Charged with Indecent Exposure or Aggravated Indecent Exposure – Part 1

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.

Another thing that freaks people out is fear of having to register as a sex offender. Fortunately, that’s almost never on the menu, either. I want this to be crystal clear about this:

A person convicted of either indecent exposure or aggravated indecent exposure will NOT register as a sex offender except in the following circumstances:

1. If a victim (meaning someone who saw the exposure) is a minor, or

2. If the person is also convicted of the separate criminal charge of being a “sexually delinquent person,” or

3. If the person, at the time of the incident, was already a registered tier 1 or tier 2 sex offender.

In the real world, this rules out about 99% of all indecent exposure and aggravated indecent exposure defendants. Unless someone facing an IE charge already has a sex crimes record, then the only risk for having to register is that someone who saw the exposure was under 18 years of age. These situations occur so infrequently that it really is a waste of effort to spend any more time discussing them here, so we’ll move on.

In addition to the potential (but highly unlikely) jail and/or prison sentence, under Michigan law, indecent exposure carries a maximum fine of up to $1000, while the fine for aggravated indecent exposure rises to $2000. Whatever else, when you include legal fees and other associated costs, along with a fine, these cases are not cheap. Still, the choice between going to jail or paying money is a no-brainer.

For as interesting as all that may be, none of it helps explain why there are so many more aggravated indecent exposure charges, rather than simple indecent exposure charges, these days. It has been more than 10 years since the felony charge of aggravated indecent exposure was added to the indecent exposure law. The trend is that an increasing proportion of these offenses are being charged under the more serious provision of the law.

It seems likely that, more than anything else, this reflects a shift in societal attitudes that is less tolerant of things like driving drunk, exposing one’s self (especially for a guy), and engaging in other sexually assaultive or offensive behavior. With the exception of the legalization of marijuana (and remember, that was through a vote of the people, not the politicians), any notion of “protecting the public” has strong PR appeal to politicians.

Also, the simple truth is that exposing one’s self is almost sure to cause some kind of reaction. Women popping their tops at Mardi Gras to cheering crowds is one thing, but when a man displays his “junk” to an unsuspecting person (usually, it’s a woman) it really is quite another. I have often written about the fact that there is an undeniable “yuck” factor about IE cases, because there is, and anyone facing either an indecent exposure or an aggravated indecent exposure charge knows and feels this now, even though they probably didn’t think that part of things through before having acted out.

Whatever circumstance may lead to someone being charged, nobody is going to update their dating or professional profile with a conviction for an IE offense. We’ll get into some of the psychological considerations later, but it’s undeniable that an indecent or aggravated indecent exposure charge is embarrassing and regrettable, and it’s always best to make as much of it go away as possible.

Still, exposure incidents occur, and when they do, it’s almost always deliberate.

Getting busted while out on a boat and peeing off the side is one thing, and that does happen. However, it is otherwise an urban legend that people are routinely charged with indecent exposure for being caught urinating behind a building. In nearly 30 years as a lawyer, and having personally handled more IE cases than any lawyer I know, I can only recall one “peeing” on land case, and it had more to do with the guy being drunk and relieving himself in plain sight rather than anything else.

In other words, the overwhelming majority of these cases arise either because a guy is “flashing” in some way, or the gets discovered engaging in some self-pleasure (we’ve had cases where a guy thinks he’s parked far enough away from everybody for a little “alone time,” only to be discovered). Once in a while, we’ll see an IE case involving 2 people getting frisky, but those are far more the exception, rather than the rule.

I point this out because it’s not uncommon for a man to initially try and explain, in the most bizarre ways, how an exposure was “accidental.” Sure, if 2 people are getting busy in a car, they may, in the heat of the moment, forget the outside world enough to be exposed, or the guy satisfying himself may have miscalculated his parking spot, but as I just noted, those situations are far more the exception, rather than the rule. The reader wouldn’t believe the convoluted stories we’ve heard from guys trying to explain how some lady, looking out her window, wound up seeing his penis.

Despite the inherent “yuck” factor of these cases, after nearly 3 decades of practicing law, I have come to the conclusion that most IE offenses (or at least most of the situations for which we are hired) ARE NOT the result of any kind of underlying psychological or sexual pathology. Part of that shock and concern that surrounds these cases is some notion that the guy is a pervert, or worse yet, some kind of predator.

This is very important, and not without a bit of irony in it for me, because my undergraduate degree is in psychology, and my post-graduate studies, after law school, were in the field of psychology as well. Because of that education, I am naturally inclined to look for the reasons (or some kind underlying pathology) to explain a particular behavior. Of course, there is, in a sense, a “psychology” to every choice we make as human beings, but I don’t think each one requires a complicated explanation.

In fact, I think it’s often rather simple in IE cases: people blow off steam in all kinds of ways. Some guys go out and get drunk, while other guys may punch a wall. Some guys don’t get drunk, or hit anyone or anything, but act out in other ways. After sitting across from so many men dealing with IE charges, I completely believe those that say they really don’t know what got into them to do it. That’s not to say there wasn’t some underlying stressor that got the better of them, but those kinds of things work beneath a person consciousness.

Usually, having to go through the legal process is more than enough for a fellow to realize that he needs to manage his or her behavior and reactions differently. In other words, not everything that leads a guy to pick up an IE charge needs to “fixed” with endless therapy. As an old bumper sticker put it, sometimes, “$hit happens.”

There are times when a guy just goes and does something stupid, and that’s all there is to it.

Not every stupid action is the sign of a deep, underlying problem. Moreover, we don’t have to label and treat everything, either. A Judge pointing the finger at an IE defendant, saying, “don’t do this again, because next time, you’re going to jail” is most often the perfect remedy, and more than enough to prevent any recurrence.

We’ll use this as our stopping point for now, and pick up in part 2 by looking at when an indecent or aggravate indecent exposure charge does signal some kind of problem, and then we’ll discuss plea deals, staying out of jail, and keeping your record as clean as possible.