Being charged in Washington State with indecent exposure can be a scary proposition, as depending on the circumstances surrounding the offense, it could result in anything from a relatively minor misdemeanor conviction, all the way to a class C felony.
Under RCW 9A.88.010(1), an individual is guilty of “indecent exposure” if he or she intentionally exposes himself or herself – or exposes another person – in an “open and obscene” manner, knowing that such conduct is likely to cause “reasonable affront or alarm” to an observer. Breaking down that definition, there are four elements that a prosecutor will have to prove in order to sustain a charge of indecent exposure:
A person is only guilty of indecent exposure if his or her exposure is intentional. For an individual's conduct to be “intentional,” it must be the individual's conscious objective to engage in that particular conduct. Put another way, the individual must act with the intention that a particular result will occur.
The second element of the crime of indecent exposure is the most obvious – there must be some sort of exposure of a person. Note that this exposure is not limited solely to the actor. An individual can also be charged with indecent exposure if they expose another person, rather than themselves.
3. “Open and obscene”
The third element – that the exposure be “open and obscene” – means that the simple existence of a person's nudity, in whole or in part, is insufficient to rise to the level of indecent exposure. Rather, there must be an “open and obscene” level of exposure to justify charges under the statute.
It is not completely clear what constitutes "open and obscene," as there is no definition of those terms in RCW 9A.88.010. However, the statute does explicitly notes that the act of breastfeeding does not constitute indecent exposure. Since breastfeeding in public could involve a woman openly and intentionally exposing her breast, the fact that the legislature specifically classified breastfeeding as not amounting to indecent exposure presumably means it does not consider that exposure “obscene.”
What about other arguably socially-acceptable exposures? Many visitors to Seattle in the summer time are surprised to see a parade of naked cyclists biking through the Fremont neighborhood during the annual solstice celebration. Are these riders at risk for charges of indecent exposure? Though the statute itself is silent with regard to this specific circumstance, the Seattle police have previously noted in response to such questions about the solstice naked bike ride that “there must be lewd or obscene behavior for an officer to take action.” While it is unclear exactly why the police have not considered that annual event to fall under the umbrella of indecent exposure in the past, it is important to remember that these situations are very fact-specific – there is no guarantee that similar naked bicycling by an individual not a part of an organized event would similarly escape police scrutiny.
4. “Knowing that such conduct is likely to cause reasonable affront or alarm”
The fact-specific nature of the indecent exposure inquiry is highlighted again in the final element of the offense: that the individual being charged with the open and obscene exposure acted “knowing that such conduct is likely to cause reasonable affront or alarm.” A person acts “knowingly” when they are aware that their conduct will cause a particular result. Thus, with a charge of indecent exposure, prosecutors have to show that an individual was aware that their open and obscene exposure was likely to cause reasonable affront or alarm. It does not have to be their intent to cause the affront or alarm – it is sufficient that they were aware it was likely to occur.
Perhaps this explains the lack of charges for the naked Seattle bicyclists – attendees of an annual parade that is widely known for its naked bike riders expect to see a group of unclothed individuals pedaling down the street. They may not be affronted or alarmed in the same way that an unsuspecting person might be if surprised by a lone naked bicyclist while walking to get their morning coffee. Again, an indecent exposure inquiry is extremely dependent on the particular facts of the alleged incident.
Penalties Depend on Circumstances
The penalty for being found guilty of indecent exposure depends on the particular circumstances of the act itself – mainly, whom the exposure was directed towards – and whether the individual doing the exposing has been convicted of indecent exposure or other specific sex offenses before. Usually, according to RCW 9A.88.010(2)(a), indecent exposure is a misdemeanor charge, which is punishable by imprisonment in the county jail for no more than 90 days. Adult offenders can also be fined up to $1,000 in addition to, or in lieu of, jail time.
However, under RCW 9A.88.010(2)(b), indecent exposure rises to a gross misdemeanor on the first offense if a person exposes himself or herself to a person under 14 years old. Conviction for a gross misdemeanor can be punished by imprisonment in the county jail for up to one year, and/or a fine of up to $5,000 for adult offenders, per RCW 9A.20.021(2).
Lastly, if a person has been previously convicted of indecent exposure or one of a list of other specific sex offenses, a subsequent conviction for indecent exposure is a class C felony, which is punishable by imprisonment for up to five years and a $10,000 fine.
“Let My Extensive Experience as a Former Prosecutor Work For You.”
Indecent exposure charges carry serious legal and reputational consequences. If you or a loved one faces charges of indecent exposure, contact the Law Office of Steve Karimi today. Experienced criminal defense attorney Steve Karimi is dedicated to protecting your constitutional rights and he will take all measures necessary to fight for your legal rights and to advocate for your best interests. As a former prosecutor, he understands the potential charges you could face and will use his experience to achieve the best possible resolution for you. To schedule a free and confidential initial consultation, contact the Law Office of Steve Karimi today at 206-660-6200.