Articles Posted in Indecent Exposure and Aggravated Indecent Exposure

In part 1 of this article, we began an examination of indecent exposure and aggravated indecent exposure cases in Michigan, noting that there has been an increase in aggravated (felony), over simple (misdemeanor) indecent exposure charges. After comparing the 2 IE offenses, we saw how both jail and sex offender registration was highly unlikely, and that most of the time, a guy will pick up one of these charges because he’s blowing off some steam, rather than because of some underlying “problem.” Here, in part 2, we’ll begin by looking at situations where there actually is some kind of issue to be addressed.

ert-300x240Although most IE cases DO NOT arise because of some kind of mental health issue, there are times when it can be a symptom of either an existing or potential problem, and it falls to the courts to figure out if that is or isn’t the case, and, if so, to take the appropriate remedial action. In that regard, the 2 of the biggest risks for problems are that the person is inclined toward exhibitionism, or worse yet, does suffer from some kind of sexual deviancy problem, and needs help.

If a guy has exhibitionist tendencies, then he (or she, but it’s almost always a “he”) needs to get that under control so as not to reoffend. As much as the exhibitionist may enjoy flashing, most of those who are flashed consider themselves victimized, and don’t enjoy the experience. It’s one thing for a guy to join a nudist colony, where nobody is offended by letting it all hang out, but it’s another to corner some young mom with kids in a quiet aisle at Target and freak her out by shaking his penis at her (and yes, we had a case just like that).

My team and I handle a lot of indecent and aggravated indecent exposure cases. For the last decade, more of these cases have been brought as the felony offense of aggravated indecent exposure, while the number the misdemeanor (simple) indecent exposure charges has simultaneously decreased. Also, and in the spirit of accuracy, it’s almost always men facing indecent exposure or aggravated indecent exposure charges (from here on, I will often refer to either or both as “IE”.) In this 2-part article, we’ll take a look at both offenses, and see how these cases work out in the real world.

Desp-300x240The very fact that we see less simple indecent exposure charges and more of the aggravated variety makes a good starting point. Just as about everything goes up in price over time, it seems that criminal laws always get tougher. Criminal offenses are easy targets for politicians, because there is never any partisan divide over wanting to protect the public by cracking down on drunk drivers, flashers, or the like. Being tough on crime looks good on anyone’s resume, and nobody wants to be seen as “soft.”

The key difference between the 2 IE offenses is that simple indecent exposure is a misdemeanor offense that carries a maximum penalty of up to 1 year in jail, whereas aggravated indecent exposure is felony carrying a maximum term of 2 years in prison. Before anyone starts freaking out, however, let me be clear: my team and I have handled countless IE cases, and we have NEVER had a client go to jail or prison as a result of being convicted of either one of them. This sounds a lot worse than it is.

It’s a good thing to be a novice when it comes to facing criminal charges. As very experienced criminal lawyers, my team and I are lucky to spend most of our time with clients who are relatively inexperienced with the criminal justice system. A good person who finds themselves in a bad situation will do well with a lawyer who understands that all of this is new to him or her, and who can make things understandable for what is hoped will be a one-time (or last) trip through the criminal court process.

1_3TBatnV_zBfnXh5MzlcN4g-300x210Although we do handle a lot of 2nd and 3rd offense DUI cases, and even though they’ve been through the system before, those clients aren’t any kind of “criminals” in any real sense of the word. My team and I specifically concentrate our practice on the kinds of charges that don’t attract career criminals. DUI drivers may be facing a criminal charge, but repeat offenses in this field are much more about a troubled relationship to alcohol than anything else. Thus, even for people who have prior DUI convictions, the whole experience of getting arrested again for a subsequent DUI is unnerving, and still seems like a whole “new” experience.

It is, of course, normal for someone who suddenly finds him or herself having to hire a defense lawyer to have every intention to make the whole thing a one-shot deal. This is similar to needing a root canal, where a person is glad to find professional help, but hopes to never need the person’s services again. We get that a lot, and that’s a good thing. People with no, or relatively minor prior criminal records will usually fare better. Who you are (and who you are not) as a person matters in criminal and DUI cases, and the lawyer’s job is to use that to your fullest advantage

In a number of previous articles on this blog, I have tried to explain the impact of location on how things play out in DUI cases. In this piece, I want to expand the scope of that a bit, and make clear that, beyond OWI matters, the location of the court has an effect on all the types of cases I handle, including DWLS and DWLR (suspended and revoked license), indecent exposure, drug possession and embezzlement charges. For purposes of the discussion that follows, “location” should be interpreted to mean the location of the court where the case will be handled, and not merely the specific city in which the charge arose, although that plays a role, as well.

download-6There really is no way to over-emphasize the importance of location. No matter what the charge, if one of my team, or anybody else, for that matter, starts talking to me about a criminal or DUI case, the very first thing I ask is “where?” I know, for example, that a suspended license charge pending in the 52-3 Rochester Hills District Court is going to play out much differently than if was brought in the 41-A Shelby District Court, and that a DUI in Woodhaven’s 33rd District Court won’t be much like one pending in the 44th District Court in Royal Oak.

