Criminal Defense Lawyers in Columbus Safeguarding the Rights of those Accused of Indecent Exposure in Ohio
Even if done recklessly or in jest, indecent exposure as criminalized by Ohio Code § 2907.09 is an Ohio sex offense potentially requiring registration on the Ohio Sex Offender Registry. Tier I sex offenders are subject to strict residency, travel, work, and lifestyle restrictions often more punishing than the direct penalties of the conviction itself. Intoxication, mistake, and misunderstandings are generally not defenses to indecent exposure charges in Ohio.
Don’t let a single reckless mistake change your life. There are defenses to indecent exposure charges in Ohio, and some offenders may avoid designation as a sexual offender with the help of an experienced Columbus indecent exposure defense attorney at the Joslyn Law Firm. Contact our experienced public indecency criminal defense lawyers today online or at (614) 444-1900 for your free, confidential Ohio sex crimes defense consultation.
Columbus Information Center for Public Indecency (Indecent Exposure) Charges Presented by Columbus Sex Crime Defense Attorneys
The Joslyn Law Firm’s Columbus Information Center for Public Indecency (Indecent Exposure) Charges provides a comprehensive overview of the criminal elements, penalties, and defenses to charges of indecent exposure under Ohio Code § 2907.09. Indecent exposure is a sex crime in Ohio and may be punishable as either a misdemeanor or felony with designation as an Ohio sex offender. For questions about a specific case, consult an experienced Columbus indecent exposure and sex crimes defense lawyer at the Joslyn Law Firm directly. Read on for an overview of how indecent exposure is handled in Columbus.
- Defining Indecent Exposure (Public Indecency) in Ohio
- The Elements and Proof Required for an Indecent Exposure Conviction in Columbus
- Intentional v. Accidental Indecent Exposure
- Special Considerations for Indecent Exposure to a Minor Charges
- Possible Direct Penalties of an Ohio Indecent Exposure Conviction
- The Indirect Penalties of an Ohio Indecent Exposure Conviction
- Common Defenses to Indecent Exposure Charges in Columbus
- FAQs Answered by Columbus Indecent Exposure Defense Attorneys
- Columbus Sexual Assault and Sex Crimes Resources
1. Defining Indecent Exposure (Public Indecency) in Ohio
Contrary to common understanding, public nudity isn’t required to sustain a conviction for public indecency under Ohio Code § 2907.09. While § 2907.09 does criminalize the reckless and intentional exposure of one’s private parts to affront others, it also criminalizes masturbation, sexual conduct (sex), and conduct that reasonably appears to be sexual conduct or masturbation even if undertaken in private. Conduct that qualifies as punishable under Ohio’s public indecency statute when the victim is affronted includes all of the following:
- Exposure of a person’s “private parts,” i.e., “genitals.” This typically does not include the non-sexual exposure of breasts or the buttock. However, exposure of non-genital body parts for the purpose of sexual arousal, to simulate or commit a sex act, or incident to masturbation may still be indecent exposure.
- Masturbation (actual, simulated, or apparent) – The manipulation of one’s genitals or certain erogenous zones for the purpose of sexual arousal. There need not be exposure of the private parts themselves for this to qualify as public indecency in Columbus.
- Sexual conduct (actual, simulated, or apparent) – Defined by Ohio law as vaginal, oral, or anal intercourse as accomplished with any body part or item, however slight the penetration.
- Expose one’s private parts to someone under the age of 18 for the purpose of luring the minor into sexual activity or for the offender’s personal sexual arousal or gratification.
The criminal conduct may be undertaken in private, public, or even in one’s own home provided it is “likely to be viewed by and affront others who are in the person’s physical proximity and who are not [adult] members of the person’s household.” The term “public,” therefore, doesn’t mean outside or in an otherwise public place. It means within view and proximity of someone who is not an adult member of your household (the public) and/or a minor even if he/she is a member of your household (child, grandchild, niece/nephew).
