Defending Against A Colorado Indecent Exposure Charge 18-7-302 CRS
By H. Michael Steinberg – Colorado Sex Crimes Criminal Defense Lawyer – Attorney
Defending Against A Colorado Indecent Exposure Charge 18-7-302 CRS
Defending Against A Colorado Indecent Exposure Charge 18-7-302 CRS – Indecent exposure is one of those Colorado charges that may not seem very serious at first – but trust me – it is. A conviction for what may seem like a childish prank, can have serious, lifetime consequences.
As with all Colorado criminal charges – you must always start with – and fully understand – the law. By reading the law – over and over – to understand the charge against you, the fear that is the result of lack of understanding – changes to fighting the charge.
What follows is the Colorado statute that creates the crime of Indecent Exposure – 18-7-302.
§ 18-7-302. Indecent Exposure
(1) A person commits indecent exposure:
(a) If he or she knowingly exposes his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person;
(b) If he or she knowingly performs an act of masturbation in a manner which exposes the act to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
(2) (b) Indecent exposure is a class 1 misdemeanor.
…
(4) Indecent exposure is a class 6 felony if the violation is committed subsequent to two prior convictions of a violation of this section or of a violation of a comparable offense in any other state or in the United States, or of a violation of a comparable municipal ordinance.
(5) For purposes of this section, “masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own genitals or pubic area for the purpose of sexual gratification or arousal of the person, regardless of whether the genitals or pubic area is exposed or covered.
The elements of the crime of indecent exposure are not satisfied simply by proof a Defendant was naked. A person must do something that would make his or her genitals visible to another person.
The Colorado Indecent Exposure law 18-7-302 is often confused with the Colorado Public Indecency law – 18-7-301. What follows is the Colorado Public Indecency law which is included throughout this article, not only for comparison purposes, but as possibly the only alternative to a conviction for Indecent Exposure. The laws are very similar.
While a conviction for either of these crimes is serious – a permanent conviction for Indecent Exposure is much, much more serious.
§ 18-7-301. P,ublic Indecency
(1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency:
(a) An act of sexual intercourse; or
…
(c) A lewd exposure of an intimate part as defined by section 18-3-401(2) of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person; or
(d) A lewd fondling or caress of the body of another person; or
(e) A knowing exposure of the person’s genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
(2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), public indecency is a class 1 petty offense.
(b) Public indecency as described in paragraph (e) of subsection (1) of this section is a class 1 misdemeanor if the violation is committed subsequent to a conviction for a violation of paragraph (e) of subsection (1) of this section or for a violation of a comparable offense in any other state or in the United States, or for a violation of a comparable municipal ordinance.
What Are The Possible Sentences For The Crimes Of Public Indecency And Indecent Exposure?
- Public Indecency: A Class 1 Petty Offense punishable by up to 6 months imprisonment and up to $500 in fines. A Class 1 Misdemeanor if committed with a prior knowing genital exposure-related conviction punishable by up 18 months imprisonment and up to $5,000 in fines.
- Indecent Exposure: A Class 1 Misdemeanor punishable by up 18 months imprisonment and up to $5,000 in fines. – If two prior convictions – a Class 6 Felony punishable by up to 18 months imprisonment with a mandatory one year parole and up to $100,000 in fines.
To Understand Colorado Crimes It Helps To Break Those Charges Down Into Their Component Elements
The single best way to analyze Colorado crimes is to break those crimes into their elements. The Colorado Criminal Jury Instructions do this nicely.
For the crime of indecent exposure there are two versions – two methods of committing the crime:
The TWO Ways To Commit The Crime Of Indecent Exposure In Colorado
Indecent Exposure Elementals
Indecent Exposure (Knowing Exposure)
The elements of the crime of indecent exposure (knowing exposure) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. exposed his [her] genitals to the view of any person,
5. under circumstances in which such conduct was likely to cause affront or alarm to the other person, ***
6. with the intent to arouse or satisfy the sexual desire of any person.
[*** It is important to note that while the prosecution must prove that the accused did something that made his or her genitals visible to another person, they do NOT have to prove that the victim was actually “subjectively affronted or alarmed by that exposure.]
Indecent Exposure (Masturbation)
The elements of the crime of indecent exposure (masturbation) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. performed an act of masturbation in a manner which exposed the act to the view of any person,
5. under circumstances in which such conduct was likely to cause affront or alarm to the other person.
There Are FOUR Ways To Commit The Crime Of Public Indecency In Colorado
Public Indecency Elementals
Public Indecency (Lewd Exposure)
The elements of the crime of public indecency (lewd exposure) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. in a public place or where the conduct may reasonably have been expected to be viewed by members of the public,
4. performed a lewd exposure of an intimate part of the body, other than the genitals,
5. with intent to arouse or to satisfy the sexual desire of any person.
Public Indecency (Sexual Intercourse)
The elements of the crime of public indecency (sexual intercourse) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. performed an act of sexual intercourse,
4. in a public place or where the conduct may reasonably have been expected to be viewed by members of the public.
Public Indecency (Lewd Fondling or Caress)
The elements of the crime of public indecency (lewd fondling or caress) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. in a public place or where the conduct may reasonably have been expected to be viewed by members of the public,
4. performed a lewd fondling or caress of the body of another person.
Public Indecency (Knowing Exposure)
The elements of the crime of public indecency (knowing exposure) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. in a public place or where the conduct might reasonably have been expected to be viewed by members of the public,
4. knowingly,
5. exposed his [her] genitals to the view of a person,
6. under circumstances in which such conduct was likely to cause affront or alarm to the other person.
