“Open & Gross Lewdness” in Nevada – A Legal Defense Guide (NRS 201.210)

Examples of open and gross lewdness:

• Having sex in a public place, such as a park
• Masturbating on public transportation
• Groping a female breast or behind without the person’s permission

Penalties:

Violating this section is typically a gross misdemeanor. The sentence includes:

• Up to a 364-day jail sentence, and/or
• up to $2,000 in fines, and also
• Sex offender registration

But open and gross lewdness becomes a category D felony if either:

• You have prior sex crime convictions, or
• The lewdness occurred in the presence of a minor or a mentally or physically incapacitated adult

The punishment includes:

• 1 – 4 years in Nevada State Prison,
• Up to $5,000 in fines (at the judge’s discretion), and also
• Sex offender registration

Defenses:

The court may dismiss the charges if:

• The police entrapped you,
• You were falsely accused,
• The activity did not take place in public, and/or
• The victim consented (in cases of sexual touching)

In this article, our Las Vegas criminal defense lawyers discuss:

• 1. What is open or gross lewdness?
• 2. Does it require sex offender registration?
• 3. What are the penalties under NRS 201.210?
• 4. How do I fight the charges?
• 5. Can I get the record of conviction sealed?
• 6. Can I get deported?
• 7. How is indecent exposure different?
• 8. How is Massachusetts law different?

1. What is open or gross lewdness?

Open or gross lewdness’s legal definition is broad. It comprises either of the following circumstances:

1. A sexual act in public or in a private place where others could see, or
2. A nonconsensual sexual encounter that falls short of rape.¹

Note that open and gross lewdness is often charged together with the similar but separate crime of indecent exposure.

• • Open and gross lewdness applies to engaging in sexual activity, while
  • indecent exposure applies to exposing oneself naked in public.

1.1. Sex acts done openly

It is open and gross lewdness when you behave in a sexually explicit way that bystanders can see.

Example: Jason and Sandy go to a bar in the Fiesta. They grope each other in front of the other patrons. After they get home, they have sex in front of an open window. If caught, Jason and Sandy would each face two charges of violating NRS 201.210. One for their sex acts at the bar. And one for their sex acts in front of the open window.

It does not matter in the above example whether anyone saw Jason and Sandy. Nor does it matter if they did not mean to offend anyone. Any sex act done in a place where third parties could see violates NRS 201.210.²

Note that having oral or anal sex in public also violates NRS 201.190. This used to be called the sodomy law.

Also, note that breastfeeding in public does not violate NRS 201.210.³

1.2. Nonconsensual sex acts not amounting to rape

It is considered open and gross lewdness when:

1. you touch another person in a sexual way but with no penetration, and
2. that person does not consent to the touching.⁴

Example: Joshua starts flirting with Susan at a Reno bar. Susan tells him to go away. But Joshua gropes her backside. If caught, Joshua could be charged with the criminal offense of open or gross lewdness. This is because he sexually touched Susan without her consent.

An NRS 201.210 violation differs from sexual assault (rape).  Sexual assault involves penetration. This includes:

• Sexual intercourse,
• Oral sex,
• Anal sex,
• Digital sex (“fingering”), or
• Inserting an object into a bodily orifice in a sexual way.⁵

Since there was no penetration in the above example, Joshua should not be prosecuted for rape.

2. Does it require sex offender registration?

Yes. If you get convicted of the crime of open or gross lewdness, you must register as a sex offender.

• For gross misdemeanor convictions, you are classified as Tier 1 sex offenders. This is not searchable in a public database as long as the victim – if any – is an adult. And the registration period lasts for 15 years.
• For felony convictions, you are typically classified as Tier II or Tier III sex offenders. You are publicly searchable. If you are a Tier II offender, you must register for 25 years. If you are a Tier III offender, you must register for life.⁶

3. What are the penalties under NRS 201.210?

It depends on your criminal history:⁷

Open or gross lewdness conviction	Nevada punishment
First offense if you have no previous sex offense convictions	Gross misdemeanor: Up to 364 days in jail, and/or Up to $2,000 in fines, and Sex offender registration
First offense if you have a past sex offense conviction	Category D felony: One to four (1 – 4) years in prison, and A possible fine of up to $5,000, and Sex offender registration
Second or subsequent offense	Category D felony: One to four (1 – 4) years in prison, and A possible fine of up to $5,000, and Sex offender registration
First time or subsequent offense in the presence of a child under 18 or a disabled person	Category D felony: One to four (1 – 4) years in prison, and A possible fine of up to $5,000, and Sex offender registration

The penalties for open and gross lewdness are less serious than those for rape (non-consensual sexual penetration). Rape is a category A felony carrying life with or without the possibility of parole.⁸

3.1. Plea bargains

It may be possible to get NRS 201.210 criminal charges reduced to a misdemeanor. Examples include

• simple battery (NRS 200.481) or
• disorderly conduct (NRS 203.010).

