GA Code § 16-6-8 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 6 - Sexual Offenses|§ 16-6-8. Public Indecency

  A person commits the offense of public indecency when he or she performs any of the following acts in a public place:   An act of sexual intercourse;   A lewd exposure of the sexual organs;   A lewd appearance in a state of partial or complete nudity; or   A lewd caress or indecent fondling of the body of another person.     A person convicted of the offense of public indecency as provided in subsection (a) of this Code section shall be punished as for a misdemeanor except as provided in subsection (c) of this Code section.   Upon a third or subsequent conviction for public indecency for the violation of paragraph (2), (3), or (4) of subsection (a) of this Code section, a person shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.   For the purposes of this Code section only, "public place" shall include jails and penal and correctional institutions of the state and its political subdivisions.   This Code section shall be cumulative to and shall not prohibit the enactment of any other general and local laws, rules, and regulations of state and local authorities or agencies and local ordinances prohibiting such activities which are more restrictive than this Code section.    (Laws 1833, Cobb's 1851 Digest, p. 815; Code 1863, § 4420; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4461; Code 1873, § 4535; Code 1882, § 4535; Penal Code 1895, § 390; Penal Code 1910, § 381; Code 1933, § 26-6101; Code 1933, § 26-2011, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1991, p. 966, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1996, p. 312, § 1; Ga. L. 1996, p. 354, § 1.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1996, subsection (d) which was added by Ga. L. 1996, p. 354, § 1, was redesignated as subsection (e).   Cross references.   - Computer pornography and child exploitation prevention, § 16-12-100.2.   Law reviews.   - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For comment on Byous v. State, 121 Ga. App. 654, 175 S.E.2d 106 (1970), see 21 Mercer L. Rev. 695 (1970). For comment on Jenkins v. State, 230 Ga. 726, 199 S.E.2d 183 (1973), see 8 Ga. L. Rev. 225 (1973). For comment on Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973), see 8 Ga. L. Rev. 225 (1973).   JUDICIAL DECISIONS    Offense of lewdness at common law  was indecency referable especially to sexual matters, and it included any gross indecency which was sufficiently open and notorious as to tend to corrupt the morals of the community. United States ex rel. Huguley v. Martin, 325 F. Supp. 489 (N.D. Ga. 1971).   Motion to sever.    - Defendant's motion to sever a public indecency charge from sexual battery charges was properly denied as there was sufficient evidence that the charges constituted a single scheme or plan to prey upon young victims and to satisfy the defendant's prurient desires since: (1) the sexual batteries and the public indecency all took place within a month's period of time and within a five-mile radius; (2) the three victims were between the ages of 20 and 29; (3) the defendant approached each victim in a public place and, after attempting to engage them in conversation of a sexual nature, behaved in a sexually aggressive manner; and (4) in one instance of sexual battery and in the public indecency incident, the defendant offered the victims money and fondled the defendant's person. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007).    Nudity emphasizing theatrical theme was not lewd and did not violate former Code 1933, § 26-2011 (see now O.C.G.A. § 16-6-8). Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).   Little difference in effect between lewd conduct in public areas and that in motion pictures.    - There is little difference in the effect on the public between lewd conduct in public areas and lewd conduct explicitly performed on a motion picture screen for viewing by the public. Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, cert. denied, 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267 (1971).   Elements of lewd conduct.    - When a little girl, playing in her backyard with her rabbit, hears a "thumping" or "tapping" and then turns to see the private genitals of her nude next-door neighbor, the test of "lewd" under O.C.G.A. § 16-6-8 is met. Collins v. State, 160 Ga. App. 680, 288 S.E.2d 43 (1981).    