Utah Code 76-9-702 – Defense Strategy in Lewdness Cases
For the defense, key elements of a successful strategy will often focus on the intent and knowledge elements of a charge of lewdness under Utah law. Depending on the circumstances of the alleged offense and the prior history of the person charged, the crime can be filed as either a misdemeanor or felony charge. Either way, the case should be taken seriously.
Elements of the Charge – Physical Conduct
Conduct that can support a charge of lewdness under Utah law will most commonly include sexual activity or exposure of body parts generally considered to be private. The statute includes a catchall provision for “any other act of lewdness.” Charges under this catchall are much less common that the more specific elements of intercourse, sodomy, or masturbation.
An example of prosecutors attempting to use the “any other act” provision is found in State v. Bagnes, 2014 UT 4. The Utah Supreme Court in Bagnes ultimately held that the defendant, an adult who was wearing a toddler-sized diaper, did not commit “any other act of lewdness” when he exposed the diaper. (Note that Bagnes was filed under Utah Code section 76-9-702.5, lewdness involving a child, because the individuals present were under the age of 14.)
Mental State Elements – Intent and Knowledge
Simply performing one of the listed acts is not, by itself, sufficient to support a conviction. The prosecution must also show that the conduct was committed:
- under circumstances or conditions which the person charged “should know will likely cause affront or alarm;” or
- in a “public place.”
The element of “should know” creates a gray area that may serve as the basis for a successful defense strategy. An example of such a defense is found in the case of Salt Lake City v. Roberts, 2000 Utah Ct. App 201, 2002 Utah 30, and 2003 Utah App 271.
The Roberts opinions centered on the issue of whether activity occurring at night, inside a car,, in the back of a parking lot should be treated as occurring in public, or in a place open to public view.
Penalties, Enhancements, and Registration
A first-time offense under section 76-9-702 is normally filed as a class B misdemeanor, punishable by up to 180 days in jail. If the offense is committed in the presence of a child (under 14 years of age) the charge can start as a class A misdemeanor under section 702.5.
Charges under either section 702 or 702.5 can be enhanced to the felony level if the person charged is a sex offender (as defined in section 77-27-21.7) or based on prior lewdness convictions. Enhancement to the felony level can also be supported by evidence that the offense was committed while trespassing in a “sex-designated changing room” or while “loitering in a privacy space” as defined under the Utah Code. (These definitions are complicated and should be considered in detail as they may or may not relate to a specific case.)
Note that a single conviction for lewdness involving a child will trigger sex offender registration requirements. Ordinary lewdness does not immediately require registration, but will if the person is convicted four or more times.
Public Urination
Note that for many years, an act of public urination was punishable as misdemeanor “lewdness” under Utah law. Section 76-9-702.3. The legislature has since enacted section 76-9-702.3 which establishes public urination as an infraction.