Different people have different standards of what being obscene is. The state of Virginia defines obscenity according to code 18.2-387. The state criminalizes obscene sexual display, and the offense is punishable with jail time and a fine. The consequences of the crime are severe, requiring a person to register as a sex offender. Many people can be wrongly accused of the offense and suffer consequences that are not fair to them.

When charged with this offense, you need to engage a lawyer to fight the allegations against you and avoid wrongful convictions. We invite you to contact our criminal defense lawyers at Virginia Criminal Attorney if you are facing allegations of obscene sexual display. We are experienced in defending people who are facing sex crimes charges throughout Fairfax and the Northern Virginia area.

Understanding Obscene Sexual Display According to Virginia Code 18.2-387.1

The law in Virginia prohibits a person from engaging in actual or acts that simulate masturbation in public. This law goes hand in hand with that of indecent exposure. If a person is found masturbating in public, it is an offense punishable by the law. When you are charged with this offense, other related crimes may also be accused like that of indecent exposure.

This law prohibits a person from:

  • Touching themselves in a sexually obscene manner or asking someone to touch them like that and
  • This is done in a public place or a place where the public can see you or
  • Carrying out the obscene sexual display act where there is another person offended by the behavior.

Proving Obscene Sexual Display

When you are charged with this offense, a prosecutor must prove certain elements beyond any doubt. These are:

  • Willfully – You carried out the act willingly or purposely by
  • Touching yourself or asking another person to touch your breasts, genitals or buttocks and
  • You did it for sexual gratification or arousal or even to annoy another person
  • The act was carried out in public or a place open for the public to see
  • The act was carried out where another person might have been annoyed by the behavior and quickly noticed it or
  • You carried out the act when you knew another person was present, or there was the possibility of another person being present.

For instance, a couple goes to a movie theatre, and as the movie is going on, they begin to fondle each other. The man opens the girlfriend's shirt and exposes her breasts as they touch them, and they proceed to touch each other's genitals for sexual pleasure.

A movie theatre is a public place where others are present, which is well known to the offenders. The behavior is likely to annoy other people in the theatre, and the offenders are doing it intentionally or willfully. This couple will be arrested and charged with obscene sexual display according to code 18.2-387.1.

Penalties for Violating Code 18.2-387.1

Once arrested for the offense, you will face misdemeanor charges. The obscene sexual display is a class one misdemeanor in Virginia. When the prosecutor proves the elements discussed above, the offender is convicted of the offense.

A conviction will have the defendant jailed for a year as well as a fine of $ 2,500 or less. The judge can, however, decide to punish the defendant with either the jail time or the fine. This usually depends on the circumstances of the offense and the strength of the prosecutor's case.

Legal Defenses for Virginia Code 18.2-387.1

When faced with these charges, it is best to hire a lawyer to defend you against wrongful convictions. Your lawyer will discuss the circumstances of the offense and arrest and come up with valid defenses in your favor. Some of the arguments that will be used by your lawyer include:

You Did Not Engage in the Behavior You Are Accused of

This is one of the common defenses in this case. The prosecution is usually burdened with proving to the court that you were involved in obscene sexual display. This offense can be challenging to determine unless there was a recording of you engaging in the act. A witness statement can also be taken as their word against yours, which is not evidence enough.

You Touched Yourself, or Another Person Touched You But Not For Sexual Gratification

There are many reasons one can touch themselves. The prosecution has the burden to prove that the touching was in line with masturbation to be gratified sexually. If your genitals itched, rubbing them to ease the itch is in no way an obscene sexual display.

You Had Reason To Believe No One Was Present That Would be Offended by Your Behavior

One of the elements in proving this offense is that there was a person present that would have been offended. The prosecution must prove that you were aware there was another person that would have been annoyed. If you went to a secluded place and believed you were alone as you sexually touched yourself or another person did, you are not guilty of violating code 18.2-387.1.

The Act was Not Committed in a Public Place

For you to be convicted of the offense, you must have done it in a public place. For instance, you are in your backyard that is well fenced with your girlfriend relaxing. Then as you talk, you decide to touch each other believing you are in your private residence. A delivery person comes through the backyard looking to check if there is someone and finds you touching each other sexually. He decides to report you for obscene sexual display.

If this were the case, your lawyer would argue that you were in your private home and were not publically engaging in obscene sexual display. This argument, when accepted, will mean that you are not guilty of the offense, although it annoyed the delivery personnel.

The Police Entrapped You

When an officer wants to arrest individuals that would engage in an obscene sexual display, they may do that by inducing a person to commit the offense. It is unlawful for law enforcement officers to harass, seduce, or use threats to get a person to commit a crime they would not have committed otherwise.