2. The Elements and Proof Required for an Indecent Exposure Conviction in Columbus
Columbus prosecutors must prove each applicable element of public indecency as written in Ohio Code § 2907.09 to sustain an indecent exposure conviction in Ohio. This means admissible evidence (sworn testimony, DNA, photographs/videos, a confession) must be submitted proving each of the following elements of indecent exposure:
- The conduct qualifies as “exposure” under the statute, i.e., revealing private parts or engaging in actual or seeming masturbation or sex, and
- The conduct was likely to be viewed by another, and
- The conduct was an “affront” to another, which typically means the victim was offended, insulted, disrespected, upset, or injured, and
- The other person (victim) was in the offender’s “physical proximity.” This typically means the victim was in danger of being touched by the offender if he/she did not move. For example, an offender on a rooftop or in the home across the street might not be considered in the other’s “physical proximity,” but an offender sitting in the same room as the victim or across the street is likely within the victim’s physical proximity, and
- The victim was not a member of the offender’s household, living with the offender, and/or was a minor (under 18) not legally married to the offender, and
- The exposure was “reckless,” which means unthinking or careless as to the obvious consequences of the exposure or was “knowing” if the victim was under 18.
Prosecutors need only prove a reasonable observer would believe the offender was masturbating or engaging in sexual conduct without regard to the likely presence of others. This opens the door for public indecency claims when the conduct was simulated in jest, or a reasonable person could mistake the conduct as sexual. The statute also punishes reckless conduct, which can include engaging in sex without locking the door when your child is due home from school. You don’t have to intend to indecently expose yourself to be convicted of public indecency in Ohio.
3. Intentional v. Accidental Indecent Exposure
The Ohio public indecency statute punishes both “reckless” and “knowing” indecent exposure. This generally excludes accidental exposure such as:
- A fly coming down in public
- Ripped pants
- An unexpected guest “walking in on you”
- Accidental exposure to trespassers
- A sudden medical emergency or exposure for a reasonable, non-sexual purpose
The purpose of and circumstances surrounding the exposure often determine whether it was reckless, knowing, intentional, negligent, or accidental.
Disputes often arise when the parties disagree as to whether the exposure was reckless, negligent, or accidental. Negligent and accidental exposures are not punishable under Ohio Code § 2907.09. Examples of each include the following:
- Intentional/Purposeful Exposure: Done on purpose, i.e., a naked man runs onto the football field in front of fans or takes his private parts out to show another.
- Knowing Exposure: Similar to intentional exposure but covers when an offender “should have known” from the facts that others were present or was “willfully blind” to the presence of others, such as when an offender masturbates in a public bathroom either knowing another is in the other stall or when he could have easily discerned the same.
- Reckless Exposure: Done with carelessness or with disregard to whether another is present and the other’s presence was likely, like an offender masturbating in a public park knowing others commonly walk through the park at that time.
- Negligent Exposure: The person was less careful than an ordinary individual would have been but not criminally so. For example, a man forgetting to zip his fly after using a public restroom was likely negligent and not reckless.
- Accidental Exposure: Completely unintentional and not due to ordinary negligence, like someone pulling down your pants in public or a stranger breaking into your house.
The mens rea – offender’s mental state – associated with public indecency charges is dependent on the circumstances of the offense. An offender who forgot to zip his fly at his daughter’s elementary school may be “reckless” based on these facts but merely negligent if the same action occurred while at Clippers game. An experienced Columbus public indecency defense lawyer will attempt to mitigate the offender’s mens rea to negligent or accidental from knowing or reckless.
4. Special Considerations for Indecent Exposure to a Minor Charges
Ohio law prohibits all forms of indecent exposure in the vicinity and view of someone who is not the offender’s spouse and is not a member of the offender’s household. However, it also prohibits certain forms of indecency when in the vicinity and view of a minor, even if he/she is a member of one’s household. A member of your household is someone who considers your home her permanent address. It does not include someone in the same apartment building, a separate apartment, non-residential family members, or frequent guests. A minor is still defined as someone under the age of 18, and the following types of indecent exposure are prohibited even if the minor is a member of your household (child, grandchild, niece):
- Engaging in masturbation or conduct appearing as masturbation to the reasonable observer
- Engaging in sexual conduct or actions appearing to be sexual conduct to the reasonable observer
- Knowingly exposing one’s genitals to the minor to lure the minor into sexual activity and/or for the purpose of personal arousal or gratification
The penalties for indecently exposing yourself to a minor, even a minor living in your household, are more severe than the penalties associated with indecent exposure to another adult. Further, public indecency in knowing view of a minor may result in categorization as an Ohio sex offender or child sex offender. This is an extremely serious designation with lasting consequences.
