Lewdness

Lewdness Laws and Legal Issues

Lewdness laws aim to prohibit public indecency and protect public morals. However, these laws are controversial and raise complex legal issues involving free speech, discrimination, and enforcement. This article provides an overview of lewdness laws and analyzes some of the key legal debates surrounding them.

What is Lewdness?

Lewdness refers to obscene, indecent or sexual behavior in public. Lewdness laws vary by state, but generally prohibit:

• Public exposure of private parts
• Public urination or defecation
• Public masturbation
• Public sex acts
• Offensive touching of oneself sexually
• Appearing in public in a state of undress

Many lewdness laws also prohibit “open and gross lewdness,” which covers more subjective behavior like using obscene gestures or language in public[1].

Constitutional Issues

Critics argue lewdness laws are unconstitutionally vague and violate free speech rights[2]. The Supreme Court has upheld public indecency laws, but placed limits on their scope.

In Cohen v. California (1971), the Court overturned a conviction for disturbing the peace for wearing a jacket with an obscene anti-draft slogan, ruling this was protected free speech[3]. However, the Court upheld a ban on full nudity in public in Barnes v. Glen Theatre (1991), though there was no majority opinion on the rationale[4].

Lower courts have struck down laws for being too broad or discriminatory in application. For example, a federal court ruled Louisiana’s law was unconstitutional because it prohibited lawful activities like breastfeeding and wearing swimsuits[5].

Public Urination and “Quality of Life” Crimes

Many lewdness citations involve public urination, especially by homeless individuals who lack access to restrooms. Advocates argue community urination should be a public health issue, not a crime. There are concerns over selective enforcement against minorities and the homeless.

Related “quality of life” ordinances that criminalize loitering, sleeping in public or begging have also faced legal challenges. In Jones v. City of Los Angeles (2006), the 9th Circuit struck down a law prohibiting sitting, lying or sleeping in public at certain times.

Critics argue these laws further marginalize vulnerable populations instead of addressing root causes like lack of shelter or restrooms. Some cities have introduced public restroom and housing programs as alternatives.

Gender Discrimination Concerns

Many lewdness laws are written in gender neutral terms, but critics argue they disproportionately target women. Bans on public breastfeeding have faced particular scrutiny.

While many states exempt breastfeeding from public indecency laws, challenges persist. In 2019, a Colorado judge ruled Fort Collins’s public nudity ordinance was unconstitutional for prohibiting female toplessness where male toplessness was allowed.

However, courts have upheld other gender-specific indecency laws. In Buzzetti v. City of New York (1998), the 2nd Circuit ruled a law banning exposure of female – but not male – breasts did not violate equal protection.

The Impact on Sex Workers

Lewdness laws are often used to target sex workers. Loitering laws allow police to arrest sex workers just for appearing to solicit customers. Advocates argue criminalization makes sex work more dangerous and does not curb demand.

Some jurisdictions have introduced reforms to curb profiling, like New York City disbanding its Anti-Vice squad. However, sex worker advocates argue decriminalization is needed to fully protect sex workers’ rights and safety.

Enforcement Controversies

Lewdness laws grant police significant discretion, raising concerns over discriminatory enforcement and abuse.

Controversial police stings include undercover officers soliciting gay men for sex in public restrooms, then arresting them on lewdness charges. Critics argue these operations discriminatorily target LGBTQ individuals.

There have also been lawsuits over police officers manipulating detainees to perform lewd acts then charging them. A federal court ruled an Arizona sheriff’s office engaged in unconstitutional conduct through a “scheme to entrap persons into exposing themselves”.

The Bottom Line

Lewdness laws seek to enforce public morality, but often raise issues of discrimination, overcriminalization of marginalized groups, and subjective or arbitrary enforcement. Communities must weigh the costs of criminalization against alternatives like public health programs.

There are good faith arguments on both sides – some view lewdness laws as legitimate public order measures, while others see them as puritanical or prone to abuse. Ultimately, a just system will require nuanced laws that balance rights, avoid discrimination, and provide alternatives to criminal penalties.