"Lewd Conduct" & The Entrapment Trap
You're strolling out of the mall at closing time when the guy of your dreams starts cruising you big time. I mean, you pinch yourself to make sure you're not just daydreaming again at the A&F mural. But this hottie's for real. He motions to follow him into the bathroom. You're tired, and not exactly all fixed-up, and a quite a bit intimidated. But helpless to resist.
When you arrive at the urinal, he asks if you'd like to "jack each other off." "Well," you reply, "gee, um, if you insist, hey, sure, why not!" He suggests that you show him yours first. All too gladly, you do. Then he pulls out his…handcuffs? You quickly deduce that the cuffs aren't part of the fun and games. Your prince is really an undercover vice cop…and you're off to jail.
At the station, he types up a statement form and hands it to you to sign. The statement reads that you propositioned him…and then began masturbating in the middle of the restroom. "I'm not signing this. It's a total lie," you rightly insist. But the cop threatens to go tell the story (his version of it, anyway) to your family and your employer, and to stick your picture in the newspaper. Scared and alone, you acquiesce and sign the form.
Next thing you know, you're charged with lewd conduct and indecent exposure-charges that, if you're convicted of them, could land you in jail for up to two years. Worse still, you'd have to register as a sex offender for the rest of your life.
Sound too awful to be true? Not in America, you say? Think again. As a gay defense attorney with a primarily gay clientele, people approach me constantly with these sorts of horror stories. Police departments routinely "gay-bait" by sending their most handsome undercovers to seduce us into pulling down our pants. Then they play on our fear and shame to coerce false confessions. Prosecutors often charge serious crimes that carry draconian consequences.
Having confronted these practices as both a prosecutor and a defense lawyer, I believe they represent a political assault on our community. Studies have shown that the overwhelming number of lewd conduct arrests involve gay men. Studies also show that police target gay men in the tactics and locations of their sting operations. Gay men disproportionately get arrested for activities which, if done by heterosexual couples or even by two women, would not result in arrest. In the law, we call this problem "discriminatory enforcement."
Political and legal action have brought about reforms in some cities and police agencies. In West Hollywood, for example, community outrage with the Sheriff's Department reached a boiling in the early 90s. Deputies raided our bars, entrapped us into lewd conduct arrests, mistreated us in jail, and in 1991 fired Bruce Boland, one of Department's only openly gay officers. In November 1992, West Hollywood voters narrowly defeated a ballot measure to terminate the Sheriff's Department's lucrative contract to police the city.
The Sheriffs got the message. They began recruiting from the gay community, and several openly gay deputies now serve at the West Hollywood station. The Department also started providing its deputies with county-wide cultural awareness training as to gay and lesbian issues. The harassment in WeHo mostly stopped. And after his election in 1998, Sheriff Lee Baca added "homophobia" to the Department's core-values statement. He vowed the Department would "stand against racism, sexism, anti-Semitism, homophobia and bigotry in all its forms."
In many cities, however, we lack the political clout to affect these sorts of impressive reforms. And police continue to use surveillance, sting operations and deceptive tactics to bait and bust gay men. Lawyers can help fight lewd conduct charges, frequently with great success. However, one's best option is to avoid ever falling into this trap. Thus you should be aware of three key things: (1) What sort of "lewd conduct" the law prohibits, (2) How to avoid getting busted for it, and (3) What to do if you are ever detained by the police.
What Exactly is "Lewd Conduct"?
Generally, we use the term to refer to three types of situations: (1) "lewd and dissolute conduct," (2) solicitation to engage in lewd conduct, and (3) indecent exposure (Penal Code 314). California law prohibits all three.
Lewd Conduct. Penal Code §647(a) and the case law define "lewd" and "dissolute" as "the touching of the genitals, buttocks or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended." To be illegal, it must occur in a public place, or any place open to the public or exposed to public view. A "public place" includes, among other things, a movie booth in an adult bookstore, a public restroom toilet stall (when it's partially visible from the outside), and a car parked on a public street.
Solicitation for lewd conduct. The law defines "solicit" as "to lure on, to seek to induce, or try to obtain." A more simple definition is "to invite." Suppose, for example, you're out cruising. You invite someone to go with you to the park and do "lewd" acts. Technically, the mere invitation puts you in violation of the statute. If the person you invite happens to be an undercover cop, you'll probably be joining him not in the park, but in the squad car. Mind you, it's only "criminal" if you solicit him to do the lewd acts in public. If you invite him for hours of sex in the privacy of your home bedroom, curtains shut, that's not illegal.
Section (d) of §647 makes it illegal to loiter a public restroom for the purpose of engaging in or soliciting lewd conduct. Police sometimes arrest people just for looking camp, or for appearing as though they're cruising, while in a public restroom. The cops know it's difficult to prove exactly what someone was up to in the bathroom. So they typically use tricks and intimidation to induce the people into "confessing" that they were hanging out in the john looking to hook-up.
Indecent Exposure. Under Penal Code 314, one commits this crime by stripping nude or exposing genitals in public, or any place where others are present to be offended. But it's only a crime if done for the purpose of arousing the exhibitioner, or arousing an audience, or insulting or offending others. Prosecutors often tack on this charge to a lewd conduct case. Not only does it add to the total penalty, it requires sex registration for life.
What To Do…and Not To Do
Remember that even if your conduct does not meet these statutory definitions, police will often embellish their stories to build cases in court. But you can take common-sense measures to avoid these pitfalls. First, pay attention to your locale. Generally, the more conservative the community, the more likely the police will take to gay-baiting operations. You're in greater danger, for example, in Glendale or Newport than in WeHo or NoHo. Second, avoid cruising or getting physical in the two places that enforcement operations most frequently target: bathrooms and parks. Third, use discretion in responding to cruisy strangers, especially in places like shopping mall bathrooms or Griffith Park. You might get very luck if that hottie's genuine. Or be very sorry if…
Should you ever get stopped, questioned, detained or arrested for one of these offenses, remember three critical things. First, shut up. No matter what the cop promises or threatens to get you to make a statement, don't. Be polite. But tell him you won't discuss the matter without a criminal lawyer. If you're in custody, the cop has to cut off any questioning at that point. If you're not in custody, you still have no obligation to speak with the police, other than to provide your name and identification. Second, seek the advice of a lawyer, preferably someone with experience defending against lewd conduct cases. Most lewd conduct charges can be reduced to lesser offenses, dismissed, or defeated at a jury trial.
Finally, whatever you do, never plead guilty to a lewd conduct or indecent exposure charge. Never! Court-imposed penalties aside, the conviction can mar you the rest of your life. You may have to register as a sex offender. You may be precluded from obtaining a professional license (such as a nursing or real estate license, or a teaching credential). And if you're not a citizen, you could face immigration consequences such as deportation and denial of the opportunity to naturalize. It's almost always better to fight the case.
A Beverly Hills defense lawyer and former L.A. prosecutor, Neil Shouse deals extensively with lewd conduct cases.