Under Arizona laws, per A.R.S §13-1403, “Public Sexual Indecency” occurs when a person “intentionally” or “knowingly” engages in an act of sexual contact, oral sexual contact, sexual intercourse, or bestiality (an act involving contact between a person’s mouth, vulva or genitals and the anus or genitals of an animal) while another person is present, and the defendant is “reckless” about whether the other person, as a reasonable person, would be offended or alarmed by the act.
Watch this short video where David explains Public Sexual Indecency:
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Possible Punishment for Public Sexual Indecency
The possible punishments for public sexual indecency can vary due to who witnessed the act. The range of punishment for a class one (1) misdemeanor 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 84% surcharge, and probation up to three (3) years (which can include classes and counseling). Other punishments include the following:
- If the other person who witnessed the sex act is fifteen or older (15), the crime is charged as a class one (1) misdemeanor.
- If the person who witnessed the sex act is under fifteen (15), then the crime can be charged as a class five (5) felony.
- For a first offense class five (5) felony, punishment can be probation with zero (0) days up to one (1) year in jail, or prison of six (6) months to two and one half (2.5) years in custody.
- If the person has one (1) historical allegeable prior felony conviction, then the “prison only” range is one (1) to three and three quarters (3.75) years of incarceration.
- If the person has two (2) historical allegeable prior felony convictions then the “prison only” range is three (3) years to seven and one half (7.5) years of incarceration.
Possible Defenses for Public Sexual Indecency
The key to a successful defense to a Public Sexual Indecency charge is demonstrating that a reasonable person who saw the defendant’s actions would not be offended or alarmed. For example, most cases involving Public Sexual Indecency 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 engaged in these activities, 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 act 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”.
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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.
In addition, the “denial of right to Counsel” is another common defense which is often raised. 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..
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 Public Indecency lawyer to defend you who has knowledge of all the possible defenses to assert in your case. Before speaking with other lawyers, check out our Public Sexual Indecency victories page.
If you are looking for the best legal defense, it is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also David Michael Cantor is a Board Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®. For a Free Initial Consultation, call us at 602-307-0808 or fill out the request form below.