If you live in New York City, there are likely a multitude of things that you witness daily that offend your sensibilities. We may wish that we could file criminal charges against anyone or anything that is offensive to us, but most of the sights we see do not fall under the legal definition of offenses against public sensibilities.

Since most people are not aware of what constitute offenses against public sensibilities, we will outline the legal standards and how you can recognize this behavior or avoid engaging in such conduct yourself.

Examples

Below are some examples:

• If you live in an apartment building and happen to like to walk around without clothing, you should know that if you stand in front of your window with your genitalia or other private parts exposed to the public, you can be charged with public lewdness.

This is so, even if you are in your own private premises because you might be seen by the public or people in other private apartments across from yours. Even if your apartment is on a high floor and cannot be seen from the street, if there are other buildings and windows you can see, then it is possible that someone could be offended. Although you may have a defense, as we will discuss later, it is potentially risky behavior.

• Suppose you want to put on a show in a public place that is free and can be seen by anyone who happens to walk by. As part of this show, one of the female actors will be nude from the waist up for a short time. Although under Article 245, nudity in plays and other types of entertainment is excluded from prosecution, you must know whether your city, town or village has a local law that prohibits nudity even in public entertainment. If it does, then you could be charged with a crime.
• If you are out on the street and have to urinate, exposing your private or intimate parts where others can see may give rise to a charge of exposure of a person under Article 245.

These examples demonstrate the nuances of the law and the different scenarios under which you may be charged with offenses against public sensibilities. As a result, it is critical to understand the laws, possible charges, penalties, and defenses to these crimes. We will discuss all these issues later in this article and help you to understand your potential involvement with crimes that fall under the umbrella of offenses against public sensibilities.

The Legal Definitions of Offenses Against Public Sensibilities 

The relevant statute governing these crimes is Article 245 of the New York Penal Law, which describes the elements of the crimes, and potential degrees that can be charged.

It is important to be familiar with these detailed and at times, explicit, definitions so that you know whether you are dealing with offenses that are covered under the law. We will outline the basic parameters of the law in this article, but it is important to consult an attorney regarding the facts in your specific case.

1. Public Lewdness

Article 245.00 of the New York Penal Law, defines public lewdness as an intentional exposure of private or intimate parts in a lewd manner that happens in a public place or in the following situations:

• In private premises where you can be seen from either a public place or other private premises with the intention of being seen; or
• While you are trespassing in a dwelling and are seen by a lawful occupant.

1. Exposure of a Person 

Article 245.01 describes what constitutes illegal exposure of a person, and states:

• If you are in a public place and your private or intimate parts are exposed or unclothed, you are guilty of illegal exposure.
• The law defines intimate or private parts of a female as, “that portion of the breast which is below the top of the areola.”

Exceptions to illegal exposure include: “…the breastfeeding of infants or…. any person entertaining or performing in a play, exhibition, show or entertainment.” Significantly, any city, town, or village can adopt a more restrictive law and still make it illegal to expose intimate or private parts under any circumstances. 

1. Promoting the Exposure of a Person

Article 245.02 provides that you are guilty of promoting the exposure of a person when you knowingly conduct, maintain, own, manage, or operate a place where a person publicly exposes private or intimate parts. The same definitions and exceptions under Article 245.01, apply to promote exposure of a person.

1. Public Lewdness in the First Degree 

Article 245.03 contains the offense of public lewdness in the first degree, which is when you are nineteen years of age or more and intend that your private or intimate parts will be seen by persons under sixteen years old, in a public place, or as described under Article 245.00 (a) or (b) below:

• In private premises where you can be seen from either a public place or other private premises with the intention of being seen; or
• While you are trespassing in a dwelling and are seen by a lawful occupant.

1. Offensive Exhibition

The crime of offensive exhibition under Article 245.05 1.-3. Is relatively uncommon but still important to know. This occurs if you are knowingly producing or operating an exhibition that contains:

• A competition for eight or more hours in a dance contest, bicycle race or other physical endurance contest; or
• Ridiculing a person by throwing balls or other articles at his or her head or body; or
• Shooting a firearm, throwing a knife or other sharp or dangerous instrument at someone. 

1. Definitions of Public Display of Offensive Sexual Material

Article 245.10 includes several detailed and explicit terms that you should know in order to determine whether your conduct is a crime.

• Nudity: This term has a detailed definition that you should be aware of and includes male and female genitals and buttocks with “less than a fully opaque covering…” Article 245.10 1.
• Sexual conduct: The definition includes an “act of physical contact with a person’s clothed or unclothed genitals…” and other private or intimate body parts-article 245.10 2.
• Sado-masochistic abuse: This definition is specific and detailed and includes the “…flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume…”  Article 245.10 3.
• Transportation facility: This definition is very broad and encompasses any type of public transportation, including by air, railroad, bus, boat, or motor vehicle, as well as the stations used for transportation. See Article 245.10 4.

