It is estimated that around 25 percent of Americans have had sex in a public place. Because having sex in public is usually illegal thanks to public indecency laws, this means that most of those people have committed the crime of lewd acts in public -and to some people, that’s part of the thrill. But for others, having sex in a car or other mostly secluded public place isn’t just a way to get a kinky thrill, but the most convenient or secluded place to have a private moment with their partner. That can be the case for parents who can’t find time alone in their house or young people who can’t get away from their roommates. So is having sex in your car illegal? Not always, but usually.
Public Indecency aka Lewd Conduct in Public
The most common crime committed by people who have sex in their car is public indecency, charged under California Penal Code section 647(a) (PC). The law states that this crime occurs when someone “solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” In other words, if someone attempts to get someone to participate in “lewd conduct” or if they actually participate in such behavior, they can be charged with the crime.
In this statute, lewd conduct is defined as “willfully solicited or engaged in the touching of your own or another person’s genitals, buttocks, or breasts in order to sexually arouse or provide sexual gratification to yourself or someone else or in order to annoy or cause offense to others.” So it’s important to note that any contact with genitals must be sexual or at very least intentionally made to annoy or offend someone else, so an accidental brush against someone’s butt wouldn’t count.
Is it Legal to Have Sex in Your Car in California?
Obviously, having sex is done for the purpose of sexually arousing and gratifying at least one of the two parties involved, so this part of the law is met automatically in most cases. That being said, if a couple was caught by the police with one person holding the other’s penis, it could theoretically be argued that the other one could be touching it for a non-sexual purpose, such as checking for an infection or looking at a mole to see if it looks dangerous.
Since the conduct in these cases is generally unarguably sexual though, then the matter comes down to whether or not the couple was in public or private. Simply being on private property isn’t enough, because the law still considers it illegal if you are within public view. So if you have sex in your driveway and people can easily see you in your driveway, it’s still against the law.
That being said, the California Supreme Court has said that the nature of the law is for the purpose of “protecting onlookers who might be offended by the proscribed conduct.” So if you are in the middle of the desert and you haven’t seen a single person around for the last hour, you could reasonably have sex in public without technically violating the law, whether the activity takes place in your car or elsewhere.
Similarly, because the crime relies on whether or not someone could realistically see you, if you are in a van with curtains over the windows or you take the effort to cover up all of your vehicle’s windows before engaging in the activity, you should be protected from a legal perspective because you took efforts to ensure you were not in public view. The same applies if you made love in a zipped up tent.
What About Indecent Exposure?
Another charge some people associate with sexual activities in a car is the crime of indecent exposure, charged under California Penal Code section 314 (PC). But unless you’re actually trying to get people to see you while you are engaged in sexual activities, you haven’t violated this law since this crime requires someone to attempt to bring attention to their genitals for the purpose of sexual arousal or to annoy or offend someone. So if you’re trying to keep your genitals concealed from the public at all, then you haven’t really committed indecent exposure.
In fact, you’d be more likely to face indecent exposure charges if you mooned or flashed people from your car window than if you discreetly tried to have sex in a parked car. Of course, if you’re on a busy street and get butt naked before getting it on in the backseat, then you could absolutely be charged with the crimes of both indecent exposure and lewd conduct in public.
What About Reckless Driving?
It’s worth mentioning that if you got “road head” or had any other type of sexual interaction while driving, you could be charged with reckless driving as well. This charge would not only depend on the activity going on in your car, but also where and how you were driving. For example, if you were driving on an empty freeway and seemed to be breaking no other driving laws, it would be more difficult for the prosecution to argue that you were driving in a reckless manner, but if you were in a suburb and ran a stop sign, they would have a much stronger case.
What About the Penalties?
The good news is that all of these crimes are misdemeanors. The bad news is that they are still very serious and could leave you behind bars if you don’t work with an experienced criminal defense attorney familiar with both sex offenses and driving crimes. In California both lewd conduct in public and indecent exposure can result in a six month jail sentence and $1,000 in fines. If convicted of indecent exposure, you will be required to register as a sex offender, which is why your defense attorney may work to have the charges plead down to lewd conduct in public if you have been accused of indecent exposure because it does not require sex offender registration.
Reckless driving is also a misdemeanor and carries only a maximum sentence of 90 days, but it can also result in the loss of your driving privileges and your vehicle being impounded.
Fighting Criminal Public Sex Accusations
The bottom line is that if you crave a little more intimacy in your relationship, you can have sex in your car or in public, as long as you’re actually out of site in a protected area like a tent or in a car with covered windows. If you are charged with a crime related to any type of sexual activity though, it is critical you contact a criminal defense lawyer as soon as possible though because while there are many defenses to these crimes, there are also many ways to harm a potential defense by saying the wrong thing.
If you have been accused of participating in any type of public sex act in California state, please contact attorney Peter M. Liss to discuss your case in a free initial consultation. Please call (760) 643-4050 to discuss your case as soon as possible.