OPEN OR GROSS LEWDNESS

Lewdness is a vague but serious crime in Nevada, and can carry severe penalties.

What is the legal definition of Open or gross lewdness?

Open or gross lewdness is defined in NRS 201.210.

NRS 201.210 – Penalty; affirmative defense.

1. A person who commits any act of open or gross lewdness is guilty:
   1. Except as otherwise provided in this subsection, for the first offense, of a gross misdemeanor.
   2. For any subsequent offense, or if the person has previously been convicted of a sexual offense as defined in NRS 179D.097, of a category D felony and shall be punished as provided in NRS 193.190.
   3. For an offense committed in the presence of a child under the age of 18 years or a vulnerable person as defined in paragraph (a) of subsection 8 of NRS 200.5092, of a category D felony and shall be punished as provided in NRS 193.190.
2. For the purposes of this section, the breast feeding of a child by the mother of the child does not constitute an act of open or gross lewdness.

What exactly does “Lewdness” mean?

Lewdness is a legal term that basically applies to three situations:

• Public sexual acts of any kind;
  
• Sexual acts done in a private place in such a way that others can see it; or
  
• Any sexual encounter that does not amount to rape.

So, what constitutes a sexual act in this context?

Essentially, anything that would be considered a public display of affection., including:

• Making out;
  
• Heavy “petting”;
  
• Intercourse;
  
• Self-gratification up to and including masturbation.

Okay, then what does the statute mean by “in a private place in such a way that others can see”?

It basically means partaking in any of the above-mentioned actions in a private place while intentionally in view of others. In other words, if you are having sex or masturbating in the front window of your house with the intent that people outside could see, then you would be violating NRS 201.210.

What if no one complains about the sexual conduct, or even sees it?

It doesn’t matter, the crime is committed regardless of whether anyone else sees or cares about you doing it.

What about the Sexual encounter that does not rise to the level of rape? What does that mean?

Lewdness applies to any type of physical conduct that is unwanted, but does not involve penetration of any kind. Generally, this means an unwanted kiss or touching.

Is Lewdness the same as Indecent Exposure?

No. In fact, both charges can be brought at the same time. Indecent exposure requires the actual exposure of ones private parts, while lewdness does not require the exposure of any part of the body. In other words, Indecent exposure refers to baring the private parts of someone’s body, while lewdness involves a sexual act or touching.

Is there anything else I should know?

Yes. Lewdness is considered a sex crime, a conviction requires registration on the Sex Offender Registry.

For a more in-depth discussion of the Sex Offender Registry, please click here.

What are the possible penalties?

As with many types of sexually related offenses, the penalties for Open or Gross Lewdness are determined by whether you have prior convictions for sexually related offenses, as well as the circumstances of your actions.

Please Note: As already noted above, a conviction for Open or Gross Lewdness will require registration on the Sex Offender Registry in addition to all of the penalties listed below.

For first time offenders, Open or Gross Lewdness will be charged as a gross misdemeanor and will carry a possible punishment of:

• Up to 364 days in jail; and/or
  
• Possible fines up to $2,000.

If you have a prior conviction for a sexually related crime, then a subsequent charge for Open or Gross Lewdness will be charged as a category D felony and will carry a possible punishment of:

• Between 1 and 4 years in a Nevada State Prison; and
  
• Possible fines up to $5,000.

Further, if you are being charged with Open or Gross Lewdness in the presence of a minor (under 18) or a vulnerable person (usually someone disabled or incapacitated), then the charge will be a category D felony, regardless of whether you have any prior convictions, and the possible punishment will be:

• Between 1 and 4 years in a Nevada State Prison; and
  
• Possible fines up to $5,000.

Are there any Defenses?

Yes, of course there are. Because of the necessary analysis of the specific facts of your charges, any possible defenses will depend on the circumstances of your case. Some of the possible defenses include:

• Entrapment – Undercover police officers are deployed to catch numerous crimes. However, they cannot convince you to commit a crime and then charge for that crime. In other words, in order to prove the crime, the prosecutor must show that even if the undercover officer had not been involved, you would have committed the illegal act on your own. If the prosecutor cannot prove this beyond a reasonable doubt, then the charges against you should be dropped or dismissed.
  
• Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
  
• Police Misconduct – The police are required to follow certain laws when investigating possible crimes. If the police do not follow these laws, often referred to as “search and seizure” laws, then any evidence they find may be thrown out as “fruit of the poisonous tree.” This means that the prosecutor will not be able to use the evidence because it was obtained illegally. If there is not enough evidence to prove every element of the crime beyond a reasonable doubt, then the charges against you should be dropped or dismissed.
  

What should I do if I’ve been charged with Open or Gross Lewdness?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.