ARS § 13-1403 – Public Sexual Indecency – Arizona Law & Penalties

ARS § 13-1403 is the Arizona statute that defines the crime of public sexual indecency. You commit this offense when you engage in sexual contact, oral sex, sexual intercourse, or bestiality and do so in the presence of another person with a reckless disregard as to whether the person would be offended.

A violation of this section can result in a felony charge punishable by up to two-and-a-half years in prison.

Examples

• engaging in sexual contact with a partner on a crowded bus,
• performing oral sex on a spouse in a car parked in a school lot while students are present.
• having sex with a partner during the day in the entrance of an alleyway.

Defenses

Criminal defense lawyers use several different legal strategies to defend against charges of public sexual indecency. A few of these include showing that:

• the defendant did not act with recklessness,
• a reasonable person would not be offended by the accused’s conduct, and/or
• the accused was the victim of mistaken identity.

Penalties

A violation of ARS 13-1403 is a Class 1 misdemeanor punishable by custody in jail for up to six months.

If a person commits the offense in front of a minor who is under 15 years of age, then the crime is a Class 5 felony punishable by up to two-and-a-half years in state prison.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1.How does Arizona law define “public sexual indecency”?

People are guilty of public sexual indecency charges when they:

1. engage in sexual contact, oral sexual contact, sexual intercourse, or bestiality,
2. do so while another person is present, and
3. act recklessly as to whether that person would be reasonably offended.[i]

The following definitions apply to this statute:

• “sexual contact” means any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus, or female breast by any part of the body or by any object, or causing a person to engage in such contact.[ii]
• “oral sexual contact” means oral contact with the penis, vulva, or anus.[iii]
• “sexual intercourse” means penetration into the penis, vulva, or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.[iv]
• “bestiality” means engaging in oral sexual contact, sexual contact or sexual intercourse with an animal or causing another person to engage in oral sexual contact, sexual contact, or sexual intercourse with an animal.[v]

According to Arizona law, the questions as to whether a defendant acts with recklessness and whether a reasonable person would be offended by the accused’s sexual act are determined by analyzing the facts of a case.[vi]

Note that public sexual indecency is a different crime than indecent exposure. That crime is outlined in ARS 13-1402.

2. Are there defenses to ARS 13-1403 charges?

Yes. Defendants can contest sexual offenses under this statute with a legal defense/disclaimer. A few common defenses include defendants showing that:

1. they did not act with recklessness.
2. a reasonable person would not have been offended by their sexual activity.
3. they were the victim of mistaken identity.

2.1 No recklessness

Recall that a person is only guilty under this criminal code section if he/she acted with a reckless disregard as to whether a person would be offended by a sexual act. A defense, then, is for the accused to show that he/she did not act with this type of recklessness.

2.2 Acts not reasonably offensive

Also, recall that people are only guilty of violating this law if a reasonable person would have been offended by their actions. Therefore, it is a valid defense for an accused to show that his/her acts were not reasonably offensive.

2.3 Mistaken identity

It is always a defense for a defendant to show that he/she was a victim of mistaken identity. It is quite possible that even a well-meaning victim could have mistakenly identified a person to a police officer (for example, because it was dark out when the alleged crime was committed).

3. What are the penalties?

Sex crimes under this statute are a Class one misdemeanor punishable by up to six months in jail.[vii]

Public sexual indecency in front of a minor under 15 is a Class 5 felony, punishable by up to two-and-a-half years in state prison.[viii]

Note that if a person is convicted of felony public sexual indecency, and he/she has two or more prior felony convictions under this statute, then the presumptive prison term for the offense is 10 years.[ix]

Note, too, that a person convicted of a crime under this law on three or more occasions must

1. register as a sex offender, per ARS 13-3821, and
2. be placed on the Arizona sex offender register.[x]

4. Are there related crimes?

There are three crimes related to public sexual indecency. These are:

1. sexual assault – ARS 13-1406,
2. disorderly conduct – ARS 13-2904, and
3. revenge porn – 13-1425.

4.1 Sexual assault – ARS 13-1406

ARS 13-1406 is the Arizona statute that says a person commits sexual assault when:

1. he/she intentionally and knowingly engages in sexual intercourse or oral sexual contact with another person, and
2. does so without that party’s consent.

A person is guilty of a dangerous crime under this statute if he/she commits the offense and the victim is under 15.

“Sexual intercourse” and “oral sexual contact” have the same definition as under ARS 13-1403.

4.2 Disorderly conduct – ARS 13-2904

Per ARS 13-2904, a person is guilty of disorderly conduct if he/she:

1. engages in fighting, or violent or seriously disruptive behavior,
2. makes unreasonable noise,
3. uses abusive or offensive language or gestures to any person,
4. makes any commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession,
5. refuses to obey a lawful order to disperse, or
6. recklessly handles, displays, or discharges a deadly weapon or dangerous instrument.

As with public sexual indecency, disorderly conduct can lead to either misdemeanor or felony charges depending on the facts of a case.

4.3 Revenge porn – 13-1425

ARS 13-1425 is the Arizona statute that states a person commits the crime of revenge porn when he/she discloses an image of another person and:

1. the person in the image is depicted in a state of nudity or is engaged in specific sexual activities,
2. the depicted person has a reasonable expectation of privacy, and
3. the image is disclosed with the intent to harm, harass, intimidate, threaten, or coerce the depicted person.

Unlike with ARS 13-1403, most violations of this statute are felony offenses.

Legal References:

[i] A.R.S. 13-1403 Subsection A. The language of the code section reads as follows:

A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:

1. An act of sexual contact.

2. An act of oral sexual contact.

3. An act of sexual intercourse.

4. An act of bestiality.

B. A person commits public sexual indecency to a minor if the person intentionally or knowingly engages in any of the acts listed in subsection A of this section and such person is reckless about whether a minor who is under fifteen years of age is present.

C. Public sexual indecency is a class 1 misdemeanor. Public sexual indecency to a minor is a class 5 felony.

D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13-1402 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced to a term of imprisonment as follows:

Mitigated   Minimum     Presumptive Maximum     Aggravated

6 years     8 years     10 years    12 years    15 years

E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.

See also State v. Williams, 209 Ariz. 228 (2004).

[ii] ARS 13-1401A3.

[iii] ARS 13-1401A1.

[iv] ARS 13-1401A4.

[v] ARS 13-1411.

[vi] State v. Whitaker, 164 Ariz. 359 (1990).

[vii] ARS 13-1403C.

[viii] See same.

[ix] ARS 13-1403D.

[x] ARS 13-3821.