Nevada law defines open and gross lewdness as either engaging in sexual activity where the public can observe, or sexually touching another person without consent. Prosecutors can charge the offense as a gross misdemeanor or a category D felony. A conviction requires sex offender registration.
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.
If there is nonconsensual sexual penetration, the prosecutor would instead bring sexual assault (NRS 200.366) charges.
Examples
- 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
NRS 201.210 also states that “the breastfeeding of a child by the mother of the child does not constitute an act of open or gross lewdness.”
Penalties
Violating this section is typically a gross misdemeanor. The sentence includes:
- Up to 364 days in jail 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:
- The defendant has 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
Judges may dismiss the charges if:
- The police entrapped the defendant,
- The defendant was falsely accused, and/or also
- 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?
Violating NRS 201.210 carries sex offender registration and also a jail sentence.
1. What is open or gross lewdness?
Open or gross lewdness’s legal definition is broad. It comprises either of the following circumstances:
- A sexual act in public or in a private place where others could see, or
- A nonconsensual sexual encounter that falls short of rape1
1.1. Sex acts done openly
An NRS 201.210 violation occurs when someone behaves in a sexually explicit way where 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
An NRS 201.210 violation occurs when someone touches someone else in a sexual way but with no penetration, and 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. People convicted of the crime of open or gross lewdness must register as sex offenders.
For gross misdemeanor convictions, defendants 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, defendants are typically classified as Tier II or Tier III sex offenders. They are publicly searchable. Tier II offenders must register for 25 years. Tier III offenders register for life.6
3. What are the penalties under NRS 201.210?
It depends on the defendant’s criminal history:7
| Open or gross lewdness conviction | Nevada punishment |
|---|---|
| First offense if the defendant has no previous sex offense convictions | Gross misdemeanor:
|
| First offense if the defendant has a past sex offense conviction | Category D felony:
|
| Second or subsequent offense | Category D felony:
|
| First time or subsequent offense in the presence of a child under 18 or a disabled person | Category D felony:
|
The penalties for violating NRS 201.210 are less 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). They 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.
Open or gross lewdness can be a gross misdemeanor or a felony under Nevada criminal law.
4. How do I fight the charges?
Which defenses work best in fighting NRS 201.210 charges depend on the circumstances. The following are three common defense strategies to open or gross lewdness charges that criminal lawyers often use:
- Entrapment
- False accusations
- Consent
4.1. Entrapment
When police trick people into committing a crime they 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 flirtatious 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. 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 to the defendant’s acts.
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 baring private body parts such as one’s genitalia whether or not it is sexually motivated – such as flashers. People who expose their genitalia while urinating in public 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, the defendant 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 the defendant meant to do anything shocking or that anyone was disturbed by the behavior.14
If you are facing criminal charges in Clark County or elsewhere in Nevada, you are invited to contact our law firm for legal help.
¿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 California crime of Lewd or Dissolute Conduct in Public | Penal Code 647(a) PC.
Arrested in Colorado? Also see our article on Colorado lewd conduct laws.
Legal References
- NRS 201.210.
- Also see Ranson v. State, 99 Nev. 766, 670 P.2d 574 (1983); see also Young v. State, 109 Nev. 205, 849 P.2d 336 (1993).
- Also see note 1.
- Same; see Fisher v. State (Nev. Ct. App. Feb. 17, 2016).
- Also see NRS 200.366.
- See also note 1; NRS 179D.495; also see Nev. Rev. Stat. 179D.450; see also NRS 179D.097.
- Also see note 1.
- NRS 200.366.
- See also Foster v. State, 116 Nev. 1088, 13 P.3d 61 (2000).
- NRS 179.245; See also In the Matter of Petition of Michael Lorenzo Aragon (2020) 136 Nev. Adv. Op. 75.
- See also NRS 179.255.
- Also see INA 237(a)(2)(A).
- See also note 1.
- Also see Commonwealth of Massachusetts General Laws chapter 272, section 16.