Designates public lewdness as public lewdness in the fourth degree and establishes the class E felony of public lewdness in the second degree for multiple offenses

Summary of provisions

Section 1 makes a technical amendment to subdivision 3 of section 65.00 of the Penal law relating to sentencing guidelines for those convicted of committing the offense of public lewdness in the fourth degree.

Section 2 amends the Penal Law by renaming the current public lewdness section as Public Lewdness in the Fourth Degree.

Section 3 creates new Penal law section 245.03 Public Lewdness in the third degree. This provides that it shall be a Class "A" misdemeanor for a person to commit the crime of Public Lewdness for the purposes in whole or part of sexual gratification.

Section 4 creates the new crime of public lewdness in the second degree, which is classified as an "E" felony, and defines said crime as occurring when a person commits the crime of public lewdness in the third degree, and having been previously convicted of said crime within the preceding ten years.

Section 5 creates the new crime of public lewdness in the first degree, which is classified as a "D" felony, and defines said crime as occurring when a person commits the crime of public lewdness in the third degree in the presence of a child under the age of fourteen.

Section 6 adds the offenses of public lewdness in the first degree, second degree, and third to those offenses that permanently disqualify an individual from obtaining a school bus driver license under the VTL. The crime constituting public lewdness in the fourth degree, formally just "public lewdness", remains an enumerated offense, permanently disqualifying an individual from obtaining a school bus driver license under the VTL.

Section 7 adds the offense of Public Lewdness in the first degree to the list of registerable offenses under the VTL.

Section 8 provides for an effective date of the first of November after enactment.

Existing law

Current law contains a single crime of Public Lewdness which is a class-B misdemeanor with no registration requirement under SORA and no enhancement if the act is committed against a child.

Justification

A person is guilty of public lewdness when he intentionally exposes the private parts of his body in a lewd manner or commits any other lewd act in a public place, or in private under circumstances in which he may easily be seen and with intent that he be seen. Law enforcement officials have indicated that, in their experience, many perpetrators of public lewdness have a long history of such acts and other sex crimes. In many cases, these perpetrators go on to commit even more serious sex offenses.

Public Lewdness has long been viewed as a nuisance crime. However, according to studies, these types of offenders have the highest rate of recidivism compared to any other sex offender. One study indicates that 24% of exhibitionists reoffend, and 10% graduate to contact sexual offenses, such as sexual touching or sexual assault. Recent crimes in Long Island and Albany, verify this fact.

According to Parents for Megan's Law, the Crime Victims Center in Stony Brook, NY and the Suffolk County police, the recidivism rate of public lewdness offenses as well as the linkage to contact sexual offenses is a serious public safety concern. Certain highly publicized incidents detailed below, including a crime committed in a popular children's restaurant in Long Island and a perpetrator masturbating to a passing school bus in Albany, demonstrate that individuals who have been convicted of public lewdness need more severe penalties especially if they commit the same act again and again or expose children to their obscene conduct.

On February 22, 2012, a repeat public lewdness offender was arrested in a popular children's chain restaurant for touching his private area while standing next to two 12-year-old girls. Records indicate that this offender had ten prior public lewdness offense arrests, committed in public libraries, retail chain stores, a beach, and in the children's section of a well known retail book store, where he was captured on videotape masturbating. Furthermore, in Nassau and Suffolk Counties combined; the offender has five public lewdness convictions, four endangering the welfare of a child convictions and one conviction for stalking.

In another recent incident in Albany, the police responded to a call around 7:00 a.m. by a bus driver transporting children to school. The bus driver reported that a man exposed himself and masturbated to the children on the bus. The driver stated that the man continued to follow the bus on foot and when the bus stopped exposed himself and began to masturbate. Upon arrest, it was discovered that the perpetrator had been convicted for public lewdness several times and was also a level three Sex Offender. Certainly, the repeat intentional and predatory targeting of victims and children is worthy of registration and supervision as a sex offender.

This bill remedies a far too lenient treatment of public lewdness offenders in the law. It raises the penalty for repeat Lewdness offenses and provides a much needed felony offense for perpetrators who prey upon children.

Certainly, the repeat, intentional and predatory targeting of children to commit acts of public lewdness is worthy of registration and supervision as a sex offender. This Bill enhances public safety and the safety of our children.

Legislative history

New Bill

Fiscal implications

None.

Effective date

First of November after enactment.