5. Possible Direct Penalties of an Ohio Indecent Exposure Conviction
First-time offenders convicted of public indecency in Ohio are guilty of a misdemeanor, but the offense level and associated penalties depend on the type of indecency. Repeat offenders are subject to either misdemeanor or felony-level penalties depending on their criminal history and the subsection under which they were convicted. The direct penalties of indecent exposure are as follows:
- For exposure of private parts to an adult as a first-time § 2907.09 offender – Fourth-degree misdemeanor punishable by up to 1 month in prison and/or a fine up to $250.
- For exposure of private parts to an adult as a second-time offender or for masturbation or sexual conduct as a first-time offender – Third-degree misdemeanor punishable by up to 2 months in prison and/or a fine up to $500.
- For exposure of one’s private parts to a minor as a first-time offender, for exposure of one’s private parts to an adult as a third-time offender, for masturbation or sexual conduct as a second-time offender, or for indecent exposure to a minor as a first-time offender – Second-degree misdemeanor punishable by up to 3 months in prison and/or a fine up to $750.
- For exposure of one’s private parts to a minor as a third-time offender, for exposure of one’s private parts to an adult as a fourth-time offender and thereafter, for masturbation or engaging in actual or apparent sexual conduct in view of a minor as a first-time offender, for masturbation/sexual conduct as a third-time offender, or for exposing oneself to a minor for the purpose of sexual gratification – First-degree misdemeanor punishable by up to 6 months in prison and/or a fine up to $1000.
- For exposure of one’s private parts to a minor as a fourth-time offender, engaging in masturbation/sexual conduct in view of a minor as a third-time offender, or for exposing oneself to a minor for the purpose of sexual gratification as a second-time offender and thereafter – Fifth-degree felony punishable by up to one year in prison and/or a fine up to $2,500.
Any offender convicted of knowingly exposing one’s genitals to a minor to lure the minor into sexual activity and/or for the purpose of personal arousal or gratification must be classified as a Tier I sex offender and child sex offender subject to registration on the Ohio sex offender registry. However, the judge has discretion to waive the required designation (although he/she is not required to do so) if either of the following applies:
- The offender is less than 10 years older than the minor victim – for example, a 14-year-old victim and 21-year-old offender. No offender over the age of 28 is eligible for this exception by default.
- The offender is more than 10 years older than the victim but is a first-time offender.
In addition to these direct penalties, offenders may be sentenced to:
- Removal from his/her household and/or a restraining order
- Pay restitution to compensate the victim for any direct costs of the criminal activity, such as medical bills, counseling, or moving expenses
- Pay any court or investigation costs
- Attend sex offender counseling or drug/alcohol rehabilitation
- Probation/Community Control
- Community Service
There are significant differences in the direct penalties for an indecent exposure (public indecency) conviction under Ohio Code § 2907.09. These penalties range from a slap on the wrist to life-changing felony charges with designation as an Ohio sexual offender. Arguing for sentencing mitigation and correctly interpreting the sentencing language of the public indecency statute is essential for protecting the rights of sex crimes’ defendants in Columbus.
