Written By:Adam H. Rosenblum
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Most people are aware that not being fully clothed in public is against the law. It might seem, however, that at a nude beach charges of indecency and public lewdness shouldn’t apply. Still, for sunbathers at Gunnison Beach in Sandy Hook—New Jersey’s only nude beach—it most certainly does.
While being naked is permitted at Gunnison, not all nudity-related activities are. Law enforcement aggressively monitors activities at Gunnison to ensure they remain beach-appropriate. Park Rangers are quick to drop in on those who get overly excited or forget that they are in a public place. Unfortunately, over-eager rangers can also cite people for what is ultimately innocent behavior.
What Is Lewdness at a Nude Beach?
While it is perfectly permissible at Gunnison to be fully naked—including with exposed genitals—any kind of sexual activity at the beach is a violation of the law. This includes, but is not limited to, masturbation, sexual contact with another person, and intercourse.
Gunnison Beach is part of the Gateway National Recreation Area, which makes it federal property. As such, rather than be charged with a disorderly persons offense under state law, a person accused of public lewdness will face federal charges.
The Code of Federal Regulations Section 36 CFR 7.29(c) declares that a person is guilty of public lewdness “when he intentionally exposes the private and intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed.”
So while Gunnison relaxes the intentional exposure aspect, a person can still be charged if he/she performs a “lewd act” that can be “readily observed.”
Penalties and Fines
Public lewdness at a national park, such as Gunnison, is a federal misdemeanor. A conviction means facing up to 6 months in jail and a fine of up to $1,000. In addition, the conviction means having a permanent criminal record, which can carry all manner of additional societal consequences, including limiting one’s ability to find housing, obtain loans, or get a job.
Even more problematic still, as a federal offense, it cannot be expunged from one’s criminal record (see below).
How to Beat Lewdness at a Nude Beach
To be charged with lewdness at a nude beach, prosecutors must prove that the accused was performing a sexual act and that he/she could reasonably expect to be seen by others. In most cases, the latter part of the offense is largely implied by the fact that a person was in public. While a person can make a defense out of the idea that he/she was largely obstructed from view (e.g. inside a tent or behind a fence), this defense carries a high burden of proof.
Another defense is to argue that one’s actions were not sexual in nature. For this defense to work, an attorney would need to aggressively cross-examine the federal park ranger or other witnesses in order to damage the credibility of his/her observations. Alternatively, if one or more people were willing and able to testify that he/she witnessed the act and that it was not sexual in nature, this could help one’s defense.
We at Rosenblum Law have had cases where people were engaging in innocent behavior that was construed as sexual, when indeed it was not. Oftentimes what is considered “lewd” behavior is subjective which makes defending a lewdness case at trial more complicated.
Depending on the circumstances of the case, it may be in the best interest of the accused to attempt to downgrade the charges from a federal misdemeanor to a lesser, state-level offense. This is known as assimilation, and it requires that the accused plead guilty to the lesser offense. While a conviction means a criminal record, the reduction to a state-level offense means a person may be able to expunge his/her criminal record after several years.
Regardless of the situation, it is best to consult with an attorney with experience handling such cases. Only an attorney can best assess whether it is worth it to accept a conviction for a lesser offense or take the case to trial.
Consequences for a First Offense
A person with no prior criminal record has the potential to avoid a jail sentence and perhaps even probation. The likelihood of that will depend, however, on the facts of the case and the quality of one’s defense. Even for a first offense, it makes sense to have an attorney handle the case since the consequences can be severe.
Enrolling in Pretrial Diversion
Some federal offenses allow a person the option of enrolling in Pretrial Diversion (PTD). Similar in many ways to New Jersey’s Pretrial Intervention program, federal PTD provides an option to undergo a period of probation and counseling to reduce the chances of reoffending in the future. Those who successfully complete the program will not be charged, or will have the charges dismissed.
In order to be eligible for a PTD, a person cannot have more than two felony convictions. He/she also cannot be a public official accused of violating the public trust or be accused of an offense related to national security or foreign affairs.
Keep in mind that PTD is infrequently used by federal courts. Moreover, the prosecutor must recommend the program and the judge must approve it. Therefore, it is critical to consult with an attorney before getting one’s hopes up of being offered the PTD option.
Expunging Public Lewdness
Public Lewdness under 36 CFR 7.29(c) is a federal offense and thus cannot be expunged from one’s criminal record. Therefore, it is critical that one avoid conviction of this offense if at all possible. That is why it is important to hire the best possible legal representation possible.
An attorney with the right experience and a strong track record of success can help ensure that one does not end up with a conviction that will haunt them the rest of one’s life. This can be achieved by either beating the federal charge or negotiating it down to a state offense which may be able to be expunged.
Frequently Asked Questions
At a nude beach, where exposure of one’s private parts is permitted, lewdness is any sort of sexual act or behavior that is viewable by others. This includes touching oneself or others, even with consent.
Although sexual in nature, neither the New Jersey law nor federal statute considers public lewdness a sex offense. That means a conviction will not result in being identified as a registered sex offender.
Even if a person is charged with a crime and not convicted–which happens when a person completes a PTD program–evidence of the charges can still show up in background checks. It would be wise to consult with an attorney to determine if there is a process for clearing these records.
Who Should I Contact?
If you or a loved one was recently charged with indecent exposure or lewdness in New Jersey—including at Gunnison Beach—contact Rosenblum Law today. Our skilled criminal defense attorneys have helped people in similar situations. We can defend your constitutional rights and do what we can to have your public lewdness charges dismissed. Email or call today at 888-815-3649.
How to Cite Rosenblum Law’s Article
Adam H. Rosenblum (Sep 15, 2020). Public Lewdness at a Nude Beach in NJ – 36 CFR 7.29(c). Rosenblum Law Firm, https://rosenblumlaw.com/our-services/criminal-defense/public-lewdness-at-a-nude-beach-in-nj/
Adam H. Rosenblum "Public Lewdness at a Nude Beach in NJ – 36 CFR 7.29(c)". Rosenblum Law Firm, Sep 15, 2020. https://rosenblumlaw.com/our-services/criminal-defense/public-lewdness-at-a-nude-beach-in-nj/