These offenses carry lesser penalties. And they do not require sex offender registration.

If the defense attorney can show the D.A. that the evidence is too weak to sustain a conviction, the D.A. may dismiss the case.

4. How do I fight the charges?

Which defenses work best in fighting open and gross lewdness charges depends on the circumstances. The following are four common defense strategies that criminal lawyers often use:

1. Entrapment
2. False accusations
3. Not in public
4. Consent

4.1. Entrapment

When police trick you into committing a crime you were not predisposed to commit, it is entrapment. Entrapment is always illegal.⁹

Police often use lewdness laws to arrest gay men. Las Vegas Metro Police set up undercover sting operations in public restrooms and parks. Decoy officers pretend to be gay men out cruising. They oftentimes will act flirtatiously in order to bait unsuspecting men into doing something sexual.

Our Las Vegas Nevada LGBT rights attorneys help fight back in cases of discriminatory policing where “suspects” are targeted based on sexual orientation.

4.2. False accusations

It is not uncommon for people to falsely accuse enemies or ex-partners of breaking the law. Especially sex crimes. Typically, their motivations are anger or revenge.

In these cases, a skilled criminal defense attorney would conduct a thorough investigation of all the relevant sensitive information. Perhaps there is evidence that would impeach the accuser’s credibility. Examples include angry text messages and voicemails.

4.3. Not in public

Consensual sexual activity is legal if it occurs in private. As long as the D.A. cannot prove that any sex acts occurred where the public could see, the charge should be dismissed.

Typical evidence in these cases includes eyewitnesses, surveillance video, and GPS records.

4.4. Consent (in cases of sexual touching)

It is also not uncommon for people to regret their decisions to engage in sexual behavior and then to blame their partner for it. But regret does not reverse consent.

Consequently, in the current socio-political context of #MeToo and Time’s Up, a reasonable person may be more likely to levy accusations of open or gross lewdness. But in a court of law, the D.A. still bears the very high burden of proving guilt beyond a reasonable doubt.

5. Can I get the record of conviction sealed?

Gross misdemeanor convictions of NRS 201.210 may be sealed two (2) years after the criminal case closes. But felony convictions may never be sealed.¹⁰

Note that any lewdness charge that gets dismissed may be sealed right away.¹¹ Learn about how to seal Nevada criminal records.

6. Can I get deported?

Violating NRS 201.210 may be deportable.¹² The most important step for non-citizens facing lewdness charges to take is to retain an experienced attorney. The attorney may be able to get the charge dismissed or reduced to a non-removable offense.

7. How is indecent exposure different?

NRS 201.210 tends to refer to lascivious behavior. In contrast, indecent exposure (NRS 201.220) refers to displaying private body parts such as your genitalia whether or not it is sexually motivated – such as flashers.

If you expose your genitalia while urinating in public, you can face indecent exposure charges as well.

In many cases, prosecutors bring NRS 201.210 charges in conjunction with indecent public exposure charges. And both offenses have identical penalties.¹³

8. How is Massachusetts law different?

In Massachusetts, the crime of open and gross lewdness has an element that Nevada law does not: In Massachusetts, you must have acted in a way to produce alarm or shock, and that at least one person was actually shocked or alarmed.

In Nevada, by contrast, it is not also necessary to show that you meant to do anything shocking or that anyone was disturbed by the behavior.¹⁴

For further help…

If you are facing criminal charges in Clark County or elsewhere in Nevada, you are invited to contact our DUI/criminal law firm for legal help. The law offices of Las Vegas Defense Group are available 24/7.

¿Habla español? Visita nuestra página web en español sobre leyes de Nevada para deshonestidad manifiesta o macroscópica.

Arrested in California? Also see our article on Penal Code 647(a) PC.

Arrested in Colorado? Also see our article on Colorado lewd conduct laws.

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Legal References