2010 Changes to Colorado’s Indecent Exposure and Public Indecency Laws

In 2009, The Denver Post pointed up the absurdity of the laws in effect at that time:

BOULDER — A 69-year-old man is caught masturbating behind a dumpster at the University of Colorado in 2006. He was ticketed for public indecency, a petty offense carrying a punishment slightly harsher than littering.

A 46-year-old man was found shirtless, drunk and urinating on the side of the road in east Boulder County the same year. He was ticketed for indecent exposure, a Class 1 misdemeanor that carries mandatory registration as a sex offender, if convicted.

Public nudity in Boulder isn’t exactly uncommon: Last year, more than 60 cyclists biked bare to protest oil-burning cars; a CU student ran naked across campus while tripping on acid, and another, also tripping, jumped naked out of a car and rolled around in the street; a 55-year-old man took several nude jogs along Folsom Street; and a teenager streaked the Boulder-Fairview football game.

But how the nude offenders are ticketed by police — if they are ticketed at all — can vary widely, resulting in either a relatively minor offense or life-changing registration as a sex offender.

In the wake of last year’s naked pumpkin run, when a dozen “Naked Pumpkin Runners” were ticketed for indecent exposure on Halloween, public frustration with Colorado’s nudity laws came boiling up. Now, the American Civil Liberties Union is lobbying for changes that would keep streakers off sex-offender lists and protect nudity as a constitutionally sheltered freedom of expression.

“We are trying to make changes at the state level,” said Judd Golden, who chairs the Boulder County chapter of the ACLU. “We are very concerned about the way in which the Colorado sex-offender registry is set up, resulting in sex-offender status for these kinds of activities.”

H.B. 10-1334 Indecency crimes – public indecency – indecent exposure – public masturbation. Under current law, a public act of masturbation is a crime under the public indecency statute and is a class 1 petty offense. The act includes an act of masturbation in the view of a person under circumstances in which the conduct is likely to cause affront or alarm to the person in the description of the crime of indecent exposure, a class 1 misdemeanor.

The new law removes an act of deviate sexual intercourse from the crime of public indecency, and expanded the definition of the crime of public indecency, which is a class 1 petty offense, to include knowingly exposing one’s genitals in a way that is likely to cause affront or alarm to another person.

If a person has been previously convicted of that same act of public indecency, the act raises the penalty from a class 1 petty offense to a class 1 misdemeanor.

The 2010 changes also expands the definition of the crime of indecent exposure to include exposing one’s genitals in public with the intent to arouse or satisfy the sexual desire of any person.

The act adds a subsequent conviction within 5 years or 3 violations of the crime of public indecency involving exposure of the offenders genitals to the definition of “unlawful sexual behavior” for purposes of the sex offender registration statutes and the definition of sex offense for sex offender treatment purposes.

Most importantly a person would not longer be required to register as a sex offender after his or her first conviction for an act of public indecency. Instead, indecent exposure would not be considered a sex offense or unlawful sexual behavior requiring mandatory sex offender registration under Colorado law unless the individual had been convicted of a second charge of indecent exposure within five years of the first conviction, or upon a third or greater conviction.

In 2010 the Colorado General Assembly addressed several bills regarding increased penalties and new crimes. House Bill 10-1334 changes the criminal statutes concerning public indecency and indecent exposure in the following ways:

• moves masturbation from the statutes governing public indecency to the statutes governing indecent exposure;
• moves the knowing exposure of a person’s genitals with the purpose of causing affront or alarm from the statutes governing indecent exposure to the statutes governing public indecency;
• makes a subsequent offense of exposing a person’s genitals with the purpose of causing affront or alarm a class 1 misdemeanor and unlawful sexual behavior under the Colorado Sex Offender Registration Act; and
• makes the exposure of a person’s genitals with the intent to arouse or satisfy the sexual desire of any person part of the indecent exposure statute.

Public indecency is a class 1 petty offense and indecent exposure is a class 1 misdemeanor

Here are the Colorado Redrafted Laws that resulted from HB: 1334

1. A person commits indecent exposure:
   1. If he or she knowingly exposes his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person;
   2. If he or she knowingly performs an act of masturbation in a manner which exposes the act to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
2. 1. (Deleted by amendment, L. 2003, p. 1435, § 31, effective July 1, 2003.)
   2. Indecent exposure is a class 1 misdemeanor.
3. (Deleted by amendment, L. 2002, p. 1587, § 21, effective July 1, 2002.)
4. Indecent exposure is a class 6 felony if the violation is committed subsequent to two prior convictions of a violation of this section or of a violation of a comparable offense in any other state or in the United States, or of a violation of a comparable municipal ordinance.
5. For purposes of this section, “masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own genitals or pubic area for the purpose of sexual gratification or arousal of the person, regardless of whether the genitals or pubic area is exposed or covered.

Subsection (1) provides a sufficiently clear standard of conduct, and application of the statute of the defendant’s conduct did not deprive him of due process of law. People v. Randall, 711 P.2d 689 (Colo. 1985).

Elements of offense not satisfied simply by proof that defendant was naked. A person must do something that would make his or her genitals visible to another person. People v. Barrus, __ P.3d __ (Colo. App. 2009).
Subsection (4) is a sentence enhancer, not a substantive offense. Therefore, the prosecution must prove the prior convictions to the court, not the jury. The burden of proof to the court is preponderance of the evidence. People v. Schreiber, __ P.3d __ (Colo. App. 2009).

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:
   1. An act of sexual intercourse; or
   2. (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, § 1, effective August 11, 2010.)
   3. 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
   4. A lewd fondling or caress of the body of another person; or
   5. 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. 1. Except as otherwise provided in paragraph (b) of this subsection (2), public indecency is a class 1 petty offense.
   2. Public indecency as described in paragraph (e) of subsection (1) of this section is a class 1 misdemeanor if the violation is committed subsequent to a conviction for a violation of paragraph (e) of subsection (1) of this section or for a violation of a comparable offense in any other state or in the United States, or for a violation of a comparable municipal ordinance.
3. (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, § 1, effective August 11, 2010.)

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).

Additionally, a person would not be required to register as a sex offender after his or her first conviction for an act of public indecency. Instead, indecent exposure would not be considered a sex offense or unlawful sexual behavior requiring mandatory sex offender registration under Colorado law unless the individual had been convicted of a second charge of indecent exposure within five years of the first conviction, or upon a third or greater conviction.