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By Jill K. Sanders, Esq.

There are some actions which are considered so offensive that they are criminalized. In New York, this includes exposure of intimate parts and other types of lewdness. They are criminalized under Article 245 of the Penal Law and could be punishable by up to a year in jail.

Offenses Involving Exposure and Lewdness

There are several offenses under this section:

• Public lewdness
• Exposure of a person
• Promoting the exposure of a person
• Public lewdness in the first degree
• Offensive exhibition
• Public display of offensive sexual material

Public lewdness involves intentionally exposing private or intimate parts in a lewd manner. In comparison, exposure of a person doesn’t require the act to be done in a lewd way. Offensive exhibition include such acts as holding a person out for ridicule by throwing items at them, among others.

Offenses under Penal Law Article 245 are either violations, B misdemeanors, or A misdemeanors. An A misdemeanor is punished by up to a year in jail, while B misdemeanors carry a shorter possible jail sentence. In contrast, a violation is a mere ticket and is not considered a criminal offense.

Note that despite their nature, offenses under Article 245 do not trigger registration as a sex offender in New York.

Defenses to Exposure Charges

Defenses to charges relating to such offenses are limited. Often times, a defense is whether or not the exposure or lewdness either actually occurred, or whether the person charged was properly identified.

There are also circumstances where exposing private parts may not be illegal. The prime example is if a person is breastfeeding in public. Specifically, a mother who is feeding her child via breastfeeding should not be deemed to be exposing herself or doing anything unlawful. Other defenses lie in the First Amendment. Exposing intimate parts as part of a play or some other type of entertainment may be defendable.

There is also litigation as to what a lewd act may be, as this isn’t specifically defined by statute. Clearly, masturbation would be considered lewd. However, accidentally exposing oneself may be a defense to the criminal charge. Whether the exposure was done with intent that another person observes the exposed part or lewd act could be an important aspect of the criminal case. There is also consideration as to where the act occurred and whether it was in a public space.

Criminalization of “Revenge Porn” in New York

In the summer of 2019, New York criminalized the dissemination of an intimate image. This new offense, Unlawful Dissemination or Publication of an Intimate Image, is often referred to as “revenge porn.”

It involves the sharing of sexually intimate images a class A misdemeanor. Many times, this crime occurs where images are shared consensually during an intimate relationship. Thereafter, the images are distributed or published without the consent of the person in the images.

In the past several decades, it has been easier to both produce and to share such images. Once an image is on the Internet, it can be widely disseminated and may never be erased. The impact on the person depicted in the image could be devastating, both financially and emotionally.

References:

• New York State Senate, “Penal Law Article 245.” Available at: https://www.nysenate.gov/legislation/laws/PEN/P3TNA245 (last accessed Oct. 19, 2021).
• Women’s Justice Now, “Know Your Rights: Revenge Porn.” Available at: https://nownyc.org/womens-justice-now/issues/know-your-rights-revenge-porn/ (last accessed Oct. 19, 2021).