanied by touching, and occurs in front of children under the age of thirteen, it can constitute second-degree sexual assault. This is true even when the touching be of oneself.
New Jersey Lawdness: Court Analysis
Putting this into context is State v. Hackett, 323 N.J. Super. 460 (App. Div. 1999), aff’d 166 N.J. 66, 76 (2001), a fourth-degree lewdness case. Charles Hackett was convicted of fourth-degree lewdness after three young girls saw him exposing himself at his apartment window. Rather than being just a one-time exposure, or exposure that was clearly an accident, Hackett stood before the completely open window on multiple occasions. Each time this occurred, female students were assembling at a nearby school bus stop. Being fully nude, his genitals were clearly and overtly exposed. On one occasion, an older girl had approached Hackett. She explained to him that her friends were too young for him to be exposing himself as he was. The confrontation sufficiently established that there was a sexually explicit element to the crime, known by all parties.
Hackett being on private property was no defense. He positioning himself in a window with no blinds or curtains, and near a school bus stop. That was enough for him to have a reasonable expectation that persons under the age of thirteen would see him. The court affirmed Hackett's conviction of fourth-degree lewdness.
New Jersey Lawdness: More Court Analysis
Another case that helps put the subjective nature of lewdness into perspective is State of New Jersey v. Pinto, Docket No. A-1944-04T5 (App. Div. 2005). A CVS employee observed Matthew Pinto vigorously rubbing his groin area in the same aisle as two young women. The employee believed Pinto was masturbating, although she saw no facial expressions and heard no exclamations that indicated this. Pinto contended that he was just scratching a jock itch.
At his trial, the court determined that Pinto's rubbing of his groin in a public place, for whatever reason, constituted lewdness. Despite it being nonsexual, his knowingly touching a private area in view of others was lewd, said the judge, and violated N.J.S. 2C:14-4a.
Pinto appealed. He claimed that exposure of the genitals must occur in order for there to be a lewdness conviction, even disorderly persons lewdness.
The appeals court disagreed with Pinto's characterization of what disorderly persons lewdness is, but did agree with Pinto that his conduct was not sufficiently lewd.
If there were evidence indicating Pinto was masturbating over his pants, that conduct could be lewd, even absent genital exposure. Unlike fourth-degree lewdness, disorderly persons lewdness does not require genital exposure. Although lewd acts can include genital exposure for sexual reasons, they are not limited to this. In Pinto's case, though, his mere rubbing and scratching of his genital area over clothing was not flagrantly lewd or offensive. Thus the court held that his conduct did not rise to the level of disorderly persons lewdness.
New Jersey Lawdness: Consequences of Conviction
When prosecuted as a fourth degree crime, and even when prosecuted as a disorderly persons offense, lewdness charges become part of a person's criminal record. That criminal record remains with New Jersey State Police and the FBI. It is available to current and potential employers, landlords, licensing agencies, and nosy neighbors. This, of course, is in addition to fines and possible imprisonment. Thus, even when “only” a disorderly persons offense, a lewdness conviction will be a horrible handicap for anyone seeking decent employment, or other responsible position.
New Jersey Lewdness Lawyers: The Law Offices of Allan Marain
Allan Marain and Norman Epting, Jr. are highly experienced New Jersey criminal defense lawyers. Both have successfully defended persons accused of lewdness and other sexual offenses. They are available to discuss your situation in a confidential, no-obligation conference.