For instance, a female police officer undercover can go to a place suspected to have persons that engage in this behavior. She sees a man and starts engaging him in a conversation inviting him to sexual activity. She goes ahead and tells him no one would find them, and there are no people nearby. The otherwise innocent man falls for the trap. And as soon as he agrees to be touched sexually, he is arrested for the crime.

Entrapment is illegal. Your lawyer could convince the court of the circumstances of the arrest and have the charges against you dropped if this happened to you.

Indecent Exposure (Virginia Code 18.2-387) Vs. Obscene Sexual Display

This law makes it a criminal offense for a person to engage in sexually offensive acts or expose themselves indecently in others' presence. A conviction for this offense will see the defendant face jail time and a hefty fine.

Understanding Indecent Exposure

According to the law, people are perceived to have indecently exposed themselves when they intentionally expose their intimate body parts where others can see them. This is the case when they are in a public place, or there are people present where they commit it. A person can also be charged with this offense if they get another person to expose themselves indecently. However, a breastfeeding mother that breastfeeds their child in public cannot be accused of indecently exposing themselves.

A public location, according to the statute, is where one can foresee another person that would not approve of the behavior witnessing their exposure. Some of the activities in indecent exposure are:

  • Exposing or displaying your buttocks, genitals or breasts
  • Having sexual intercourse in public

Linking Obscene Sexual Display and Indecent Exposure

The obscene sexual display involves a person touching themselves or asking another to touch them sexually in a public place. This activity is mostly associated with public masturbation for sexual gratification. When one is accused of an obscene sexual display, they will, in most times, be charged with indecent exposure. For a person to masturbate in public, they may have to expose their genitals. They will be prosecuted with indecent exposure if they do so.

Proving Indecent Exposure

When charged with indecent exposure, the prosecution must prove you committed the offense beyond doubt to get a conviction. The prosecutor must prove the following facts of the crime:

  • That the defendant willfully or purposely exposed their private body parts
  • And they did that where another person that would get offended of their actions was present and
  • They wanted the public to pay attention to their genitalia or behavior.

When a person is accused of indecent exposure according to the offense's elements, they must have done it willingly. The prosecutor must prove the person did it intentionally and was not coerced into it. When a person acts willfully in this case, it does not mean they intended to break the law.

For instance, when you are in a public park with your boyfriend and caress each other, should your breasts be exposed or your buttocks, you can be charged with indecent exposure. The statute also talks about having sexual intercourse in a public place. If a person is caught having sex in a park, inside a bus or train, at a parking lot, or in an alley, they will be charged with the offense. In such a case, the prosecutor will have to show it was a consensual and willful act from both parties.

The prosecutor must also prove that the behavior or act happened in a public place where other people saw or could have seen the perpetrator's private body parts.

Proving indecent exposure can be challenging for the prosecutor unless photos or a video are showing the defendant exposing themselves indecently.

Penalties for Indecent Exposure in Virginia

Just like in obscene sexual display, the offense is a class one misdemeanor. When convicted of the crime, the defendant is likely to face a one-year jail sentence. This is in addition to a fine of $2,500 or less. Sometimes, a judge on evaluating the case can sentence the defendant to either jail time or fine and not both.

Some factors would, however, aggravate the offense and get the defendant to face harsher penalties. If one is charged with indecent exposure and intentionally did it in the presence of a child below 15 or asked the child to expose their private parts, the offense becomes a felony. When the charges are successfully brought against the defendant, and he or she is convicted, the penalties are harsher. In such a case, the defendant will face ten years imprisonment or less in addition to a fine.

Being a repeat offender can also aggravate your penalties. When the prosecutor presents your criminal past in court, and it is found that it is not your first indecent exposure charge, a conviction will result in harsher penalties.

Legal Defenses for Indecent Exposure

When charged with this offense, engaging a lawyer to formulate defense strategies for you is essential. Upon examining the prosecutor's evidence and the circumstances of the crime, your lawyer will have several defenses to help with your case. The arguments used are similar in this case because of the similarity between indecent exposure and obscene sexual display offenses.

Registration as a Sex Offender

One of the significant consequences of a person convicted of indecent exposure is the requirement to be registered as a sex offender. The registration is mandatory, and the record is public, meaning anyone can access it. This can be embarrassing to a defendant having your family, colleagues, friends, and others knowing you are a sex offender.

When you are registered as a sex offender, it can be frustrating to find a job or a place to stay. A record will also mean you are prohibited from being in a place where children are or frequent. Additionally, you will be under constant monitoring by the police.

According to code 9.1-902, the state of Virginia requires a person charged with indecent exposure to register as a sex offender. It is almost impossible to charge a person with an obscene sexual display without charging them with indecent exposure. This means a person found guilty of the obscene sexual display is likely to be registered as a sex offender.

