Lewdness is a New Jersey criminal offense that may be charged as a disorderly persons offense or a fourth degree indictable offense. If convicted of a disorderly persons offense in NJ, you could be facing up to 6 months in jail. A conviction for a fourth degree offense could mean up to 18 months in prison. If convicted of lewdness, you will have a criminal record. The record will state “lewdness” as the offense committed. The New Jersey expungement statute requires a five year waiting period before a defendant convicted of disorderly persons lewdness may file a petition to remove the charge from a criminal record. The waiting period for a fourth degree conviction is ten years. Nonetheless, if convicted under the lewdness statute, the defendant will not be required to register as a sex offender under Megan’s law
Obviously, an individual charged with this type of offense may be concerned about the embarrassment of a public disclosure. These concerns are well-founded. The following sections interpret and explain the lewdness statute. A discussion of possible defenses is also included. If you have been arrested and charged with lewdness in New Jersey, it is imperative that you contact a criminal defense attorney to discuss the facts of your case and to determine the availability of any defenses to the charge. In my experience, lewdness offenses are taken very seriously and it takes a skilled defense lawyer to negotiate effectively with the prosecutor, and if necessary, take the case to trial and obtain a not guilty. Please take a minute to review the lewdness statute before proceeding.
N.J.S.A. 2C:14-4. Lewdness
a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed.
b. A person commits a crime of the fourth degree if:
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
(2) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor’s conduct.
c. As used in this section:
“lewd acts” shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.
The case law reviewing the lewdness statute has consistently held that the mental or intent element of the offense is the crux of the crime. This means that in order for a defendant to be found guilty under either section of the lewdness statute the State must prove that the defendant had the requisite mens rea. To be convicted under section a. of the statue the State must show:
- A lewd or offensive act
- that the defendant knows or reasonably anticipates is likely to be observed
- by a person who would be affronted or alarmed by the conduct
- including exposure of the genitals
- if that exposure is for sexual gratification of himself or others
To sustain a conviction for fourth degree lewdness, the State must prove:
- The same as above plus
- know or reasonably expect that he is likely to be observed by a person who is under thirteen years of age
- and at least four years younger than the defendant
- The exposure “must be occasioned by the sexual desire of the actor to be observed by a minor who is less than thirteen.” State v. Hackett
What your purpose was will be the primary question that needs to be answered. There are always surrounding circumstances from which your purpose can be inferred. Therefore, the totality of the circumstances could lead the finder of fact to conclude that you did have the requisite intent more fully set forth above. Nonetheless, when a conviction for a criminal offense is heavily dependant on mens rea, such as criminal lewdness, attorney with sex crime experience will be able to fashion strong defenses to the charges.