1. Public Display of Offensive Sexual Material 

Article 245.11 describes illegal conduct that involves the display of offensive sexual material on public signs, billboards, screens, or other mediums.

• The display of offensive sexual material is illegal if it is a picture, three-dimensional or other visual display that shows a person or a part of their body that, “…predominantly appeals to the prurient interest in sex,” and that:
• Shows “nudity or actual or simulated sexual conduct or sadomasochistic abuse,” or does so by covering the genitals or other private parts with a mark so that the area is obscured. Article 245.11 (a) (b).
• If, with your knowledge of the content, you display offensive sexual material from a “…window, showcase, newsstand, display rack, wall, door, billboard, display board, viewing screen, moving picture screen, marquee…,” that can be seen from a public street or sidewalk, transportation facility or any other place that the public is able to view it without paying an admission fee or requiring a minimum age.
• The public places include but are not limited to “schools, places of amusement, parks, and playgrounds…”
• Rooms or apartments that are actual residences are excluded under this section of the law. 

The Elements of the Crimes Under Offenses Against Public Sensibilities 

The prosecutor must establish the elements of the crime that you are charged with under Article 245. We will list these elements and some examples to help you determine whether your conduct is a crime.

A. Public Lewdness

The elements of this crime are:

•  Intent;
• Exposure of private or intimate parts;
• In a lewd manner;
• In a public place, or in private premises where you can be seen from a public place; or
• You are trespassing in a private dwelling and are seen by an occupant.

An example of this crime is, if you are at a friend’s third story apartment and decide as a joke to stand in front of the window without clothing, making lewd gestures, you could be charged with a crime because you can be seen from the street and possibly from other apartments across the street.

B. Exposure of a Person

In order to establish the crime of exposure of a person, the following elements must exist:

• You must be in a public place; and
• Your private or intimate parts must be exposed.

Under Article 245.02, these elements do not apply if a woman is breastfeeding or if you are in a show or other form of public entertainment. Still, as stated earlier, you must be aware of any law in your city or town that prohibits exposure of a person even in these circumstances.

Note, that this crime does not include an element of intent so that if you are in public and decide to remove your pants and expose your genitals for any reason, you can be charged with illegal exposure.

C. Promoting the Exposure of a Person 

In order to establish that you engaged in promoting the exposure of a person, you must:

• Act knowingly;
• Conduct, maintain, own, operate, manage or supply a place where individuals appear with their private parts exposed; and
• Promote exposure in a public place.

An example of this offense is if you organized a public art exhibit at a street fair that included live naked models with some parts of the body covered, but the private parts were exposed. If you lived in a city where this was prohibited, even though it is excluded under Article 245, you could be charged with a crime.

If your city does not have a prohibition against such exposure, then arguably you could not be charged with violating the law.

D. Public Lewdness in the First Degree 

The elements of this crime include:

• That you are nineteen years of age or older;
• You intend to be seen by a person sixteen years of age or older;
• You are in a public place as described in Article 245.00 (a) or (b); and
• You expose your private or intimate body parts “in a lewd manner for the purpose of alarming or seriously annoying such person…”

An example of this crime is if you are nineteen or over and plan to expose your private or intimate body parts in a public place, such as a park, to anyone sixteen or under. The act of intending to be seen when you expose yourself in a park is inherently lewd and alarming or annoying, which can likely meet this element of the crime.

E. Offensive Exhibition

In order to satisfy the elements of this crime under Article 245.05 1.-3., you must knowingly produce, operate, manage or furnish a premise that promotes public entertainment or amusement that consists of any of the following:

• A continuous competition involving physical endurance, for more than eight hours such as a dance contest or bicycle race; or
• Subjecting a person to humiliation and ridicule by throwing articles such as balls at his or her head; or
• Discharging a dangerous weapon like a firearm, knife, or other weapons towards a person.

You must have intent and knowledge in order to be guilty of this crime, which contemplates that you would either organize or allow someone else to organize, an offensive exhibition on the property you owned or provided to someone else.

F. Public Display of Offensive Sexual Material

Under Article 245.11, the elements of illegal public display of offensive sexual material require intent or knowledge of your actions that include the following:

• Display of offensive sexual material from various places, including windows, newsstands, billboards, walls, doors or viewing screen; and
• The display can be viewed from a public place as defined to include a public street, sidewalk or transportation facility, as well as schools, parks, playgrounds and places of amusement; or
• Any place where the public can enter without paying a fee or having a minimum age requirement; and
• The display contains nudity or actual or simulated sexual conduct or sadomasochistic abuse, including pictures that partially cover intimate or private body parts.