6. The Indirect Penalties of an Ohio Indecent Exposure Conviction
The penalties for a misdemeanor sex offense are less far-reaching than those for a felony-level offense. Columbus defendants convicted of felony-level public indecency are subject to certain collateral restrictions applicable to Ohio felons in addition to the direct penalties associated with an Ohio sex offense conviction. These collateral penalties include:
- Potential loss of firearm rights
- Immigration consequences
- Travel restrictions
- Loss of/Inability to obtain certain professional licenses
- Loss of/Inability to obtain public employment, such as a police officer, town clerk, firefighter
- Loss of/Ineligibility for certain public benefits including financial and housing benefits
- Family law and domestic relations consequences
- Difficulty obtaining employment
- Temporary loss of voting rights
The most common unanticipated consequences of an Ohio sex offense conviction, as opposed to a traditional Ohio felony, arise from designation as an Ohio sex offender and registration on the Ohio Sex Offender Registry. These include:
- State, city, and local residency restrictions such as inability to live within a certain range of a school zone
- Public access to personal information such as your name, offense, and address
- Employment restrictions
- Mandatory law enforcement check-ins and registration of private information such as phone numbers, screen names, website and game handles, and email searchable by law enforcement officials
- Difficulty attending Ohio colleges and obtaining financial aid
- Potential loss of child custody and inability to foster/adopt
The only way to avoid the potential direct and collateral consequences of an Ohio public indecency conviction is to avoid conviction by presenting a strong defense to Columbus indecent exposure charges.
7. Common Defenses to Indecent Exposure Charges Used by Our Columbus Indecent Exposure Lawyers
Columbus prosecutors are strictly bound by the language and elements of the Ohio public indecency statute. The strongest defenses are often those that negate, disprove, or raise a reasonable doubt as to an essential element of indecent exposure in Columbus. They include:
- Marriage: Marriage is a complete defense to incident exposure if the victim is a minor, but the marriage must be valid, and the parties must not be separated or divorcing. Ohio’s new marriage age law prohibits marriage of those under the age of 18 but provides for certain exceptions if one of the parties is 17. Valid out-of-state marriages to a minor, provided the marriage is not against public policy, may be recognized and used as a potential defense to public indecency charges against a minor.
- Victim is Member of Your Household: Ohio law recognizes that persons should be free to engage in certain activities within the privacy of their homes and that voluntary household members (excluding minors) must accept these natural freedoms. As such, proving the victim is an adult member of your household is a complete defense to indecent exposure charges in Columbus. Household members typically include any dependents claimed in a tax year, family members (including in-laws and step-families) living in the household at least part of the year, or a non-family member who lives in your home nearly all year (his/her domicile).
- Conduct Does Not Qualify as Indecent: Kissing, mooning, and toplessness do not qualify as indecent exposure in Ohio without additional gestures or nefarious intent. Just because the victim found the conduct indecent doesn’t mean you’re subject to Ohio indecent exposure charges.
- Victim Not in Physical Proximity/Victim Not Affronted: Proving that the victim was not in the offender’s physical proximity at the time of the offense is a complete defense to public indecency charges. Further, evidence that the victim consented to the exposure and was not affronted by the same is also a complete defense to public indecency charges against adult victims. Whether the victim was in the offender’s physical proximity is generally determined by the facts of each case.
Additional procedural, evidentiary, and constitutional defenses may exist to Columbus indecent exposure charges. Even if the defensive evidence is not enough to defeat public indecency charges, it may be enough to convince the judge to impose a minimum sentence, keep you off the sex offender’s registry, and otherwise mitigate the penalties for indecent exposure charges in Ohio.
8. FAQs Answered by Columbus Indecent Exposure Defense Attorneys
The following are answers to some of the most common questions our experienced Columbus indecent exposure criminal defense lawyers are asked about Ohio public indecency charges under § 2907.09.
- What is indecent exposure in Ohio?
Indecent exposure is a sex crime criminalized by Ohio Code § 2907.09. It generally criminalizes exposing one’s private parts or engaging in actual or apparent masturbation or sexual conduct in view of someone who would be offended thereby. The victim must not be an adult member of your household, but he/she may be a minor member of your household under certain circumstances.
- What is public indecency in Ohio?
Public indecency is the same as indecent exposure in Ohio. Ohio Code § 2907.09 is titled “Public Indecency,” and it defines and criminalizes various types of indecent exposure.
- Is exposing yourself in public a felony?
