17 Feb 2016
When people hear of someone being charged with indecent exposure, an image likely comes to mind of a middle-aged man approaching (usually) a woman, opening his raincoat, and giving the onlooker a frontal view of himself in his birthday suit, perhaps accompanied by a statement, such as “Aha!.” The man is eventually taken into custody by the local police, and in many cases is found to be suffering from one or another mental disorder. While that may happen in some cases, a recent incident in East Austin is probably a more likely scenario. Here’s what happened.
According to the report we read, a man was arrested after someone told the police that he had “exposed himself” in front of a crowd of people. But the arrest affidavit states merely that one woman observed the man “touching himself” behind a car in a parking lot. We should add that when the man was arrested, his pants were unzipped, although that, in and of itself, while embarrassing, is not a crime. In any event, the man has been charged with a class B misdemeanor, indecent exposure. If you think, even assuming a jury finds the woman’s testimony credible, that this is a slam dunk for the prosecutor, think again.
What is Indecent Exposure?
Indecent exposure sounds like a simple charge, but a look at section 21.08 of the Texas Penal Code, which defines the offense, reveals that it can get a bit complicated. The offense requires proof, beyond a reasonable doubt, that the suspect (a) exposes his genitals (or anus), (b) intending to arouse or gratify any person’s sexual desire, and (c) in doing so, is reckless about whether another person who is present might be offended or alarmed by the conduct. That’s quite a mouthful, and if you look at the witness’ statement, it raises a number of issues, including whether the suspect intended to gratify or arouse sexual desires, either his own or another person’s.
The reason we bring this up is not to make a judgment call about the arrest. We have far too few facts to come to any conclusions. But we will say that while the raincoat scenario we outlined above is relatively rare, it is not that unusual for someone to come upon a person who, for example, having had a few beers, decides to relieve himself against an alley wall. In fact, someone you know may have actually done that. The problem is that these types of cases can, under some circumstances, end up in a charge of indecent exposure, when truth be told, while there may have been exposure, and it may have been indecent, it simply does not qualify as indecent exposure under the Penal Code.
Law Office of David D. White, PLLC
1201 Rio Grande Street #200
Austin, TX 78701
(512) 369-3737