When One Fails to Register as a Sex Offender

When required to register as a sex offender and one fails, it is an offense in Virginia. Giving false information as one registers is also an offense. When a defendant fails to register as a sex offender, they will be charged with a class one misdemeanor. The penalties for the crime are up to a year in prison and a fine of $2,500 or less. The judge can also decide to sentence the defendant to pay a fine only or a jail time instead of both penalties.

If you are convicted of indecent exposure again and fail to register as an offender, you will be prosecuted on a class six felony. A conviction will see you serve six years of prison time.

Expunging Your Record from the Registry

It is not automatic and will depend on the nature of the offense one committed to having your record deleted from the sex offender's registry. Most people are eligible for expungement after serving their sentence for several years. Your lawyer must, however, file a petition requesting your removal from the sex offender's registry.

It is not, however, a right for a person to have their records expunged from the registry. Before the court considers the petitioner's request, he or she must complete all the treatments ordered by the court and counseling. He or she must also pay all the fines and prove that they are changed and will not commit such a crime. Some offenders may not be removed from the registry because of the nature of their offense.

For a petitioner to be eligible to have their record removed from the sex offender's registry in Virginia according to code 9.1-910, they must:

  • Not having obtained a conviction due to a violent sex offense – Virginia has two types of sex offenders: violent and those that are not. A person convicted of a violent sex offense will not have their record removed from the sex offender's registry. Obscene sexual display or indecent exposure is a nonviolent sex offense. This means that when you complete your sentence, you can petition the court to have your record removed from the registry.
  • Not have two offenses or more that require them to be registered. This means, if you are charged with obscene sexual display alongside another offense that requires you to register as a sex offender, you will not have your record expunged. In this case, it does not matter if the crimes were nonviolent as long as they require registration.
  • Have attended and completed counseling, paid restitution or fines by the court and treatment as ordered. Some of the penalties may not be jail sentences when you are convicted of obscene sexual display or indecent exposure. If you have not paid the fines or other charges ordered by the law, you will not qualify to have your records expunged.
  • Have waited for fifteen to twenty-five years from when you were registered to have your record deleted from the registry. Obscene sexual display and indecent exposure are nonviolent offenses, and one must have fulfilled the registration requirements for fifteen years to have their record deleted. Some convictions may, however, take longer to qualify for expungement. For instance, if you involve a child in an obscene sexual display, it will take you twenty-five years to be eligible for expungement.

Being registered as a sex offender for your obscene sexual display offense or indecent exposure could be one of the most significant consequences. The requirement to register as a sex offender can destroy your career, relationship with family and other members of the society. This makes it crucial to have a lawyer aggressively defend you against these allegations and avoid a conviction.

The Process of Getting an Expungement from the Sex Offender's List

Once you are qualified to have your name out of the sex offender's list, there is a process you and your lawyer need to follow. This process includes:

Filing a Petition

Once your lawyer verifies that you are qualified to be removed, they will file a petition at your current jurisdiction. A sex offender is required to register at the jurisdiction where they live. Even when you committed the offense in another jurisdiction and moved, the law requires you to register in the new place.

Allow the Court to Review

Once the petition is filed, the court will need time to review the request. Your criminal background will be considered, with more emphasis on any sexual offenses and your history of registration. If the court finds that you are eligible, a hearing will be scheduled.

Prosecutorial Discretion

After the court schedules for a hearing, the prosecutor may protest your removal from the register. The prosecutor may file a petition in court asking that you are not removed. Your lawyer must be prepared for this and fight against the prosecutor's request.

Attend the Hearing

At the hearing, your lawyer will convince the court by show of testimony that you are changed and not a danger to the society. They would also have witnesses that would testify to your character. The prosecutor, on the other side, will protest this and will be required to prove that you are a danger.

If you win the hearing, your lawyer will help you communicate the same to the local law enforcement units and have your record removed from the registry. If the court denies your petition, you will be required to wait for two years before filing another petition.

Find a Fairfax Criminal Defense Attorney Near Me

Allegations of obscene sexual display might be an embarrassing encounter, especially to your family and profession. You might also find yourself facing further charges of indecent exposure under code 18.2-387, which would bring additional penalties. Don’t overlook these charges since sex-related offenses carry far-reaching consequences that can damage your reputation. Instead, hire an expert criminal defense attorney as soon as possible to help you fight these allegations. If you are looking for a criminal defense attorney out of Fairfax and the Northern Virginia area, get in touch with the Virginia Criminal Attorney today at 703-718-5533. We are available 24/7 to talk to you since our clients are our priority.