Shopping center parking lot is clearly a "public place" within the meaning of O.C.G.A. § 16-6-8. State v. Chrisopoulos, 198 Ga. App. 876, 403 S.E.2d 460 (1991).   Jail was not public place.    - Defendant's conviction for affray in violation of O.C.G.A. § 16-11-32 was reversed because the altercation occurred in the Hall County Jail, which was not a "public place" as required for conviction pursuant to O.C.G.A. §§ 16-1-3(15) and16-6-8(d). Singletary v. State, 310 Ga. App. 570, 713 S.E.2d 698 (2011).   Exposure in front of window.    - Evidence that the defendant would come home from work, pull off clothes and become exposed in front of the window "[j]ust to get a thrill" was sufficient to support conviction for public indecency although the act was committed in a private residence. Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982).   Visible from outside apartment.    - In prosecution for public indecency, although an apartment may come within definition of "public place," in such case, state must show that defendant was visible from outside of apartment. McGee v. State, 165 Ga. App. 423, 299 S.E.2d 573 (1983).    Evidence that defendant was observed masturbating in the television-viewing room in a correctional institution was sufficient to support conviction of public indecency. Minor v. State, 232 Ga. App. 246, 501 S.E.2d 576 (1998).   Masturbating without exposure of sexual organ.    - Evidence that the defendant was observed masturbating with his hands inside his shorts but never exposed his penis to anyone was insufficient to convict him of indecent exposure. Akin v. State, 249 Ga. App. 412, 548 S.E.2d 655 (2001).   Exposure to babysitter in marital bedroom.    - When the defendant appeared nude in the presence of a teenage female babysitter in the marital bedroom and bathroom at his home, the evidence indicated that the defendant by his own behavior converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household, and thereby supports his conviction and sentence for public indecency. Greene v. State, 191 Ga. App. 149, 381 S.E.2d 310, cert. denied, 191 Ga. App. 922, 381 S.E.2d 310 (1989).   Single lewd act in presence of two witnesses as one crime.    - When the defendant allegedly committed a single lewd act in the presence of two minors, but was charged with two separate counts of public indecency, the trial court correctly ordered that prosecution would proceed as to one count only since the two minors were not the victims of the alleged crime but were merely the witnesses through whom the state was prepared to prove the defendant's guilt of an affront to public decency. State v. Chrisopoulos, 198 Ga. App. 876, 403 S.E.2d 460 (1991).    Evidence of urinating on the ground in a shopping center parking lot is sufficient to support a conviction of making a lewd appearance in a state of partial nudity in a public place. Clark v. State, 169 Ga. App. 535, 313 S.E.2d 748 (1984).   Excessive force when arresting for lewd conduct.    - After police responded to a 911 call about a naked man who was seen running through a backyard, the suspect threatened to kill an officer and began walking toward the officer, and the officer shot and killed the suspect, the officer was entitled to qualified immunity as to a Fourth Amendment excessive force claim because an objective officer in the officer's situation could have believed reasonably that the suspect posed an immediate threat to the officer's safety. Furthermore, the officer was acting inside the scope of the officer's discretionary authority when the shooting occurred because even if the officer was outside the officer's jurisdiction, the officer was authorized by Georgia law to conduct a warrantless arrest since the suspect was committing an offense, public indecency in violation of O.C.G.A. § 16-6-8, within the officer's presence. Wilson v. Miller, 650 Fed. Appx. 676 (11th Cir. 2016)(Unpublished).   Admissibility of evidence of previous offense.    - Once identity of defendant as perpetrator of the former crime was proven, testimony concerning that crime was admissible to show identity and criminal bent of mind and to rebut defendant's statement that defendant had never exposed self to anyone before. Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981).    Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent in the defendant's trial for public indecency and sexual battery as in each of the similar transactions, defendant approached someone previously unknown to the defendant in a public place, attempted to talk to the person, and then engaged in sexually inappropriate behavior; in the sexual battery incidents and one similar transaction, the defendant either bit or licked the victims on their buttocks while the victims were shopping and in the public indecency incident and two of the similar transactions, the defendant exposed the defendant's person. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007).    Two conditions precedent to admission of evidence relating to defendant's prior act of exposing self are: first, that witness positively identify defendant as perpetrator of crime; secondly, that there be sufficient similarity between former incident and latter incident that proof of former tends to prove latter. Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981).   Evidence sufficient to support conviction.    - See Collins v. State, 191 Ga. App. 289, 381 S.E.2d 430 (1989); Watkins v. State, 237 Ga. App. 94, 514 S.E.2d 244 (1999).    Witness's testimony that the witness awoke during the night and found that someone had removed a screen from the window of the witness's apartment, that the witness saw someone when the witness looked outside, that the witness was able to see defendant's face and noticed that the defendant was naked when the defendant moved near a neighbor's porch light, and that police apprehended defendant near the witness's residence a short time later and found that the defendant possessed property belonging to another person who had the screen outside that person's window removed was sufficient to sustain defendant's convictions on charges of burglary with the intent to commit theft and public indecency. Heard v. State, 268 Ga. App. 718, 603 S.E.2d 69 (2004).    Evidence establishing that a witness noticed the defendant masturbating on a bench outside a mall department store and could clearly see the defendant's exposed penis was sufficient to support the defendant's conviction for public indecency by a lewd exposure of the defendant's sexual organs. Douglas v. State, 330 Ga. App. 549, 768 S.E.2d 526 (2015).    Victim's testimony that the victim saw the defendant pull the defendant's erect penis from the defendant's pants and begin to masturbate was sufficient to prove the defendant committed the offense of public indecency by a lewd exposure of the defendant's sexual organs and by a lewd appearance in a state of partial nudity. Moton v. State, 332 Ga. App. 303, 772 S.E.2d 396 (2015).   Guilty plea based on single incident waived challenge to sentence.    - Because defendant pled guilty to four misdemeanor counts of public indecency, O.C.G.A. § 16-6-8, based on one lewd act witnessed by several school children, and willingly and knowingly accepted the specified sentences as to the four counts, the defendant waived any claim before the habeas court that there was in fact only one act and that the resulting sentences were void on double jeopardy grounds. Turner v. State, 284 Ga. 494, 668 S.E.2d 692 (2008).   Jury question.    - Whether the act giving rise to a charge of public indecency was performed in a "public place" within the meaning of O.C.G.A. § 16-6-8 was a question of fact which the trial court properly left for the jury's resolution. Collins v. State, 191 Ga. App. 289, 381 S.E.2d 430 (1989).   Jury instruction failing to define "public place".    - Failure to instruct the jury on the definition of "public place" did not amount to plain error as the defendant's genitalia were clearly exposed on a bench outside a shopping mall and seen by a person unrelated to the defendant. Douglas v. State, 330 Ga. App. 549, 768 S.E.2d 526 (2015).   Felony sentence.    - Defendant was properly convicted of a felony on a public indecency charge and sentenced to serve five years to serve on that charge as the defendant had two prior public indecency convictions; the trial court was required to sentence the defendant as a felon rather than a misdemeanant. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007).   Probation condition.    - Probation condition stating that "Defendant will remain appropriately clothed when in public and when the potential for public view exists" imposed substantially the same requirements as those imposed by Georgia's public indecency law, and was sufficiently specific and definite. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. 2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).   Merger of charges.    - Appellant was not entitled to a writ of habeas corpus after serving four 12-month sentences of probation for four counts of public indecency under O.C.G.A. § 16-6-8 related to an incident in which the appellant began to masturbate while alongside a school bus as the appellant failed to show adverse collateral consequences as the appellant only made a bald claim that being sentenced on four counts of public indecency, as opposed to one, created more difficulty in finding employment; based on the plea agreement, the merger of the charges was expressly rejected by the appellant in order to effectuate the negotiated pleas to a misdemeanor. Turner v. State, 284 Ga. 494, 668 S.E.2d 692 (2008).   Public drunkeness not included in crime of public indecency.    - With regard to the defendant's conviction for felony public indecency for urinating in public, the trial court's refusal to charge the jury on public drunkenness as a lesser included offense of public indecency was not error because the crime of public drunkenness requires proof that the defendant was intoxicated, which the crime of public indecency does not; the crime of public drunkenness does not require a lewd exposure of sexual organs, which is required by the crime of public indecency; and, the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not; therefore, the offense of public drunkeness was not included in the crime of public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).   Registration for public indecency proper.    - Offense of public indecency, O.C.G.A. § 16-6-8, was not a victimless crime and, therefore, a perpetrator thereof may have been required to register under O.C.G.A. § 42-1-12; the trial court did not err in requiring the defendant to register as a condition of the defendant's sentence for public indecency. Brown v. State, 270 Ga. App. 176, 605 S.E.2d 885 (2004).    Cited in Jordan v. State, 121 Ga. App. 303, 173 S.E.2d 462 (1970); Jenkins v. Thomas, 124 Ga. App. 286, 183 S.E.2d 489 (1971); Cooley v. Endictor, 340 F. Supp. 15 (N.D. Ga. 1971); Jenkins v. State, 230 Ga. 726, 199 S.E.2d 183 (1973); Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974); Key v. State, 131 Ga. App. 126, 205 S.E.2d 510 (1974); Rushing v. State, 133 Ga. App. 434, 211 S.E.2d 389 (1974); Prairieland Broadcasters of Ga., Inc. v. Thompson, 135 Ga. App. 73, 217 S.E.2d 296 (1975); White v. State, 138 Ga. App. 470, 226 S.E.2d 296 (1976); David v. State, 139 Ga. App. 335, 228 S.E.2d 362 (1976); Singleton v. State, 143 Ga. App. 387, 238 S.E.2d 743 (1977); Singleton v. State, 146 Ga. App. 72, 245 S.E.2d 473 (1978); Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981); Mackler v. State, 164 Ga. App. 874, 298 S.E.2d 589 (1982); Damare v. State, 257 Ga. App. 508, 571 S.E.2d 507 (2002); 2025 Highway, L.L.C. v. Bibb County, 377 F. Supp. 2d 1310 (M.D. Ga. 2005); Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015); Curves, LLC v. Spalding County, Georgia, 569 F. Supp. 2d 1305 (N.D. Ga. 2007); Nichols v. State, 325 Ga. App. 790, 755 S.E.2d 33 (2014); Stevens v. State, 329 Ga. App. 91, 762 S.E.2d 833 (2014).   OPINIONS OF THE ATTORNEY GENERAL    Nudism per se is prohibited by law in Georgia.  1950-51 Op. Att'y Gen. p. 262.   RESEARCH REFERENCES   Am. Jur. 2d.   - 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity, §§ 1, 2, 15, 16.   C.J.S.   - 67 C.J.S., Obscenity, § 5.   ALR.    - What is "infamous" offense within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002.    Criminal offense predicated upon indecent exposure, 93 A.L.R. 996; 94 A.L.R.2d 1353.    Validity, construction, and application of statutes or ordinances relating to decency as regards wearing apparel or lack of it, 110 A.L.R. 1233.   Criminal offense predicated upon indecent exposure, 94 A.L.R.2d 1353.   Operation of nude-model photographic studio as offense, 48 A.L.R.3d 1313.   Topless or bottomless dancing or similar conduct as offense, 49 A.L.R.3d 1084.   Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969.   What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.   What constitutes "public place" within meaning of statutes prohibiting commission of sexual act in public place, 96 A.L.R.3d 692.   Indecent exposure: what is "person", 63 A.L.R.4th 1040.   Regulation of exposure of female, but not male breasts, 67 A.L.R.5th 431.   What constitutes "public place" within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.   Validity of state and municipal indecent exposure statutes and ordinances, 71 A.L.R.6th 283.