When Can You Be Charged with Lewdness Under N.J.S.A. 2C:14-4?

Lewdness is a sexual offense.  While a defendant who is convicted of lewdness in New Jersey will not be required to register as a sex offender, he or she will face other serious consequences, including the creation of a criminal record, expensive fines, and a lengthy jail sentence.

If you or one of your loved ones has been charged with lewdness in New Jersey, it is critical to approach the situation with help from an aggressive and experienced defense lawyer.  Call the Law Offices of John J. Zarych right away at (609) 616-4956 for a free, completely confidential legal consultation with our knowledgeable attorneys.  We handle charges in Atlantic City, Egg Harbor Township, Galloway Township, Hamilton Township, Ocean City, Dennis Township, Wildwood, and other communities in the area.

What Are the Grounds for Lewdness Charges in New Jersey?

Under N.J.S.A. § 2C:14-4, there are three reasons a person can be charged with lewdness in New Jersey:

  1. Committing a blatantly “lewd and offensive act” despite knowing or anticipating that the act will be involuntarily witnessed by non-consenting parties “who would be affronted or alarmed.” This is established by N.J.S.A. § 2C:14-4(a).
  2. Exposing one’s genitalia or other “intimate parts” in order to “arouse or gratify” his or her own sexual desires, or another person’s sexual desires, despite knowing or anticipating that the exposure will be witnessed by:
  • A child or children aged 12 or younger. In this situation, the defendant must be at least four years older than the child or children.  This is established by N.J.S.A. § 2C:14-4(b)(1).
  • A person who, due to a mental disorder or intellectual disability, does not understand that the defendant’s behavior is sexual. This is established by N.J.S.A. § 2C:14-4(b)(2).

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How Do Juries Work in a Criminal Case?

In order for a defendant to be convicted of lewdness, the prosecutor must be able to establish, beyond a reasonable doubt, all elements of the offense being alleged.  If the prosecutor is able to establish the necessary facts and elements, the jury must find the defendant guilty.  On the other hand, the jury must find the defendant not guilty, which is called acquittal, if the prosecutor cannot establish these facts and elements.

It is not sufficient for the prosecutor to prove some or even most of the elements of the offense.  All elements must be proven beyond a reasonable doubt in order for the jury to convict.

The jury, which in a criminal case is typically composed of 12 individuals called jurors, does not have absolute power over how and why decisions about the defendant’s alleged actions are made.  Instead, jurors are beholden to strict and explicit instructions from the court.  These instructions, which necessarily vary by offense, go into great detail explaining what the prosecutor must prove.

If the jury is unable to return a unanimous verdict, meaning all jurors cannot agree, it is called a “hung jury.”  In this scenario, one of two things may happen next:

  1. The jury may continue to deliberate the case until reaching an agreement.
  2. The jury may be discharged and replaced with different jurors, meaning the case is retried.

What Must a Jury Believe to Convict the Defendant of Lewdness?

In a lewdness case not involving a victim under age 13, or who has a mental disorder, the prosecutor must prove the following facts in order for the jury to convict the defendant:

  1. “The defendant committed an act which was flagrantly (conspicuously bad) lewd and offensive.”
  2. The defendant knew or expected that he or she would be seen by unwilling parties, including casual onlookers, who would be alarmed or affronted by the defendant’s conduct.

In order to make complete sense of these instructions, one must understand how some important terms are defined:

  • Knowledge — One element of lewdness is that the defendant knew that he or she would be, or reasonably expected to be, observed. Knowledge means the defendant both:
    • Acted intentionally, not accidentally.
    • Acted under circumstances where the defendant knew their behavior “would or was likely to cause alarm to… disinterested, casual, non-consenting spectators who would consider the [defendant’s] behavior as threatening sexual aggression.”
  • Lewd — “Lewdness” specifically denotes “sexually indecent behavior.” This can include, but is not limited to, exposing one’s genitalia.  Lewdness does not include non-sexual obscene gestures, such as using the middle finger.
  • Offensive — Everyone has their own personal ideas about what is and isn’t offensive to them. To create uniformity and minimize subjectivity, jury instructions for New Jersey lewdness charges define an “offensive” act as one which “is grossly vulgar and causing resentment, one which offends common modesty and delicacy.”