The Need To Understand The Key Differences Between Indecent Exposure And Public Indecency In Colorado – Sex Offender Registration
Colorado Sex Offender Registration And Indecent Exposure – CRS 16-22-103
A Conviction For Indecent Exposure in Colorado Will Result In A Colorado Sexual Offender Label
Under Colorado law Indecent Exposure is a sex crime. CRS Section 18-3-411(1), states that an unlawful sexual offense includes indecent exposure, as described in the Colorado Indecent Exposure statute – CRS Section 18-7-302. What that means is this: a conviction for Indecent Exposure requires registration as a sex offender, (but see escape hatch provision below)
A failure to register as a sex offender, is not only a violation of probation, it is an entirely new crime – a class 1 misdemeanor
That is not true under Colorado’s Public Indecency laws.
A Way Out Of Sex Offender Registration For A Conviction For Indecent Exposure
There is a kind of legal “escape hatch” provision in the Colorado Sex Offender Registration Act that may provide relief from the requirement of sex offender registration, if you qualify.
Here is the relevant section of the law:
Sex Offender Registration – Required – Applicability – Exception, C.R.S. 16-22-103
….
(5) (a) Notwithstanding any provision of this article to the contrary, if, pursuant to a motion filed by a person described in this subsection (5) or on its own motion, a court determines that the registration requirement specified in this section would be unfairly punitive and that exempting the person from the registration requirement would not pose a significant risk to the community, the court, upon consideration of the totality of the circumstances, may exempt the person from the registration requirements imposed pursuant to this section if:
(I) The person was younger than eighteen years of age at the time of the commission of the offense; and
(II) The person has not been previously charged with unlawful sexual behavior; and
(III) The offense, as charged in the first petition filed with the court, is a first offense of either misdemeanor unlawful sexual contact, as described in section 18-3-404, C.R.S., or indecent exposure, as described in section 18-7-302, C.R.S.; and
(IV) The person has received a sex offender evaluation that conforms with the standards developed pursuant to section 16-11.7-103(4) (i), from an evaluator who meets the standards established by the sex offender management board, and the evaluator recommends exempting the person from the registration requirements based upon the best interests of that person and the community; and
(V) The court makes written findings of fact specifying the grounds for granting such exemption.
Establishing A Defense To A Colorado Indecent Exposure Charge – 18-7-302
Law enforcement often charge the crime of indecent exposure because they do not understand the differences between indecent exposure and public indecency. To be convicted of indecent exposure a jury must believe beyond a reasonable that the person exposing themselves was doing so purposefully and with intent to arouse or to satisfy the sexual desire of any person.
Compare the Colorado Public Indecency elements:
“exposing his [her] genitals to the view of a person – under circumstances in which such conduct was likely to cause affront or alarm to the other person.”
Put another way each and every element of the crime of Indecent Exposure must be proven beyond a reasonable doubt. The most difficult element to prove – the one element that escalates the crime to a “sex offense” -requiring sex offender treatment and registration as a Colorado sex offender – is proof that the accused committed the exposure “intentionally” with the intent to arouse or to satisfy the sexual desire of any person.
While there is some confusion as regards Indecent Exposure in Colorado, defending against these cases remains consistent. What follows are some of the ways to defend against the charge of Indecent Exposure:
- – The primary defense against a Colorado charge of Indecent Exposure is to attack the District Attorney’s case on the issue of whether the prosecutor has proven beyond a reasonable doubt that there was a sexual intent behind the conduct of the Defendant – the behaviors observed by the witness(es) in the case.
- – Along those same lines – the second line of attack would be on the accuracy – or lack of accuracy (unreliability) of the eye-witness testimony. Classic attacks on all forms of eyewitness testimony include – the time of day or night of the observations, the distance to the scene of the alleged conduct, eyesight, distractions, levels of intoxication, distractions, time of observations and similar lines of inquiry.
- – Attacking the location of the crime as evidence of lack of intent of behind the act of exposing one’s genitals. Therefore establishing that the exposure was accidental (such as on a beach, deep in the forest, or in one’s own back yard, etc.) helps to establish the act itself was not intentional.
- – The absence of any “victims” of the exposure – that is, establishing the fact that never alleged victims, they were never intended to “see” anything. An example might be in a crowded hotel, at the beach or in a college dorm.
2010 – Massive Changes To Colorado’s Indecent Exposure And Public Indecency Laws
Finally, it is important to review changes, made not so long ago by the Colorado State Legislature, to the Indecent Exposure and Public Indecency Laws. What follows is a summary:
In 2010 Colorado House Bill 10-1334 changed the criminal statutes concerning public indecency and indecent exposure in the following ways. The new (at that time) law:
• moved masturbation from the statutes governing public indecency to the statutes governing indecent exposure;
• moved the knowing exposure of a person’s genitals with the purpose of causing affront or alarm from the statutes governing indecent exposure to the statutes governing public indecency;
• made a subsequent offense of exposing a person’s genitals with the purpose of causing affront or alarm a class 1 misdemeanor and unlawful sexual behavior under the Colorado Sex Offender Registration Act; and
• made the exposure of a person’s genitals with the intent to arouse or satisfy the sexual desire of any person part of the indecent exposure statute.
Defending Against A Colorado Indecent Exposure Charge 18-7-302 CRS
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