Ark. Code Ann. § 5-14-112 (2020)

Research References

ALR.

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.

Ark. L. Rev.

Disorderly Conduct and Loitering — A Modern Approach to Traditional Legislation, 30 Ark. L. Rev. 186.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Indecent Exposure, 26 U. Ark. Little Rock L. Rev. 363.

Case Notes

Constitutionality.

Former section concerning indecent exposure did not unconstitutionally discriminate against female dancers arrested for appearing nude from the waist up on nightclub stage because of their sex, in that males who appear in public bare from the waist up have never been prosecuted for such conduct, there being nothing to indicate that under proper facts and circumstances a male person would be immune to prosecution for indecent exposure. Robinson v. State, 253 Ark. 882, 489 S.W.2d 503 (1973) (decision under prior law).

Former section concerning indecent exposure was not unconstitutional, as applied to female appellants arrested for dancing naked from the waist up on stage of nightclub, on ground that it contained no provision for judicially superintended adversary proceedings with due notice and trial by jury to determine what was and what was not obscene. Robinson v. State, 253 Ark. 882, 489 S.W.2d 503 (1973) (decision under prior law).

Where a male defendant was convicted of sodomy under § 5-14-122 for engaging in oral sex with another male in a restroom in a public park, the conviction did not violate the defendant's constitutional right to privacy since the defendant had no privacy right to perform such acts in public, and the application of § 5-14-122 to public sexual activity between two members of the same sex did not violate the equal protection rights of homosexuals, because a heterosexual couple engaging in the same act would be guilty of public sexual indecency under this section, and would be subject to the exact same penalty. United States v. Lemons, 697 F.2d 832 (8th Cir. 1983).

Applicability.

This section applies not only to flashers but also to nude dancing in a public tavern. Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985), cert. denied, Young v. Arkansas, 474 U.S. 1070, 106 S. Ct. 830 (1986).

Arousal or Gratification of Sexual Desire.

Evidence held sufficient to find that the trial court was warranted in finding that lascivious intent was established. Burton v. State, 253 Ark. 312, 485 S.W.2d 750 (1972) (decision under prior law).

Evidence held sufficient to find that defendant was dancing to arouse or gratify the sexual desires of herself or others. Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985), cert. denied, Young v. Arkansas, 474 U.S. 1070, 106 S. Ct. 830 (1986).

Evidence.

Evidence held sufficient to sustain conviction. Anderson v. City of El Dorado, 243 Ark. 137, 418 S.W.2d 801 (1967) (decision under prior law).

Where intent was an integral part of former section concerning indecent exposure, it was proper to admit testimony of similar or related unnatural sex acts to establish habit or practice related to intent. Fields v. State, 255 Ark. 540, 502 S.W.2d 480 (1973) (decision under prior law).

Court properly denied the motion to introduce evidence of the victim's prior sexual conduct. Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980).

Lesser Included Offenses.

Public sexual indecency is not a lesser included offense of rape because the two offenses each contain an element that the other does not; rape requires proof of forcible compulsion, while public sexual indecency requires proof that the activity occurred in a public place or in the public view. Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Sexual abuse requires proof of a touching, and indecent exposure requires proof of exposure; therefore, the two crimes do not meet the statutory definition of a lesser included offense. Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985).

Public Place.

Drunk tank of the city jail was a public place. State v. Black, 260 Ark. 864, 545 S.W.2d 617 (1977).

The definition of a “public place” does not exclude establishments that limit their fare only to consenting adults and forewarned viewers. Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985), cert. denied, Young v. Arkansas, 474 U.S. 1070, 106 S. Ct. 830 (1986).

Cited: Heslip v. Lobbs, 554 F. Supp. 694 (E.D. Ark. 1982); Virden v. State, 297 Ark. 507, 764 S.W.2d 43 (1989).