Posted on January 28, 2025 in Sex Crimes

ARS 13-1403 is the statute that defines public sexual indecency, for which you can face a class 1 misdemeanor or class 5 felony.

If you are facing Arizona public indecency charges, AZ Defenders can represent you. Our experienced sex crimes defense lawyers know how to negotiate with prosecuting attorneys and construct a strong legal defense. 

Call us at (480) 456-6400 to speak with a sex crimes criminal defense lawyer and to set up a free consultation to discuss your legal options.

What is Public Sexual Indecency?

The statutory definition of public sexual indecency reads as follows:

“A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:

  • An act of sexual contact.
  • An act of oral sexual contact.
  • An act of sexual intercourse.
  • An act of bestiality.”

As with many Arizona revised statutes, the terms of the law are subject to specific definitions. For public sexual indecency charges, one of the most important terms to understand is “sexual contact.”

What is “Sexual Contact?”

Another Arizona statute, ARS 13-1401(A)(3)(a), defines sexual contact as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body, or by any object, or causing a person to engage in such contact.” Subsection (A)(3)(b) goes on, “Does not include direct or indirect touching or manipulating during caretaking responsibilities or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances.”

What Else is Required to be Charged with Public Sexual Indecency?

Sexual contact by itself does not trigger the application of the public sexual indecency law. It is the circumstantial nature of that contact that makes the difference, specifically whether it is determined as reckless by another person (i.e., victim and/or witness), in the eyes of a reasonable person, would be offended or alarmed by the act.

  • The sexual contact must be knowing or intentional. Accidentally making sexual contact does not qualify.
  • There needs to be someone else present other than the parties involved in the sexual act. It is not enough to slip into a public park at 2:00 AM when no one else is there; a third person must be present.
  • The conduct must be reckless in that another “reasonable” person would be “offended or alarmed” by the act.

How is Public Sexual Indecency Different From Indecent Exposure?

It can be tempting to confuse public sexual indecency charges with charges of indecent exposure under ARS 13-1402. Although both offenses involve reckless disregard toward another person of reasonable sensibilities, the main difference between the two is that public sexual indecency cases require more than just exposing the genitals, anus, or exposure of the female breast nipple or areola: it requires an act of sexual intercourse or other sexual contact.

Indecent exposure is a class 1 misdemeanor unless the witness is under the age of 15; then, it’s a class 6 felony for a first-time offense.

Legal Penalties for Public Sexual Indecency

A conviction for public sexual indecency can be a misdemeanor or a felony, depending on who the third party witnessing the act is.

  • If the witnessing individual is an adult, then public sexual indecency is a class 1 misdemeanor.
  • If that person is a minor under 15 years of age, then conviction results in a class 5 felony.
  • In the case of felony-level public sexual indecency charges, if the defendant has two or more prior convictions for the same offense in front of a minor or indecent exposure under ARS 13-1402 in front of a minor, then the crime is considered a class 3 felony and the penalties increase.

The table below shows the potential penalties for misdemeanor and felony conviction penalties for public sexual indecency.

Type of OffenseClass of CrimePenalties
Public sexual indecency in front of someone at least 15 years oldClass 1 MisdemeanorJail sentence of up to six months

Fine of up to $2500 with surcharge of 84%

Probation for up to 3 years 
Possible educational and counseling requirements
Public sexual indecency in front of someone less than 15 years oldClass 5 FelonyFirst offense: Probation or a prison sentence of six months to 2.5 years

Second offense: Prison sentence of 1 to 3.75 years

Third offense (if prior felony convictions were for non-sex crimes): 3 to 7.5 years in prison
Public sexual indecency in front of someone less than 15 years old with 2 or more prior felony sex crimesClass 5 FelonyPrison sentence of 6 to 15 years

Additional Possible Effects of a Public Sexual Indecency Conviction

As with many other criminal convictions under Arizona law, court-ordered consequences like jail or prison sentences, fines, and probation are only the beginning of what you can experience. 

A conviction for public sexual indecency remains on your public record, and it can haunt you when you are looking for work, finding a place to live, obtaining or keeping a professional license, or buying or owning a firearm in the state of Arizona (if convicted of felony public sexual indecency).

A first-time conviction for public sexual indecency may also lead to the requirement to register as a sex offender in Arizona.

Defenses to a Charge of Public Sexual Indecency

You are not defenseless when the state charges you with public sexual indecency under ARS 13-1403. Several ways exist to challenge the prosecution’s case against you; an experienced sex crimes defense attorney will know which may apply based on the circumstances of your situation.

Here are some possible defenses that your criminal defense lawyer can consider using for you during plea negotiations or in a jury trial.

Defenses Against the Statutory Requirements of the Crime

The prosecution in a public sexual indecency case must prove beyond a reasonable doubt all elements of the crime. Failure to do so for any one element will defeat the prosecution’s case. Thus, common defenses in negotiations or trial will seek to cast doubt on the prosecution in the following ways:

  • Lack of knowledge or intent on your part, such as being unaware that your sexual activity was being observed.
  • The alleged sex act was not one of the acts listed in the statute.
  • Lack of reckless disregard for the presence of a third person or that person’s sensibilities.
  • The sense of alarm or offense of the person whose presence the act was committed was not reasonable under the circumstances.

Evidentiary and Technical Defenses

The prosecution must be able to support its charges under ARS 13-1403 with credible evidence against you. Pointing out weaknesses in the prosecution’s evidence or how it obtains the evidence are other ways to create reasonable doubt in their case. Some examples of such weaknesses:

  • The police violated your rights under the U.S. Constitution and/or Arizona Constitution, such as failing to properly inform you of those rights or violating them after informing you. Examples include disregarding your right to remain silent or to have counsel present during questioning after an arrest.
  • Inadequate or poorly written police officer reports about the alleged crime.
  • Inadequate investigation conducted by law enforcement.
  • Illegally-obtained evidence against you or unreliability of the evidence, such as mistaken identity or false statements.
  • Mishandling of evidence by the state.

Call AZ Defenders About a Public Sexual Indecency Charge

If you are facing a charge under Arizona’s public sexual indecency statute, then you are facing sex crime consequences that can include a misdemeanor or felony violation on your permanent criminal record and possible registration as a sex offender.

AZ Defenders has multiple criminal law attorneys and over 150 years of combined experience. We’ll do everything in our power to secure the best possible outcome on your behalf.

Every case of public sexual indecency is different, so contact AZ Defenders today at 480-456-6400 or online for a free consultation.

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