Indecent Exposure in Tennessee Can Make You a Sexual Offender
Indecent Exposure is when an individual reveals himself or herself in public. The individual may reveal themselves by ‘flashing’ (exhibitionism), or by having sex in a public place and being seen.
Depending on the location in which the exposure allegedly occurs, the intent of the individual, the relationship and age of the parties, and other various factors, this charge can result in dismissal, a misdemeanor conviction, or a felony conviction.
The most severe penalty of this offense is that conviction will result in the individual being placed on the Sex Offender Registry. If you have been charged with indecent exposure, please contact me immediately to discuss how we can defend your reputation and your freedom.
I have written an entire consumer guide for individuals charged with this offense, which can be downloaded for free here. You can also read the excerpt on this page below the statute.
Tenn. Code Ann. 39-13-511. Indecent Exposure.
(a) (1) A person commits the offense of Indecent Exposure who:
(A) In a public place, as defined in § 39-11-106, or on the private premises of another, or so near thereto as to be seen from the private premises:
(a) Exposes the person’s genitals or buttocks to another; or
(ii) Reasonably expects that the acts will be viewed by another and the acts:
(a) Will offend an ordinary viewer; or
(b) Are for the purpose of sexual arousal and gratification of the defendant; or
(B) (i) Knowingly invites, entices or fraudulently induces the child of another into the person’s residence for the purpose of attaining sexual arousal or gratification by intentionally engaging in the following conduct in the presence of the child:
(a) Exposure of such person’s genitals, buttocks or female breasts; or
(b) Masturbation; or
(ii) Knowingly engages in the person’s own residence, in the intended presence of any child, for the defendant’s sexual arousal or gratification the following intentional conduct:
(a) Exposure of the person’s genitals, buttocks or female breasts; or
(2) No prosecution shall be commenced for a violation of subdivision (a)(1)(B)(ii)(a) based solely upon the uncorroborated testimony of a witness who shares with the accused any of the relationships described in § 36-3-601(5).
(3) For subdivision (a)(1)(B)(i) or (a)(1)(B)(ii) to apply, the defendant must be eighteen (18) years of age or older and the child victim must be less than thirteen (13) years of age.
(b) (1) “Indecent exposure”, as defined in subsection (a), is a Class B misdemeanor, unless subdivision (b)(2), (b)(3) or (b)(4) applies.
(3) If the defendant is eighteen (18) years of age or older and the victim is under thirteen (13) years of age, and the defendant has any combination of two (2) or more prior convictions under this section or § 39-13-517, or is a sexual offender, violent sexual offender or violent juvenile sexual offender, as defined in § 40-39-202, the offense is a Class E felony.
(4) If the defendant is eighteen (18) years of age or older and the victim is under thirteen (13) years of age, and the offense occurs on the property of any public school, private or parochial school, licensed day care center or other child care facility during a time at which a child or children are likely to be present on the property, the offense is a Class E felony.
(c) (1) A person confined in a penal institution, as defined in § 39-16-601, commits the offense of indecent exposure who with the intent to abuse, torment, harass or embarrass a guard:
(A) Intentionally exposes the person’s genitals or buttocks to the guard; or
(B) Engages in sexual contact as defined in § 39-13-501.
(2) For purposes of this subsection (c), “guard” means any sheriff, jailer, guard, correctional officer or other authorized personnel charged with the custody of the person.
(3) Notwithstanding subsection (b), a violation of this subsection (c) is a Class A misdemeanor.
(d) This section does not apply to a mother who is breastfeeding her child in any location, public or private.
Excerpt from my Indecent Exposure Consumer Guide:
I. Public Place Requirement:
The first thing you need to understand about the offense of indecent exposure is that it can only occur in a public place, the private premises of another, or near enough to either so as to be seen from their private premises – but that term is much broader than the way we might use it in everyday language.
The term “public place” is further defined under Tenn. Code Ann. § 39-11-106 as “a place to which the public or a group of persons has access and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, places of business, playgrounds and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place.” Tenn. Code Ann. 39-11-106.
(Notice the “includes, but is not limited to,” which signifies that this is not an exhaustive list. These are the only specific locations, but the analysis is more than just seeing if it fits on this list due to that language.)
A recent Indecent Exposure case applies the term “public place” more generally as “a place to which the public or a group of persons has access.” Tenn. Code Ann. § 39-11-106(a)(29). State v. Frederick, 2015 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Oct. 12, 2015). This definition is so broad that it basically includes everything except your own bedroom closet.
Confused yet? As you can see, this is pretty open to interpretation. For example, what if you and your co-worker were flirting around in the file room at your office and you expose yourself, only to find out that the feeling was not mutual? Since the room is about the size of a closet and the door was closed, you might think, ‘There is no way that this could be considered a public place,’ but according to the statute, it probably would be. My point is that you don’t have to be walking around in a sports stadium with your genitals hanging out to have satisfied the ‘public place’ element of the offense.
Although this language isn’t specifically included in the definition, courts will likely refer to the “reasonable expectation of privacy” distinction to determine whether Fourth Amendment protection applies, and whether a person had an objective, legitimate expectation of privacy. Examples of such places include public restrooms, phone booths, and obviously a person’s home. Katz v. United States, 389 U.S. 347 (1967). The tougher calls are places like your office at work, lockers at school, etc., which most courts have routinely held as public spaces.
Is my car a public place for Indecent Exposure cases?
Probably not, according to a recent Indecent Exposure case, where a police officer observed a defendant wearing only a T-shirt and fishnet stockings, with a spiked leather strap wrapped around his testicles. The defendant was sitting in his car, with the door open, in a Nashville public park.
The defendant argued that since the police officer had to shine his flashlight in defendant’s car to see inside the car, the search should have been ruled as unreasonable.