While rare, exposing yourself in public may be a felony in the fifth degree if you are not a first-time offender and/or you recklessly or knowingly engaged in conduct prohibited by Ohio Code § 2907.09 when the victim was under the age of 18. If you’ve never been convicted of indecent exposure before and you don’t otherwise qualify for felony-level penalties, public indecency is a misdemeanor in Columbus.
- Is mooning considered to be indecent exposure?
Generally not. The buttock is not considered one’s genitals for purposes of indecent exposure under Ohio Code § 2907.09. However, showing one’s anus or mimicking any type of anal sexual gesture may be considered apparent masturbation or sexual conduct in Ohio sufficient to sustain public indecency charges.
- Is it illegal to skinny dip in your backyard?
It depends on whether any exposure is reckless and you’re in the physical proximity of a non-member of your household who does not consent to the exposure. Skinny-dipping without care that your neighbors can clearly see may be indecent exposure if you’re in their physical proximity at the time. Skinny-dipping when you have houseguests who do not consent to the exposure or a minor is present may also be considered indecent exposure in Ohio. However, skinny-dipping with another consenting adult when there is a substantial distance between your home and your neighbors is likely not considered public indecency in Ohio.
- How do you prove indecent exposure?
An affronted victim typically files a public indecency report with the Columbus police department, and investigations often begin with the victim’s sworn testimony. Police will attempt to get the defendant’s testimony to corroborate the victim’s testimony or obtain evidence, and many defendants mistakenly give police the evidence they need. Additional evidence used to prove public indecency charges includes photograph or video surveillance evidence or when the police witness the exposure when responding to a report of public indecency.
- Are there ways to defend against indecent exposure charges?
Yes. There are multiple defenses to indecent exposure charges, including:
- The victim is your spouse or adult member of your household
- The exposure was not knowing or reckless
- The victim was not in your physical proximity at the time of the exposure
- The exposure did not qualify under one of the four categories of conduct criminalized by Ohio Code § 2907.09
An experienced public indecency defense lawyer may also raise certain constitutional, evidentiary, or procedural defenses to indecent exposure charges in Columbus.
- How can a Columbus indecent exposure defense lawyer help?
In addition to both raising any applicable defenses to Columbus indecent exposure charges and/or fighting to mitigate your sentence, hiring an experienced Ohio public indecency defense attorney is essential during indecent exposure investigations. Prosecutors are required to prove the defendant knew or should have known the conduct was likely in view of and an affront to a victim. Police often obtain this evidence by sneakily questioning the defendant or when the defendant willingly gives certain testimony. A qualified Columbus indecent exposure and sex crimes defense lawyer can help protect your Fifth Amendment right to silence, which often prevents police from obtaining information essential to bring public indecency charges in Ohio.
9. Columbus Sexual Assault and Sex Crimes Resources
If you or a loved one is the victim of indecent exposure, consider contacting the following advocacy groups to discuss your claims, file a report, and/or ensure your safety. For certain offenders, indecent exposure to minors or when the offender and victim have a substantial age gap are precursors to more serious sexual deviance. Reporting potential claims of indecent exposure now and taking any necessary precautions, including moving out of a home, with the help of the following non-profits may protect you from becoming the victim of a more serious sex crime:
- Cap4Kids Columbus – Resources for children and their families after in-home indecent exposure or claims involving relatives.
- Columbus Housing Authority – A good starting point for resources about your rights as a renter or help moving due to indecent exposure.
- The Ohio Health Sexual Assault Response Network – 24hr hotline and response team for sex crime victims in Columbus and central Ohio, including victims of indecent exposure.
- RAINN – The National Sex Assault Hotline – 1-800-656-4673
- RACES –Advocacy, education, and counseling services for sexual assault
The Ohio public indecency statute is confusing, especially because it may criminalize private conduct and conduct that doesn’t involve nudity at all. For questions about the legality of certain conduct or to discuss a specific indecent exposure case, contact the experienced public indecency defense attorneys the Joslyn Law Firm for a free sex crimes defense consultation and case review online or at (614) 444-1900.