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#405 Sex activity between adults

mp3 #405 Sexual Activity Between Adults (mp3 file)

Law enforcement officers investigating a crime may ask you questions without arresting you. Volunteering information can lead to your arrest. If you suspect you may be the subject of an investigation, you should IMMEDIATELY consult with a criminal attorney to avoid incriminating yourself. Continue here to be referred to an experienced and insured criminal defense attorney: 

Private sexual acts between mentally competent and consenting adults, of either the same sex or of ,the opposite sex, are legal in California, unless acts of prostitution are involved. Penal Code Section 647 "B" makes it illegal to solicit, or to agree to engage in, or to engage in any act of prostitution. Both the prostitute, and the prostitute’s client may be arrested for prostitution. If you use a motor vehicle to solicit or engage in prostitution, within 1,000 feet of a private residence, the court may suspend your driver's license for 30 days.

Though gay male and lesbian sexual activities are now legal in this state, the same as for heterosexual sex, it should be emphasized that this is true only for sexual acts done in private, with the consent of the participants, each of whom is an adult 18 years or older. The participants must also be mentally competent to give their consent.

The fact that only private consensual acts are legal means that any sex acts done in public parks, public rest rooms, and other clearly public places are illegal. These acts are punishable under Penal Code Section 647, the disorderly conduct statute. Subdivision A of the statute makes it illegal to solicit anyone to engage in, or to be a person who engages in lewd or dissolute conduct in any public place, or in any place open to the public or exposed to public view. To be guilty of this offense, it is also necessary that the act be done with the intent to sexually arouse, gratify, annoy, or offend, and that the actor knows or should know that there is present, or may be present, a person who may be offended by such conduct. Subdivision D makes it illegal to "loiter in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious (act) or any unlawful act." Sexual acts such as anal sex, oral sex, and sexual intercourse, as well as touching another's genitals, buttocks, or female breasts, are considered lewd or dissolute acts under these sections. Subdivision K makes it illegal to look through a hole or opening, into a bathroom, changing room, fitting room, dressing room, tanning booth or any other area in which the occupant has a reasonable expectation of privacy with the intent to invade the privacy of persons who are in such rooms. It is also illegal to look into such rooms by using binoculars, telescopes, cameras or camcorders. Violation of the disorderly conduct is a misdemeanor which is punishable by up to six months in county jail.

The wording of the disorderly conduct statute itself is not clear whether a person is guilty of a crime if he or she asks someone in a public place, to go with them to a private place to engage in sex. However, the California Supreme Court ruled in 1979 that the statute must be interpreted to mean it is illegal to ask someone to actually have sex which would take place in a public place, but it is legal to approach someone in public and then ask them to go to a private place for sex.

The courts have defined the following as "public places" where sex is illegal: a movie booth in an adult bookstore; an automobile parked on a public street; the common use areas of a massage parlor; a public restroom. The phrase "public place" is described by the courts as any place which is open to common or general use, participation and enjoyment by members of the public. The word "solicit" means to lure on, to seek to induce, or try to obtain.

Persons convicted of violating subdivision D, the toilet loitering section of the disorderly conduct statute, must register as sex offenders in California. This means that they will have to report to the police department of the city or county of California in which they live, and furnish their addresses, fingerprints and pictures of themselves to the police. They must also report any change of address to the local police. Persons convicted of the same crimes in other states must also register as sex offenders when they come to California.

People who have occupational or professional licenses issued by state licensing boards, should be aware that their licenses may be endangered if they are arrested for illegal sexual activity. Some licenses are issued on the basis of good moral character, as defined by the licensing agency, and may be revoked for behavior which the agency considers immoral. A state licensing board may be notified by a local police department about a license-holder's arrest for illegal sexual activity. For instance, the state board of education may be notified of a certificated teacher's arrest for disorderly conduct. A person who receives notice from a state licensing agency that his or her credentials are being reviewed because of an arrest, should consult a lawyer familiar with administrative and employment law.

While sexual activity in private between consenting adults of the same sex is legal in California, it is still illegal in some other states of the U.S. when traveling to other states, it is best to be aware of those states' sex laws. This information can be obtained by calling the local gay and lesbian community center.

It is also important to know about the sex laws of other countries when travelling outside the United States. The laws on lesbian and gay male sexual activity, and the attitudes toward enforcement of these laws, vary widely from country to country.

For information on the legal aspects of sexual activity with minors, view SmartLaw Message #408 titled, "Sexual activity with minors in California," and SmartLaw Message #407, "Statutory rape in California."

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