What is indecent exposure?
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What is indecent exposure?
A charge of indecent exposure can be laid if someone deliberately exposes their genitals or nipples to a person under 16 for a sexual purpose. This crime commonly occurs in parks, changerooms or any setting where children can be found.
A separate but related charge is committing an indecent act. This act must be in a public place and in the presence of one or more people, with the intention to insult or offend others.
There is no standard definition of what is an indecent act, which leaves it open for interpretation by police and the court. Examples of indecent acts include public nudity, lewd gestures or acts and sexual conduct in public. Such acts offend public sensibilities and can create a hostile atmosphere that is not conducive to public peace and order.
What is the punishment for committing an indecent act?
Those convicted of committing an indecent act face a maximum two-year jail sentence if the charge proceeds as an indictable offence, with lesser punishments given for charges handled as summary convictions, according to s.173 (1) of the Criminal Code.
What is the punishment for indecent exposure?
Because indecent exposure involves children, this crime carries a harsher sentence than committing an indecent act. According to s.173 (2) of the Criminal Code, those found guilty of indecent exposure face a maximum penalty of two years in jail if the charge is handed as an indictable offence. The crime also carries a mandatory minimum penalty (MMP) of 90 days.
If the charge is handed as a summary conviction, the maximum sentence is six months in jail with an MMP of 30 days.
Those convicted of indecent exposure are automatically included in the National Sex Offender Registry. Along with fingerprints and the person’s name, that registry records identifying features such as scars, vehicle identification and employment information.
The duration of inclusion on the registry depends on the nature and severity of the crime.
With an indecent exposure conviction, the offender may be ordered to avoid locations where children are commonly found, such as parks, playgrounds or schools. They will also not be allowed to pursue any employment involving a position of authority or trust with someone under 16.
Serious social consequences can follow a conviction for either crime, as friends and family may shun that person.
Nudity is not usually indecent exposure
The decision about what state of undress is indecent, and thereby unlawful, is left to the police and the court. While the Code states that a person needs a “lawful excuse” to be nude in a public place, most provinces allow nude sunbathing on designated beaches or full public nudity for events such as Pride marches.
In 1991, a University of Guelph student was arrested for indecency while walking topless on a hot summer day and was convicted of committing an indecent act. That judgement was overturned by the Court of Appeal, which ruled that the act of being topless is not in itself a sexual act or indecent. Courts in British Columbia and Saskatchewan came to similar rulings.
Indecent exposure in Ottawa
In 2017, a 15-year-old male was found guilty of indecently exposing himself to a three-year-old child at his mother’s daycare, a news report states.
It explains the youth was also charged with sexual assault for his actions involving another child, but that charge was stayed since the “teen’s constitutional right to a speedy trial had been violated after he waited 21 months from the time he was charged until a verdict in the case would have been reached.”
The decision to stay the charges relied heavily on the landmark Supreme Court of Canada decision of R. v. Jordan that set a presumptive ceiling for delay of 18 months for cases in provincial court and 30 months in superior court for cases to be completed.
However, the judge allowed the indecent exposure charge to stand since that charge was within the acceptable limit given that it was laid at a later time, the story adds.
Indecent acts in Ottawa
In 2017, a Brockville woman was found guilty of committing an indecent act in a graveyard, according to a news report. It states that she and another woman filmed themselves desecrating the grave of a three-year-old boy.
A video was then sent to the boy’s mother, “in which a person appeared to be urinating on their little boy’s grave,” the story states.
A peace bond resolved the charges against the other woman in this matter, the report adds.
In 2023, an Ottawa man was charged with committing an indecent act in a high school, according to a news report.
The story states the man entered the school during a sports event and exposed his genitals, then ran off after being confronted by a witness.
Defences against these charges
The best defences against a charge of indecent exposure or of committing an indecent act will depend on the circumstances.
It can be shown that you did not expose your genitals, or that you did not know others were watching, especially if you were in a place where you had a reasonable expectation of privacy.
The indecent act must be public. If you were engaged in a sexual activity in a remote parking lot at night it could be argued that you did not intend for others to see you.
As your lawyer, I will also determine if the police violated your rights under the Canadian Charter of Rights and Freedoms during their investigation. If so, I can argue that the evidence collected is inadmissible.
Contact me for advice
Along with possible jail time, a conviction for indecent exposure or committing an indecent act carries a social stigma that may affect your friendships and family connections, as well as work opportunities. If you or a family member are facing these charges you need the assistance of an experienced criminal lawyer. Contact me for a free consultation, in French or English.
