New case limits Essex County Prosecutor's Office options in public exposure cases

Throughout New Jersey, if someone is caught exposing themselves (to another adult), they are usually charged with lewdness. While anyone can be charged with this crime, it is typically man and most of the time, the accusation is that they were exposing themselves to another man. This is due to all of the sting operations at rest areas and other public places where gay men are alleged to frequent. However, Essex County has had a history of charging people with felony charges of criminal sexual contact. I've always thought that this was crazy but since I was able to get the charges dismissed, I never really had the need to challenge it. Well someone did and it looks like this abuse is going to stop. Please keep in mind that I do not condone this behavior, but I am just looking for an even and fair application to the laws as they are written.

In this context, criminal sexual contact requires proof that the touching occurred "for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1d. It is a fourth degree felony and as a result, it can really ruin your life if you are convicted. Lewdness on the other hand is a disorderly person's offense in New Jersey. A person is guilty of lewdness if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed.

In the case of State v. Lee, the New Jersey Appellate Division decided the issue of what constituted touching in these cases and as a result, whether these lewdness cases can rise to the level of criminal sexual contact. The court found that there was clearly no issue about either consent or bodily integrity of the victim. There is no question that the victim did not consent to the alleged conduct of the defendant in the elevator. However, the court found that there was also no invasion of the victim's

personal bodily integrity. While the defendant's conduct was an affront to the victim's mental and emotional sensitivity, and perhaps her psychological health, her body was not invaded and there was no battery.

As a result, the court concluded that, as an element of fourth-degree sexual contact when the touching

is of the actor himself, the phrase "physical force" means a force other than the touching. Thus, where a defendant's sexual contact is with his own intimate parts in view of an adult victim, conviction on a

charge of criminal sexual contact under N.J.S.A. 2C:14-3b and 2C:14-2c(1) requires proof of physical force or coercion beyond defendant's act of touching himself. Without such evidence, exposing oneself does not prove all the essential elements of fourth-degree criminal sexual contact and as result, it is just a lewdness case.

Keep in mind however, that there are circumstances (i.e. where the victim is a young child) that no proof of physical force or coercion under N.J.S.A. 2C:14-2c(1) is required. Anyone convicted of criminal sexual contact for just exposing themselves to an adult should seek the services of a New Jersey criminal defense attorney to see if the conviction should be vacated as a result of this case.

Jef Henninger, Esq. Is an Essex County criminal defense attorney with an office in Clifton, Newark and seven other locations in New Jersey. For more information, visit

http://www.thenewarkcriminaldefenseattorney.com