If the victim was younger than 13 years old or was suffering from a mental disorder at the time of the offense, different jury instructions apply.

When the Victim is Less Than 13 Years of Age

If the victim of an alleged act of lewdness is 12 years old or younger, the prosecutor must establish beyond a reasonable doubt five distinct elements:

  1. The defendant exposed his or her “intimate parts.”
  2. The reason for the exposure was to “arouse or gratify” sexual desire — either that of the defendant or another person.
  3. The exposure occurred in a situation where the defendant knew or reasonably expected that a child under 13 would observe the exposure.
  4. Confirmation that the child was younger than 13 at the time the offense allegedly occurred.
  5. Confirmation that the defendant was at least four years older than the child.

Again, a few terms must be defined for maximum clarity:

  • Intimate Parts — In addition to genitalia and the area surrounding the genitals (e.g. pubic hair), the term “intimate parts” also includes the:
    • Anal area
    • Breasts
    • Buttocks
    • Inner thighs
  • Knowledge — Part of the charge is that the defendant acted knowingly. A person acts knowingly when he or she “acts consciously, if he/she comprehends his/her acts.”
  • Purpose — Part of the charge is that the defendant acted with purpose to gratify or arouse his or her sexual desires, or those of another person. Because purpose and intent are not visible, the jury must make inferences about the defendant’s objective based on the facts and circumstances at hand.  The prosecutor does not need to supply a witness to establish the defendant’s purpose.

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When the Victim Has a Mental Disorder or Disability

When it is alleged that the defendant’s victim had a mental disability or disorder, the prosecutor must prove elements very similar to those described above, including (1) that the defendant exposed intimate parts, (2) that the defendant acted with purpose to gratify sexual desires, and (3) that the defendant acted knowingly.

The primary difference lies in establishing that the victim was, in fact, disabled as alleged at the time of the offense.  In order to establish this element, the prosecutor must identify the victim’s condition.  Further, the condition must be of such a nature and severity as to render the victim incapable of understanding that the defendant’s actions were sexual.  If the victim did understand the sexual nature of the exposure, all elements of this offense are not satisfied.

What Are the Criminal Penalties for DP Offenses and Indictable Crimes?

Most states describe offenses as felonies or misdemeanors.  New Jersey has slightly unusual terminology, instead using the terms “indictable crime” and “disorderly persons offense” (DP offense), respectively.  While DP offenses are less serious than indictable crimes, defendants should make no mistake: both have the power to result in substantial fines, as well as jail or prison sentences and the imposition of other penalties.

Lewdness is categorized as a disorderly persons offense (misdemeanor) unless the victim was under age 13 or had a mental disability, in which case it is categorized as an indictable crime (felony).  More specifically, it is an indictable crime of the fourth degree (fourth degree felony).  Unlike an indictable crime, a DP offense is simply a DP offense: there is no “degree” or other label to indicate severity.

The penalties for these types of offenses may include:

  • Disorderly Persons Offense
    • Fine — Up to $1,000
    • Sentence — Up to 6 months
  • Fourth Degree Indictable Crime
    • Fine — Up to $10,000
    • Sentence — Up to 18 months

While devastating, the immediate penalties of the fine and sentence are not the only consequences the defendant should be concerned about.  Unfortunately, many people find that their criminal records continue to create problems long after they have repaid their debts to society.  You may find it difficult to get hired, or to be approved for certain types of loans, with a criminal record attached to your name.

If one of your family members has been arrested for lewdness in New Jersey, there’s not a moment to lose.  The prosecutor will not waste any time building their case, which means you cannot waste any time building your defense strategy.  The penalties for a lewdness conviction in New Jersey can be severe, but aggressive legal representation improves your chance of defeating the charges and getting back to your normal life.

Don’t Delay – Contact A New Jersey Criminal Defense Lawyer That Will Fight For You

To set up a free legal consultation with our knowledgeable criminal attorneys, call the Law Offices of John J. Zarych at (609) 616-4956.  Our respected legal team has more than 45 years of experience handling sex offense allegations on behalf of defendants throughout Atlantic County, Cape May County, and the surrounding area.  We will listen with compassion and keep your information confidential.  Se habla español.

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