A criminal or DUI case is, for the most part, an accident of geography, because no one really goes out intending to get arrested. It would be absurd (but probably helpful) for a lawyer like me to publish a list of the best places for certain charges. I can already imagine how I’d break down something like that: if you’re going to drive drunk, avoid these places; if you’re going to drive without a license, these are the best places to get caught, etc.

In part 1 of this article, we began our examination of what makes a felony different than a misdemeanor in Michigan. We saw that one key distinction is the maximum possible penalty that can be imposed, and that a misdemeanor can never be punishable by more than 1 year in jail, whereas a felony carries a potential prison sentence of any number of years. We then distinguished jail, where a person can be housed for no more than 1 year, from prison, where a person will usually remain for at least a year and a day. We then began to explore the differences between how a felony and misdemeanor charges are handled, at least at the early stages, in court. We saw how a felony charge is “tested” in the district court at the preliminary examination stage. We’ll pick up there:

preview-full-blog-post-8-16ac-01-2-300x166At a preliminary exam, the prosecutor will call some witnesses. This usually includes the arresting and/or investigating police officer, a victim, if there was one, and maybe a key eyewitness. Not everyone needs to testify at this phase of the case. Remember, this isn’t a trial, and the prosecutor doesn’t have to prove anything like guilt beyond a reasonable doubt, but merely that there is a debatable question of fact that the defendant committed the charged crime. In that sense, “he-said, she-said” is more than good enough for a case to survive the probable cause test at this stage.

Another way to think about this is that all the prosecutor has to do, really, is show the Judge that the case against someone is not BS. In other words, unless the district Judge would feel comfortable saying something like, “this charge is baloney,” then the case will be allowed to continue to the circuit court. On the other hand, if the Judge can say something like he or she finds no evidence that a crime was committed or a law was broken (this rarely happens), or, that he or she cannot find that there is at least an open question that the person charged with the crime did, in fact do it, then the matter will be dismissed.

As Michigan criminal and DUI lawyers, my team and I deal with both misdemeanor and felony charges every day. Often enough, we’ll be asked by a client to explain the real difference between the 2 kinds of offenses. This happens a lot when the charge my client is facing is one that can be brought as either a felony or a misdemeanor, like DUI’s, embezzlement, indecent exposure offenses, as well as certain drug crimes. In this 2-part article, I will examine and provide an overview of what differentiates a felony from a misdemeanor charge.

apples-oranges-hero-188x300The one thing that most people know right out of the gate is that a felony is more serious than a misdemeanor. Few things in the law are absolute, but the idea that facing a misdemeanor is always “better” than facing a felony is one of them. Of course, the flip side is that facing a felony is always “worse,” and usually more expensive.

In Michigan, the biggest difference between a felony and a misdemeanor is the maximum amount of time a person can be incarcerated. By law, a person cannot be locked up longer than 1 year for a misdemeanor. To be sure, a person can be convicted of a felony and not be required to serve any time at all, or, he or she can be sentenced to less than a year in jail, but in no case can a misdemeanor conviction result in a sentence of greater than one year in the county jail.

If you are facing an indecent exposure, or aggravated indecent exposure case, then you already realize that it’s an uncomfortable situation. If you’re looking for information online, you will quickly run into fear-based marketing tactics from lawyers and reactionary comments from the public. In this article, I want to make clear that no matter how awful you “feel” right now, things are almost certainly not as bad as you probably think, and the best thing you can do is stop freaking out, take a few breaths, and slow down enough to learn that you can get past this whole situation rather painlessly, and often with little or no damage to you or your record.

natural-help-male-infertility-800x600-300x269Let’s quickly separate and explain the 2 indecent exposure (IE) charges: For starters, there’s the plain old “indecent exposure,” meaning a person’s genitals were exposed. This is a misdemeanor charge, and it can be brought for any kind exposure of the genitals, whether outright “flashing,” or even if a guy gets caught urinating. Next, there is “aggravated indecent exposure,” where a person was observed fondling his or her genitals. “Fondling” does not necessarily mean (although it can include) actual masturbation. Thus, any rubbing of the genitals is enough. Aggravated indecent exposure is a felony, but a special kind of “light” (meaning lenient) felony, often called a “high court misdemeanor.” To be perfectly clear about it, although the term “high court misdemeanor” may sound better, it is still a felony.

