Is Having Sex in a Public Place a Sexual Offence?

The Sexual Offences Act 2003 made changes to previous law around sexual behaviour, and currently only covers one specific offence criminalising the act of having sex in a public place (namely the offence of having sex in a public lavatory). However, the act of public intercourse in other public settings may still be criminalised by other laws. For instance, this type of behaviour may be charged under the common law offence of outraging public decency or possibly under indecent exposure (which is also under the Sexual Offences Act 2003).  Convictions for such offences can result in a custodial sentence and other serious consequences may flow, such as being placed on the Sex Offenders’ Register. Therefore, if you are under investigation or have been charged with an offence relating to having sex in a public place, it is important that you obtain legal advice at the earliest opportunity.  At Old Bailey Solicitors we can assist with your case and help represent you throughout a daunting and sensitive process.

What Offence Can you be Charged with if you are Alleged to have had Sex in a Public Place?

If it is alleged that you have had sex in a public place, there are a number of offences that the police may be able to charge you with. The main offences include Indecent Exposure (under the Sexual Offences Act 2003) and Outraging Public Decency (under Common Law). There are also more specific offences, such as Sexual Activity in a Public Lavatory.

Sexual Activity in a Public Lavatory

S71 of the Sexual Offences Act 2003 makes it a criminal offence to participate in sexual activity in a public lavatory. In order to be guilty of the offence, it must be proved that there was public access to the lavatory (whether payment was required or otherwise) and that you intentionally engaged in the alleged sexual activity. For the purpose of this offence, an activity is considered to be sexual if a reasonable person would consider it to be so.

If convicted of such an offence, a Court could impose a fine or Community Order on the individual. Dependent on the length of the Community Order or the severity of the imposed sentence, you might be required to comply with the Sex Offenders’ Register.

Outraging Public Decency

Outraging public decency is a common law offence which makes it a criminal offence to ‘do in public any act of lewd, obscene or disgusting nature that outrages public decency.’  While this offence covers any ‘lewd, obscene or disgusting’ behaviour, this offence is commonly charged when dealing with cases of public sexual intercourse. An individual may be charged with this offence if the police believe the individual had sex in a public place where they were witnessed or where there is a reasonable chance of being witnessed by at least two members of the public. Even if the behaviour is not witnessed by these members of the public, the reasonable chance that it could have been is sufficient for the commission of this offence.

What constitutes a public offence?

For the purpose of the offence of outraging public decency, a public place is defined as any place that’s accessible to or within view of the public. This can include public roads and other premises that the public can access, whether by payment or otherwise.

Outraging public decency carries more severe penalties than that of sex in a public lavatory. It is an either-way offence, meaning it can be dealt with either in the Magistrates’ Court or the Crown Court and in the most serious cases can result in a lengthy custodial sentence and placement on the Sex Offenders’ Register.

Indecent Exposure

It is also a criminal offence if an individual intentionally exposes their genitals with the intention of someone seeing them and the consequence of this action is to cause that individual alarm or distress. This is less likely to cover an offence of sexual activity in public but is a possible trigger for arrest if an individual was to be witnessed engaging in sexual activity in a public place or if they are seen to be indecently exposed.

This is also an either-way offence and can be tried in both the Magistrates’ Court or the Crown Court. For a case in the Crown Court, this can carry a maximum sentence of 2 years’ imprisonment and possible placement on the Sex Offenders’ Register.

Sentences and Other Consequences

The above offences carry a range of sentences between a fine and a custodial sentence. However, as well as standard sentencing procedures, the court may also impose other requirements due to the sexual nature of these types of offences, such as being placed on the Sex Offenders’ Register.

Sex Offenders’ Register

Any conviction for a ‘qualifying offence’ will automatically trigger the requirement for the individual to be placed on the Sex Offenders’ Register (also known as the notification requirement). The period of time the individual will be subject to these requirements will depend on the length of sentence imposed and the age of the individual. For instance, for an individual who is 18 and over, the below terms will apply:

• Term of imprisonment of 30 months or more – indefinite notification period
• Term of imprisonment of 6 months but less than 30 months – 10 years notification period
• Term of imprisonment less than 6 months – 7 years notification period
• Caution – 2 years notification period
• Conditional Discharge – for the period of the discharge
• Fine or community order – 5 years notification period

What to do if you have been accused of having sex in a public place?

If you are under investigation or have been charged with an offence related to having sex in a public place, it is important that you obtain the right legal advice as early as possible. At Old Bailey Solicitors we have a number of solicitors who can assist from the early stages of your case all the way through to its conclusion. Our firm has particular experience with Sexual Offence cases and can offer thorough support for you and your case.

If you have been accused of a sexual offence, please contact Old Bailey Solicitors at [email protected] or on 0207 8464 999.