Statute text
(1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency:
(a) An act of sexual intercourse; or
(b) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11, 2010.)
(c) A lewd exposure of an intimate part as defined by section 18-3-401 (2) of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person; or
(d) A lewd fondling or caress of the body of another person; or
(e) A knowing exposure of the person's genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
(2) Public indecency is a petty offense.
(3) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11, 2010.)
History
Source: L. 71: R&RE, p. 453, 1. C.R.S. 1963: 40-7-301. L. 2008: (1)(d) amended and (1)(e) and (3) added, p. 1716, 1, 2, effective July 1. L. 2010: Entire section amended, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3194, 269, effective March 1, 2022.
Annotations
ANNOTATION
Annotations
"[L]ewd fondling or caress" language in subsection (1)(d) refers to lascivious conduct of an overtly sexualized nature, and subsection (1)(d) is not unconstitutionally overbroad. Because subsection (1)(d) prohibits only overtly sexualized behavior in public, it does not reach any constitutionally protected speech or expressive activity. People v. Graves, 2016 CO 15, 368 P.3d 317.
And, because defendant's conduct was clearly proscribed by subsection (1)(d), he cannot claim that the law was vague as applied to him. People v. Graves, 2016 CO 15, 368 P.3d 317.
The plain language of this offense reflects the general assembly's intent to make public indecency a strict liability crime without a culpable mental state. Because this section makes it a crime to perform any of the stated acts where the conduct may reasonably be expected to be viewed by members of the public, it does not matter whether the defendant knew he was in a public place. The objective standard depends on what a reasonable person in the defendant's position should have known. Therefore, the trial court did not err in rejecting a jury instruction that would have required the jury to find the defendant knew he was in a public place. People v. Hoskay, 87 P.3d 194 (Colo. App. 2003).
Department of Youth Corrections teachers, staff, and juvenile residents are "members of the public" under subsection (1). People In Interest of D.C., 2019 COA 22, 439 P.3d 72.
The common area in a prison facility is a "public" area for purposes of subsection (1)(e) because it is used by other inmates and staff. People v. Lopez, 2020 COA 119, 471 P.3d 1285.
Public indecency was a lesser nonincluded offense of indecent exposure where defendant lacked the requisite intent to commit indecent exposure. People v. Lopez, 2020 COA 119, 471 P.3d 1285.