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Indecent Exposure: “Vir...

Indecent Exposure: “Virginia is for Lovers” is Our Slogan; “Get a Room” is our Law

Just because “Virginia is for Lovers” doesn’t mean that our it welcomes trysts “al fresco.”

What does it really mean to be “exposed” in “public” anyway?  For the purposes of three Virginia laws, the answer is the difference between innocent behavior and a crime.

Indecent Exposure is a crime set forth in Virginia Code sec. 18.2-387.  Under this law, it is illegal to make an obscene display of his private parts “in any public place, or in any place where others are present.”   It is a Class 1 misdemeanor.

Obscene Sexual Display is a crime set forth in Virginia Code sec. 18.2-387.1.  Under this law, it is illegal to engage in actual or explicitly simulated acts of masturbation “while in a public place where others are present,” intending to be seen by others, intentionally and obscenely.  It is a Class 1 misdemeanor.

Profane Swearing and Intoxication in Public is a crime set forth in Virginia Code sec. 18.2-388.  Under this law, it is illegal to profanely curse or swear or be intoxicated in public.  (This is commonly referred to as “DIP” for “Drunk in Public.”)  This is a Class 4 misdemeanor.

Is there a difference between being “in public” or “in a public place where others are present,” “in any public place,” or “in any place where others are present?” According to the Court of Appeals of Virginia, no, not much.

In a recent case, Leo Barnes, a jail inmate at the Newport News jail stood up at his bars, masturbating, while staring and grinning at a female Pretrial Services employee.  There were eight other inmates in the cells behind her.

Mr. Barnes argued at trial that he was in jail, a place this is very restrictive and in no way “public.”  He also likened his cell to being in one’s home.

The appellate court, recognizing that the relevant terms were undefined, looked at how other states defined similar terms.  It held that the term “public place,” as used in the statutes, means “places and circumstances where the offender does not have a reasonable expectation of privacy, because of the forseeability of a non-consenting public witness.”  This is a very broad definition – much broader than a plain reading of the text would suggest.  A couple making out in a secluded park after dark risk a criminal conviction if thing get really hot.  “Virginia is for Lovers” may be our slogan, but “Get a Room” is our current law.

The case is Barnes v. Commonwealth, 0271-12-1 (March 5, 2013).