Public indecency

(a) As used in this section: (1) “Nudity” or “state of nudity” means the showing of the bare human male or female genitals or pubic area with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of the areola, or the showing of the covered male genitals in a discernibly turgid state. Nudity or state of nudity does not include a mother in the act of nursing the mother’s baby; and (2) (A) (i) “Public place” means any location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. Public place includes, but is not limited to, streets, sidewalks, parks, beaches, business and commercial establishments, whether for profit or not-for-profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement, bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets and meeting facilities utilized by any religious, social, fraternal or similar organizations; (ii) For purposes of subdivision (b)(1) and (b)(2), “public place” includes a public restroom, whether single sex or not; (B) Premises used solely as a private residence, whether permanent or temporary in nature, are not deemed to be a public place. Public place does not include enclosed single sex functional showers, locker or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctors’ offices, portions of hospitals and similar places in which nudity or exposure is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein; nor does it include a person appearing in a state of nudity in a modeling class operated by a proprietary school, licensed by this state, a college, junior college, or university supported entirely or partly by taxation, or a private college or university where such private college or university maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation or an accredited private college. Public place does not include a private facility that has been formed as a family-oriented clothing optional facility, properly licensed by the state. (b) A person commits the offense of public indecency who, in a public place, knowingly or intentionally: (1) Engages in sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or other ultimate sex acts; (2) Fondles the genitals of the person, or another person; or (3) Appears in a state of nudity or performs an excretory function. (c) A person does not violate subsection (b) if the person makes intentional and reasonable attempts to conceal the person from public view while performing an excretory function, and the person performs the function in an unincorporated area of the state. (d) Public indecency is punishable as follows: (1) A first or second offense is a Class B misdemeanor punishable only by a fine of five hundred dollars ($500) unless otherwise specified under subdivision (d)(3); (2) Unless subdivision (d)(3) applies, a third or subsequent offense is a Class A misdemeanor punishable by a fine of one thousand five hundred dollars ($1,500) or confinement for not more than eleven (11) months and twenty-nine (29) days, or both; and (3) (A) Notwithstanding subdivisions (d)(1) and (2), where the offense involves the defendant engaging in masturbation by self-stimulation, or the use of an inanimate object, on the property of any public school, private or parochial school, licensed day care center, or other child care facility, and the defendant knows or reasonably should know that a child or children are likely to be present on the property at the time of the conduct, the offense is a Class E felony; (B) Where a person is charged with a violation under subdivision (d)(3)(A), and the court grants judicial diversion under § 40-35-313, the court shall order, as a condition of probation, that the person be enrolled in a satellite-based monitoring program for the full extent of the person’s term of probation, in a manner consistent with the requirements of § 40-39-302. (e) If a person is arrested for public indecency while working as an employee or a contractor, the employer or principal may be held liable for a fine imposed by subdivision (d); provided, however, the employer may not be held liable under this section unless it is shown the employer knew or should have known the acts of the employee or contractor were in violation of this section. (f) This section does not apply to any theatrical production that contains nudity performed in a theater by a professional or amateur theatrical or musical company that has serious artistic merit; provided, that the production is not in violation of chapter 17, part 9 of this title. (g) T