Under this law, if you own a newsstand or other store, you may not display pornographic material as described in Article 245.11 because anyone can enter your store. If, however, you own a place of business that has a fee to enter and the minimum age is 21, you could display pictures that would otherwise be illegal unless there is another law prohibiting them.

In addition, this law does not apply to private residences, apartments or rooms, so presumably, if you hang offensive sexual material in your own window, even if it can be seen by others, it is not illegal under this law.

Related New York State Offenses

There are several related state charges that can be brought in connection with offenses against public sensibilities. One charge you could face would be for disorderly conduct under Article 240.20 of the New York Penal Law if you intended that your behavior cause annoyance, alarm or you recklessly created that risk.

Disorderly conduct includes being in a public place and using abusive or obscene language or making obscene gestures. You would be charged with a violation of this crime.

A possible civil charge you could face is under the New City Health Code Section 153.09 which makes it illegal to throw offensive matter in the street and includes urinating in the street. If you expose your private parts in public and are seen doing so, even if it is to urinate, you could receive a civil ticket and a fine, as well as a criminal charge for exposure of a person.

Agencies Responsible for Prosecuting Offenses Against Public Sensibilities in New York

The New York District Attorney is responsible for prosecuting crimes concerning offenses against public sensibilities.

Penalties for Violating New York Penal Law, Article 245

The crimes of offenses against public sensibilities are classified as either violations or misdemeanors, depending upon the activity you engaged in.

• If you committed public lewdness under Article 245.00, you could be charged with a class B misdemeanor, with a sentence of up to three months in prison and up to a $500.00 fine.
• If you are guilty of exposure of a person under Article 245.01, you can be charged with a violation, which is an offense that is something other than a traffic violation and is punishable by no more than fifteen days in prison.
• If you are guilty of promoting the exposure of a person under Article 245.02, that is also a violation.
• If you commit public lewdness in the first degree, under Article 245.03 1., that is a class A misdemeanor, punishable by between fifteen days and no more than one year in prison. A fine of up to $1,000.00 may also be imposed.
• If you engage in the offensive exhibition under Article 245.05, that is a violation.
• If you engage in a public display of offensive sexual material, you can be charged with a class A misdemeanor.

Legal Defenses to Offenses Against Public Sensibilities 

The burden of proof of showing that you violated the law regarding offenses against public sensibilities is on the prosecutor, so it is important for you to know how you can defend your charges. These are some common defenses that you may raise if charged.

• Lack of Intent or Knowledge 

Intent or knowledge of your actions is required under most of these crimes, so if you can show that you did not intend that your actions be seen by others, you have a defense. For example, regarding the crime of public lewdness, if you are standing in a public place and your pants fall accidentally, exposing your private parts, you would have a defense of lack of intent and that you did nothing lewd.

Although you could be charged with exposure of a person which does not require intent, it is unlikely that this charge would be upheld if you explained the circumstances.

• Your Conduct Falls Within an Exception

Articles 245.01 and 245.02 contain exceptions to the crime of exposure of a person or promoting exposure of a person. If you are breastfeeding or part of public entertainment, and you do so in a city or town where the exception is allowed, then you have a defense against this crime.

In addition, the crime of display of offensive sexual material excludes display from rooms or apartments that are residences so you cannot be charged under Article 245.11 if you put an offensive sexual picture in your apartment window.

Consequences of Being Convicted of an Offense Against Public Sensibilities 

The offenses described in this article are sensitive and potentially embarrassing to you and your family, should you be charged and convicted. Although these crimes are violations and misdemeanors, they still create a criminal record, and any connection to these crimes can damage your personal and professional reputation, regardless of your occupation. 

Why You Need A Lawyer 

Based upon the detailed and explicit nature of the statutes pertaining to offenses against sensibilities and other related charges, you must consult with attorneys like us who specialize in these crimes. We have attorneys devoted to serving clients like you who could be charged with these potentially embarrassing crimes.

Many of our attorneys are former prosecutors and have unique knowledge of how government agencies and district attorneys investigate and prosecute cases like these. We know that the prosecutor has the burden to prove your case, and we are in the best position to defend you because we have seen exactly how the prosecutor builds his or her case.

If you believe that you have been involved in an offense against public sensibilities, there is no substitute for consulting an experienced law firm such as ours. For questions about these crimes, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us at (347) 263-8825.