The appellate court held that the use of the flashlight did not make the search unreasonable. The court also made special mention that the defendant’s car door was open when his genitals were exposed. State v. Eddinger, 112 S.W.3d 148 (Tenn. Crim. App. 2002).
So as you can see, if a person were sitting in the park in the dark and had the door closed, it might have made a bit of a difference, but that’s probably not a chance worth taking.
II. Intentional Conduct Requirement and How Much Is Too Much To Show:
The second thing you need to know about this offense is that you must “intentionally” expose yourself, so if your pants fall down when you remove your belt at the TSA station at the airport, you have not committed a criminal act.
The statute lists “genitals or buttocks,” so mooning someone – even though you thought it would be taken as a silly joke – would meet the requirements of Indecent Exposure.
Are sagging pants enough for a person to be charged with Indecent Exposure?
Not unless you live in Bolivar, Tennessee. (https://www.youtube.com/watch?v=sZrdcQ5aikE)
What if I wasn’t aroused?
You don’t have to be, according to this recent Indecent Exposure case, where a father and his ten-year-old twin daughters were at a Michael’s craft store in Nashville, when the father noticed that a Defendant in an electronic wheelchair stopped at the “end counter” facing where his daughter was standing in the aisle.
The man noticed that the Defendant was facing his daughter’s backside and called his daughter away, but the Defendant returned and was again aimed right at the daughter’s backside.
The man then snuck behind the Defendant, and noticed that the Defendant had his hand under a blanket and down his pants and was rubbing himself while staring at the man’s daughter. Mr. Eggers saw the Defendant’s penis in the Defendant’s hand.
During the trial, the Defendant testified that he had been paralyzed from the chest down for thirty-one years as a result of a motorcycle accident. He said that he had no ability to have an erection since the accident. The Defendant further said that he frequently had urinary tract issues and had to change his catheter frequently.
The Defendant was found guilty, and argued on appeal that the evidence was insufficient to sustain his conviction because the State did not prove that the touching could be reasonably construed as being for the purpose of sexual arousal or gratification or that the Defendant reasonably expected the alleged act or acts to be viewed by another. He questioned whether the father actually saw his penis at all, and further maintained that he is physically incapable of having an erection.
The trial court clearly credited Mr. Eggers’s account of the events, and the appellate court held that the Defendant’s ability to have an erection is not an element of the offense. State v. Little, 2015 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Sept. 28, 2015).
III. Exhibitionists Beware:
The third thing you need about Indecent Exposure is that the statute doesn’t just apply to an individual flashing himself or herself – it also includes situations where two (or more) people are engaging in sexual activity in public. ‘Sexual activity’ does not have to go as far as actual penetration. The statute only requires “sexual contact or sexual penetration.”
When those acts could be reasonably expected to offend the ordinary viewer, or are being displayed for the purpose of sexual arousal and gratification of the defendant, the statutory requirements are met to charge the Defendants with Indecent Exposure. Tenn. Code Ann. § 39-13-511.
What facts can make the charge more serious?
Indecent Exposure is a Class B misdemeanor. The range of punishment for a Class B misdemeanor is “not greater than six (6) months or a fine not to exceed five hundred dollars ($500).” Tenn. Code Ann. § 40-35-111.
There are three heightened versions of Indecent Exposure with additional elements and greater punishments, which include:
If the defendant is eighteen (18) years of age or older and the victim is under thirteen (13) years of age, indecent exposure is a Class A misdemeanor.
The range of punishment for a Class A misdemeanor is “not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500).” Tenn. Code Ann. § 40-35-111.
If the defendant is eighteen (18) years of age or older and the victim is under thirteen (13) years of age, and the defendant has any combination of two (2) or more prior convictions under this section or § 39-13-517, or is a sexual offender, violent sexual offender or violent juvenile sexual offender, as defined in § 40-39-202, the offense is a Class E felony.
If the defendant is eighteen (18) years of age or older and the victim is under thirteen (13) years of age, and the offense occurs on the property of any public school, private or parochial school, licensed day care center or other child care facility during a time at which a child or children are likely to be present on the property, the offense is a Class E felony. Tenn. Code Ann. § 39-13-511
The range of punishment for a Class E felony is “not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000).” Tenn. Code Ann. § 40-35-111.
Could this charge put me on the Sex Offender Registry?
Indecent Exposure will place a criminal defendant onto the Sex Offender Registry as a Sexual Offender, upon a third or subsequent conviction. Tenn. Code Ann. § 40-39-202.
Can I get a diversion on this offense?
If you’ve done some research online (perhaps on my website, which is located at MemphisDiversion.com), then you know that judicial diversion is a wonderful program that allows individuals with little to no criminal background to enter a guilty plea in a manner that avoids future jail time and the eventual expunction of the criminal charge upon the successful completion of a probationary period. Tenn. Code Ann. § 40-35-313.
After the criminal defendant enters a guilty plea, the sentence is suspended and the charge would show on a criminal background check as a pending offense (not a conviction). If the criminal defendant is successful, he or she has achieved the same result as winning at trial.
Indecent Exposure is eligible for diversion.
What defenses are unavailable?
The most obvious defense is that the alleged offense never happened. This offense rarely leaves forensic evidence, so in the absence of eye witnesses, the result of the trial will turn mostly on your testimony (assuming that you testify) in comparison to the testimony of the alleged witness – whoever is more credible will prevail.
There is also a potential defense regarding the elements above, i.e., that it did not occur in a public place. Be aware from the analysis above that the arguments of “You didn’t see my private parts,” “I wasn’t aroused,” “I was covered by a blanket,” and “A reasonable person wouldn’t have been offended by this” are not likely to be successful arguments based on case precedents and common sense.