Under Arizona Law, and per A.R.S §13-1402, the charge of “Indecent Exposure” is committed when a person exposes his or her genitals or anus, or a female exposes the areola or nipple of her breast (not including when breastfeeding), and 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.
Watch this short video where David explains Indecent Exposure:
The key to the statute is whether a person is “reckless” and whether the other person reasonably would be “offended.” A person cannot allege Indecent Exposure when they walk into a locker room, and see naked people inside, and claim that is offends you. Obviously, any “reasonable person” would expect to see nudity in a locker room.
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Possible Punishment for Indecent Exposure
The range of punishment for a class one (1) misdemeanor for Indecent Exposure is probation with anywhere from zero (0) days in jail up to six (6) months in jail, and a fine of up to $2,500.00 plus an additional 84% surcharge, and probation up to three (3) years (which can include classes and counseling).
- Indecent Exposure is a class one (1) misdemeanor if the person who witnessed the exposure was fifteen (15) years of age or older.
- If the person who witnessed the exposure was under fifteen (15), then this crime can be charged as a class six (6) felony.
- For a first offense class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail, or prison of four (4) months to two (2) years of incarceration.
- If the person has one (1) allegeable historical prior felony conviction, then the “prison only” range is nine (9) months to two and three quarters (2.75) years in prison.
- If the person has two (2) allegeable historical prior felony convictions, then the “prison only” range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
Additionally, a defendant who is convicted of a felony violation of this law, and who has two or more historical prior felony convictions for a violation of this section or section ARS 13-1403 (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 of minimum six (6) years incarceration, presumptive ten (10) years, and maximum fifteen (15) years incarceration.
Possible Defenses for Indecent Exposure
The key to a successful defense to an Indecent Exposure charge is demonstrating that a reasonable person who saw the defendant’s exposure would not be offended or alarmed. For example, most cases involving Indecent Exposure involve adult bookstores, and we would argue that a reasonable witness in the bookstore would not be shocked to see this type of behavior because of the nature of the activities and merchandise that are present in those stores. In addition, the first part of the statute requires the defendant to be “reckless” as to whether another person is watching and could be offended. If the defendant is attempting to hide his actions, such as in a dark corner, then we would argue that he is not being reckless; he was trying to limit other people seeing him.
Thus, in the situation where an undercover officer peaked around the corner into an individual video booth at the adult bookstore or in a parked car in the city park, and caught the defendant exposing himself, the defendant was not being reckless because no one would have seen unless they were looking to catch someone in the act. In other words, the accused may have been very cautious, but the officer purposefully snuck up on them hoping to see an exposure that would fall under the statute. At DM Cantor, we have successfully argued to judges that defendants were not “reckless”, and that the officers were not acting as “reasonable persons”.
One strong defense tactic often used is the “denial of right to Counsel.” This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; etc..
Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Arizona, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements.
Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Indecent Exposure lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
Be sure to review our Indecent Exposure case victories and compare them with other lawyers in Phoenix.
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