Understanding the Legal Implications of Indecent Exposure

Indecent Exposure – What is the Sentence?

Indecent exposure, sometimes known as ‘flashing’, is a serious sexual criminal offence, which carries a custodial sentence of up to 2-years at its most severe.

This article will cover what elements constitute the offence, how the offence will be sentenced and what factors make a matter more or less serious.

Should you be under investigation or charged with an offence of indecent exposure, it is important to seek legal advice at the earliest possible opportunity to help achieve the best possible outcome for you. Our expert sexual offence solicitors are on hand to provide you with non-judgmental, clear and honest advice about your individual case and circumstances.

Elements of the Offence

The offence of indecent exposure is made out very simply.

A person commits the offence if they intentionally expose their genitals, and by doing so intends that someone will see them and be caused alarm or distress.

This is broken down into two parts:

1. Intentionally exposing their genitals;
2. Intending that someone will see them and be caused alarm or distress

We explain these two parts to give a clear understanding of what each part means and how it is committed.

• Intentional exposure of genitals

The term ‘genitals’ is not defined within the Sexual Offences Act 2003, but is taken to mean external sexual or reproductive organs. This means exposing one’s penis, testicles, or vagina. Exposure of other bodily parts which could be considered sexual, would usually be charged under outraging public decency or other offences.

• Intending that someone will see them and be caused alarm or distress

As above, intending that someone will see them, means exactly that. This offence is rather straightforward in its construction.

Alongside this, you must also intend for that person to be caused alarm or distress as a result of the exposure. The meaning of ‘alarm or distress’ is not defined in the Sexual Offences Act but is taken to have an ordinary meaning of ‘fright, trouble, pain, anguish or hardship’.

Sexual Gratification, Naturism or Accidental Exposure

Where exposure is committed for sexual gratification one may not intend to cause alarm or distress by their exposure. In these circumstances, police may still investigate you for alternative offences such as outraging public decency. As a result, there is some controversy surrounding the practice of naturism, the espouse of nudity in one’s daily life. The International Naturist Federation argues this practice is not for sexual gratification, but rather a feeling of freedom. As such, arguing against an intention to cause alarm or distress.

Specific Crown Prosecution Guidance on this subject can be found here. This discusses the balance of a person’s right to freedom of expression and public protection. The CPS guidance on the matter suggests that ‘in the absence of any sexual context, and in relation to the nudity, where there is no intention to cause alarm or distress, it will normally be appropriate to take no action, unless the public were actually caused alarm or distress’. This somewhat changes the ambit of the offence, making the ‘alarm or distress’ test subjective to the complainant, as opposed to what the perpetrator intended. However, this is limited to niche circumstances such as naturism.

With respect of accidental exposure, as the offence is one of specific intent, you must intend to expose your genitals. Therefore, accidental exposure, such as your trousers falling down would not make out the offence.

Sentencing

If you are found guilty of indecent exposure, there are a number of disposal options available to the court.

Two factors affect the sentence that will be imposed, and whether this will be a custodial one or not. These are the ‘harm’ caused by the offending and ‘culpability’ of the offender. This places an individual in a category on which they are sentenced:

Category 1: Raised harm AND raised culpability

Category 2: Raised harm OR raised culpability

Category 3: Cases without raised harm or raised culpability

Harm

There are two factors which the court would take as raising harm:

1. Following or pursuing the victim;
2. Masturbation

Culpability

When it comes to culpability, a number of factors are present:

1. Specific targeting of a vulnerable victim (which often includes vulnerability based on being a child);
2. Abuse of trust;
3. Use of threats, including blackmail;
4. Racial or Religious aggravation;
5. Motivated by or hostility towards victim based on sexual orientation or identity;
6. Motivated by, or hostility towards victim based on disability or presumed disability.

Category 1

Category 1 offences are the most severe and these cases will almost certainly result in a custodial sentence.

This top bracket offence occurs where there is raised harm and culpability. As such, the court will

take a starting point of 26 weeks custody. This has a range of 12 weeks custody at the lower end to 1 year custody at the top end.

The maximum sentence for this offence is 2-years imprisonment. It would only be in exceptional circumstances for a case to go above the top of the category 1 range.

Category 2

Category 2 offences occur with either raised harm or culpability. With more severe Category 2 offences, a custodial sentence will still be imposed. However, a starting point of a High-Level Community Order is taken.

The court will assess whether the custody threshold is passed in Category 2 case. They will also assess whether it is unavoidable that a custodial sentence is passed and whether it can be suspended.

Category 3

Category 3 offences occur when there is not raised harm or raised culpability. In cases with neither raised factor, the court will take a starting point of a Medium-Level Community Order, with a range of a Band A fine and High-Level Community Order.

Movement within a Range

Whether a case will be sentenced to the starting point of a range is dependent on whether there are aggravating or mitigating factors present.

Where aggravating factors are present, these would raise the sentence from the starting point. Equally, mitigating factors would bring the sentence down from the starting point. A combination of both factors will be balanced, if they are present.

Will I be required to sign the Sex Offenders’ Register If I am Convicted?

If you are convicted of indecent exposure, you will likely be subject to notification requirements of the Sex Offenders’ Register. The term of this registration will depend on the type or length of sentence imposed.

Where a person is given a community order, the term will be 5-years for an adult.

For a person sentenced to a custodial sentence of 6-months or less, the term will be 7-years.

For a person sentenced to a custodial sentence of more than 6-months but less than 30 months, the term will be 10-years.

If this is applicable, you must comply with the initial notification requirement within three days of conviction (or release from prison if in custody). In certain circumstances, the prosecution may also apply for a Sexual Harm Prevention Order.

Conclusion

Should you find yourself under investigation for, or charged with an offence of indecent exposure, you should contact us immediately. As the offence of indecent exposure has such a range of sentences available to the court, it is imperative that you seek legal advice to discuss your options and likely position at the earliest stage. Legal advice and assistance may be the difference between losing your liberty and staying out of custody.

At Old Bailey Solicitors, we have a significant experience in advising clients who face allegations of indecent exposure. We offer non-judgemental, clear and definitive advice about your position and the best way to build your defence.

Contact us without delay to arrange an initial consultation.

Yvette joined Old Bailey Solicitors as a consultant solicitor advocate in 2019, she is a highly
regarded advocate. Having qualified as a specialist criminal solicitor in 2000 she gained
higher rights of audience in 2004 and from that time focussed her practice on trial advocacy
in the crown court. She is instructed in matters from serious violence, sexual offences, white
collar crime, fraud as well as being instructed in an advisory capacity and appearing in the
court of appeal.

Yvette undertakes complex and challenging cases and is known as an excellent
communicator with outstanding advocacy and analytical skills. She provides clear, focussed
advice that is sensible and effective.
Over her career Yvette has represented high profile individuals and cases in the full glare of
media spotlight.

Yvette is a qualified Duty Solicitor in the Magistrates and Youth Court and represents clients