Indecent Conduct Crimes in Minnesota
By Thomas C Gallagher, Minneapolis Criminal Defense Lawyer
We see people being charged with “Indecent Conduct” as a crime on regular basis. Normally criminal charges must be filed in a Complaint prepared by a prosecuting attorney. For misdemeanor crimes, police officers are allowed to “tab charge” an accused, subject to later review by a prosecutor. We’ve seen people being charged with “Indecent Conduct” crimes both ways.
Though the charge may say “Indecent Conduct,” the laws being used to prosecute these cases are diverse. It could be a Minnesota Statute, or it could be a local city ordinance. Different sections within the Minnesota Statutes and city ordinances have been used as well. There are some common alleged fact patterns for these cases, which we shall discuss here.
Indecent Conduct in a Public Place (or Private Place)
Minnesota Statutes Section 617.23, subd. 1 creates a misdemeanor crime for a person who willfully and lewdly exposes the person’s body or their private parts, procures another to expose private parts, or engages in open or gross lewdness or lascivious behavior – in a public place or any place where others are present.
Minnesota Statutes Section 609.72, subd. 1(3) “Disorderly Conduct” creates a misdemeanor crime for a person who engages in obscene conduct tending reasonably to arouse alarm, anger or resentment in others – in a public or private place. This statute has been used at times to charge people with “indecent conduct” crimes. Like other “Disorderly Conduct crimes,” the reaction of other people is relevant. This can give rise to a defense – that others were not offended.
Strip clubs, art events and theaters are excepted, or at least have a much different standard for what is considered lewd exposure or “lewdness or lascivious behavior.” Our First Amendment Right to Free Speech and Expression protects what otherwise might be “indecent.”
We have successfully defended nude sunbathers ticketed at an isolated, posted nude beach on First Amendment grounds; and topless female sunbathers on Equal Protection grounds.
Indecent Conduct in the Presence of a Minor under 16
Minnesota Statutes Section 609.3451, subd. 1 “Criminal Sexual Conduct 5th Degree” creates a Gross Misdemeanor crime for “masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.” Note that this one requires “genitals.”
Minnesota Statutes Section 617.23, subd. 2 creates a Gross Misdemeanor crime for a person who – in the presence of a minor under the age of 16 – willfully and lewdly exposes the person’s body or their private parts, procures another to expose private parts, or engages in open or gross lewdness or lascivious behavior – in a public place or any place where others are present.
There are many situations where one’s appearance or behavior may not be considered “lewd” or “lascivious” depending upon context – showering at a health club, for example. Nudity alone is not sexual. Sexuality alone is not “lewd.”
Minneapolis Ordinance Section 385.160, “Indecent conduct” creates a misdemeanor crime:
“No person, in any public place shall engage in, or offer or attempt to engage in:
(a) Lewd or lascivious conduct;
(b) Sexual intercourse or other sexual conduct;
(c) The indecent or lascivious exposure or use of the human body, or any part thereof; or
(d) Fondling the unclothed genitals of himself or herself or another person.”
City ordinances vary, but there are similar ordinances in many cities. In general, city ordinances tend to be more broad, and less Constitutional, as compared to state statutes.
Police have used this ordinance to tab charge a couple making out in a car in a neighborhood targeted for intolerant policing (with racial disparate-impact implications). They have also used these type of ordinances to harass people they suspect of prostitution, but lack evidence for a prostitution charge.
Strip clubs and strippers have been targeted by cities in the past for “Indecent Conduct” types of criminal charges. But theatrical performances are protected to a greater degree by the First Amendment.
Gay Targeting and Police Stings sometimes result in these kinds of criminal charges. The 2007 high-profile case of U.S. Senator Larry Craig appears to be a case in point. Police had set up a “sting” in a men’s restroom at MSP airport to catch men engaging in homosexual activity. This has also been done in adult bookstores over the years.