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Indecent Exposure: The Naked Truth

Indecent Exposure is one of the more unusual crimes in the prosecutor’s arsenal, but in the age of #MeToo and Donald Trump, it is increasingly being filed along with more serious charges.  
Defined by RCW 9A.88.010
(1) A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.
(2)(a) Except as provided in (b) and (c) of this subsection, indecent exposure is a misdemeanor.
(b) Indecent exposure is a gross misdemeanor on the first offense if the person exposes himself or herself to a person under the age of fourteen years.
(c) Indecent exposure is a class C felony if the person has previously been convicted under this section or of a sex offense as defined in RCW 9.94A.030.

Yet, in  State v. Eisenshank the Washington Supreme Court examined the elements of indecent exposure and concluded that  the essential elements of indecent exposure do not include any distressing emotion experienced by the person in whose presence the exposure occurred

The offensive exhibition in the presence of another … [is] not necessarily an assault or a personal offense against the individual in whose presence the exhibition takes place. Creation of a sense of shame or other distressing emotion is not an essential element of the crime. It is sufficient if the acts are such that the common sense of society would regard the specific act performed as indecent and improper.

Thus, “the crime [of indecent exposure] is completed when the inappropriate exhibition takes place in the presence of another,  without any consideration of that person’s response.”  This is where crazy abuse of the statute comes into play. 

Take the case of State v. Vars, 237 P. 3d 378 – Wash: Court of Appeals, 1st Div. 2010.  Mr. Vars was spotted jogging naked in a Kirkland neighborhood at 2:00 a.m, one morning in May of 2008.  No one actually saw his genitalia and he didn’t confront anyone while naked, but two witness called 911 because they saw his unclothed buttocks as he jogged by.  

The Court held that, “If the subjective experience of the witness is immaterial to guilt, then so too is the witness’s observation of the offender’s genitalia. Simply because RCW 9A.88.010 requires an exposure of genitalia in the presence of another, it does not mean that the other person must observe the defendant’s private parts for an indecent exposure to have occurred. As previously noted, the gravamen of the crime is an intentional and “obscene exposure” in the presence of another that offends society’s sense of “instinctive modesty, human decency, and common propriety.” So long as an obscene exposure takes place when another is present and the offender knew the exposure likely would cause reasonable alarm, the crime has been committed.”

Mr. Vars unusual proclivities aside, it is absurd that someone was convicted of a sex crime on the basis of exposing himself in public, even though nobody actually saw it.  This is especially absurd in the age of Tinder and related websites where participant exposure is a norm.

In Chris’ experience, however, the most likely scenario where someone will be charged with indecent exposure is in the context of the work place or a first date.  It is likely to be charged along with some degree of sexually motivated assault too.  However, sexual activity around schools and playgrounds can also draw the charge (sometimes called something like “indecent conduct” when charged under municipal statute).   With only one exception, everyone Chris has defended charged with this offense has been male.

IF CHARGED WITH INDECENT EXPOSURE OR RELATED OFFENSES 

Aside from the obvious embarrassment this offenses draws, prosecutors demonstrate limited consistency in how they negotiate these cases.  Some jurisdictions, particularly when confronting an individual with limited criminal history, offer a diversion to dismissal of the offense.  Others demand jail time and expensive psychosexual evaluations and treatment.

If you have been charged, expect to be charged, or are currently being investigated for anything resembling indecent exposure, it is important you retain a committed and aggressive attorney who understands the sensitivities of these sorts of crimes as soon as possible.  Failing to do so risks undermining your case and being charged with even more serious offenses.