Appendix E: Sample Public Indecency Statute

PUBLIC INDECENCY*

Section 1. A person who knowingly and intentionally, in a public place:

(a) engages in actual or simulated sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions or other ultimate sex acts;

(b) appears in a state of nudity; or

(c) fondles the genitals of himself, herself, or another person; commits the crime of public indecency, a Class misdemeanor.

Section 2. Definitions.**

(a) "Nudity" means the showing, in a public place, of the human male or female genitals, pubic area, anus or buttocks, the showing of the female breast below the top of the areola, or the showing of the covered male genitals in a discernibly turgid state.

(b) "Public Place" means any location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. Public places include, but are not limited to, streets, sidewalks, parks, beaches, business and commercial establishments (whether for profit or not-for-profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement), bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets and meeting facilities utilized by any religious, social, fraternal or similar organizations. Premises used solely as a private residence whether permanent or temporary in nature shall not be deemed a public place. Public place shall not include enclosed single sex public restrooms, enclosed single sex functional showers, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctor's offices, portions of hospitals and similar places in which nudity or exposure is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein; nor shall it include a person appearing in a state of nudity in a modeling class operated by: (1) a proprietary school, licensed by the State; a college, junior college or university supported entirely or partly by taxation; or (2) a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation or an accredited private college.

Section 3.

The provisions of Section 1(b) shall not apply to any theatrical production performed in a theater by a professional or amateur theatrical or musical company which has serious artistic merit.

*If appropriate, a "preamble" should be included in the preface of the adopting document, setting forth the purpose and governmental interest in enacting said legislation, i.e., intent is to ban public nudity, designed to protect public morals and societal order, reflects societal disapproval of nudity in public places and among strangers, and the prevention of prostitution, sexual assault and associated crimes. These were the governmental interests cited by the five concurring justices in Barnes v. Glen Theatre.

**In creating a new offense for public indecency, be careful that you do not eliminate the offense of indecent exposure. That offense needs to remain intact to protect against private exposure to children or unconsenting adults. For example, a man who lures a child into a home and exposes himself there has committed the crime of indecent exposure, but would not be in violation of the new public indecency law because the act occurred in a private place.