It’s not uncommon for someone facing an IE charge to panic when they hear the word “felony,” but the good news is that here, that reaction is mostly unfounded. Sure, an aggravated indecent exposure charge is in some ways, “worse” than plain old indecent exposure, but that has more to do with procedure and, yes, money. A felony can involve way more court appearances and legal work than a misdemeanor. Even so, at the end of the day, most aggravated indecent exposure cases can be wrapped up rather simply, and without a lot of negative consequences (like jail). There are, however, certain important potential issues that must be addressed in both indecent or aggravated indecent exposure cases to make things go more smoothly. Let’s look at them…

The idea for this article came from my associates after a week where we saw how things go bad the minute someone starts talking to the police without a lawyer. What I want to make clear in this article is the one universal piece of legal advice that holds true in every situation: shut up. If you are being questioned by the police, always exercise your right to remain silent. In fact, of all the rights we have as Americans, none is waived so freely, so frequently, and so much to a person’s detriment, as the right to remain silent. In the real world nobody ever talks themselves out of trouble – it’s just the opposite. If you haven’t talked to the police yet, then don’t. If you already have, then we are simply left with the reality of that.

smiley-zipping-mouth-300x210We’ll begin by restating what is far more overlooked than obvious: you have an absolute right to remain silent. We’ll get into this more later, but the day before this article was written, I met with a client who hired me after he spoke to a police detective and was subsequently arrested and charged with a crime. Because he is a nice guy who has never been in trouble before, my client naively asked the detective if it was a good idea to be talking to him, and if he should get a lawyer first.  The detective, for his part, answered the question rather diplomatically, and replied, “I can’t tell you what to do.”  Of course, my client now understands that he should not have said a word.

People often feel obligated, or in some way “pressured” to answer questions when asked by the police. Most people are good by nature, and even though they may have broken a law, they don’t want to appear uncooperative, and because of that, they “cooperate” themselves straight into more trouble, only to later realize they should have just kept quiet.

There is a certain amount of embarrassment that just automatically goes along with facing an Indecent Exposure or Aggravated Indecent Exposure charge. Because I handle more Indecent Exposure (IE) cases than just about anyone, at least in the Detroit area (Wayne, Oakland and Macomb County), where I practice, I know this well, having sat across the table from clients facing these charges more times than I can count. Beyond having developed an expertise in handling these cases, I have also honed a special skill in handling the clients who have to deal with these charges through the criminal court system. Some of this is attributable to my background: after earning my undergraduate degree in psychology and then going through law school, I also completed a post-graduate program in addiction studies, a rather specialized area within the broader field of psychology, and one where there is always some psycho-pathology at issue. I understand that an IE case can result from some underlying stress or trouble a person may be experiencing (and about which he may not be consciously aware), but I also know that these incidents can just “happen.” Not everything about a case has be a big deal, and my job is make sure that, to the extent possible, we keep it that way in yours.

642x361_Embarrassed_to_Visit_Your_Doctor-1An interesting thing happened the week this article was written. In the course of meeting with a new IE client, his explanation for what led to his arrest involved circumstances a bit different from what I usually hear. It wasn’t the uniqueness of his case that struck me, but the fact that, within my office, no one even thought to ask about it. In other words, this poor guy came in, understandably embarrassed, even though he didn’t need to be, and because my staff and I see so many of these cases, neither my senior assistant, my paralegal, nor my associate attorney so much as asked what happened in his case. Once he left, my staff took his information and contacted the court where it is pending and made sure all the paperwork, including the request for the police report, was properly and quickly filed. To everyone on our end, his case was no big deal; in fact, it was just another day at the office.

Feelings of embarrassment are normal, and expected, really, but they are also useful in assessing whether a person is a risk to re-offend. Here, I kind of have to split myself in two and look at this both from the clinician’s point of view, and also from the perspective of a defense lawyer who knows how to best resolve these matters. I’ve read countless clinical assessments in these cases – some completed by court-order, others undertaken at my suggestion to help in a case (and for what it’s worth (and this it’s no great secret that a savvy lawyer would do this) if an assessment done privately comes back and is not helpful to the case, it will never see the light of day), and they can be impressive in their use of scholarly language. At the end of the day, though, the part of the assessment everyone looks to is the prognosis about whether the person is likely to engage in such behavior again, or not. And sometimes, when the Judge believes the person has been embarrassed enough, it can be enough to put any such questions to rest.

Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.”  Seriously, don’t say anything.  In my role as a criminal, DUI and even driver’s license restoration lawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet.  In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything.  Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back.  Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.

raf,750x1000,075,t,5e504c_7bf03840f4.u2In that case, the person (I will use “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver.  This person left the scene, but the other driver got the plate and the police showed up at his/her home.  The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time.  Subsequently, the person tested out with a rather high BAC.  Although I cannot say much more, charges will be coming.  The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.

I see this all the time in criminal cases, as well.  Let’s use an indecent exposure case for an example.  Imagine the police get a call about a guy exposing himself while driving on Main Street.  The caller can’t give a great description of the driver, but does give a license plate number.  Running that information, they identify the car as belonging to Fred, and the police contact him.  They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.”  With that answer, Fred has just seriously helped the case against him.  Now the police know that Fred was in the area at or around the time the caller said she was flashed.  Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone.  Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest.  To be clear, in most cases, the police do “know.”  Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession.  A street cop learns to read facial expressions and body language in ways you and I will never comprehend.  Still, “knowing” something is one thing, but being able to prove it is quite another.