Public Indecency: When Freedom of Expression Turns Illegal

Public indecency, or indecent exposure, has always been a somewhat nebulous charge. It’s classified as a sexual offense, which means that, if you’re charged with public indecency, you’ll be forced to register as a sex offender. The sex offender registry is public, and being a registered sex offender can affect everything from your ability to find housing to getting a job—a harsh penalty to pay for streaking, mooning, or urinating in public.

Public indecency charges get even more complicated when the person or persons in question are exposing their bodies to make an artistic statement. In Illinois and elsewhere around the country, public indecency is typically defined as a person “lewdly or intentionally exposing their body to others in a public place,” and it’s up to the court to look at the available evidence and determine whether the exposure was lewd or simply an artistic expression.

Several artists and musicians in recent years have faced public indecency or disorderly conduct charges while trying to make a statement, inspiring a discussion over when and if public nudity is ever acceptable in the progress.

Erykah Badu, Matt & Kim Publicly Strip for Music Videos

Back in 2010, singer-songwriter Erykah Badu made headlines after stripping in front of the site of JFK’s assassination for a one-take music video. During the filming, Ms. Badu, who claims the music video is meant to make a statement about protest and self-liberation, removes her clothing as she walks by onlookers – including minors – in Dealey Plaza. In the wake of the incident, the Dallas police considered charging Badu with an indecent exposure misdemeanor, which could have resulted in a fine of $4,000 and up to one year in jail.

Dallas police’s Senior Corporal Janie Crowther said that Badu would not be charged with any wrongdoing unless a witness came forward to complain about the event. However, one witness did come forward, and Badu was eventually charged with disorderly conduct. Because she was charged with the misdemeanor offense of disorderly conduct instead of public indecency, Badu was able to avoid registering as a sex offender, instead paying a $500 fine and going through six months of probation.

While Badu was not able to avoid criminal charges altogether, indie rock duo Matt & Kim were more successful in steering clear of legal consequences when filming their “Lessons Learned” music video in 2009. The pair gradually stripped off all their clothes as they walked past onlookers in the middle of Times Square, and at one point in the one-take video, a police officer attempted to tackle Kim Schifino. However, the two were not charged with public indecency because they had a lease permit to film a web promo in Times Square (even though the pitch they used for the permit was simply “Tourists walk through Times Square inappropriately dressed for the weather”).

Although these two music video incidences were similar in that they both involved public nudity in front of onlookers (including minors), the legal consequences (or lack thereof) differed largely because of a technicality. Erykah Badu did not have a permit to film her music video, while Matt & Kim did, even if the permit did not explicitly give them permission to strip in a public place.

Clearly, not every public indecency case involving an artistic statement is going to have the same outcome, and there are going to be gray areas when deciding the case. If you are an artist who is charged with public indecency, the best thing you can do is retain an experienced defense attorney to argue that your public statement does not warrant a criminal conviction.

About the Author: Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area for the Law Offices of Andrew Weisberg. He has extensive experience in handling all types of criminal cases, from sex offenses and violent crimes to theft-related crimes and traffic violations.