Once upon a time, when men had flat stomachs and women had gray hair, law enforcement was an honorable profession.
It was a time when, collectively, we accepted life’s realities: getting sick, getting fired, getting punched, getting old, dying, and when confronting an overburdened latrine, peeing in a darkened alley.
That was before police officers crouched behind telephone poles waiting for old men with weakened bladders to urinate in a location and position where no one, including the officer, could observe the offending appendage and its function. “What’s happen to this country?” asked a senior helpline caller, who knows a 67-year-old facing a charge of indecent exposure and the potential for being labeled a sex offender.
“It was after 10. A bunch of softball players were lined up, so he stepped outside; nobody around except a young city cop. Now I am told that if he admits what he was doing—and he was in fact peeing—that he may have to register as a sex offender. Can that possibly be true?”
It is. In at least 13 states a person convicted of public urination can be labeled a “sex offender” and required to register as such. These statutes were enacted to make it easier to prosecute flashers. Men would expose themselves and then, if caught, argue they were simply urinating. In order to remove that defense, many states made it a sex crime.
In several states peeing is covered by an indecent exposure statute, with no carve out for peeing against a building. At common law a person could be charged with indecent exposure even if nobody could see you. Some states require that the exposure is likely to “offend or alarm,” adding a mens rea (intent) requirement, or requiring a “someone might be able to see” standard. A few require that the exposure be to a member of the opposite sex.
Many localities are adjusting the statute so it is better defined; but not the caller’s state. Unless the judge makes an accommodation, his conduct could be categorized as a “sex crime” and his name entered on the state’s sex offenders’ registry. In this instance, the defendant would do well to engage legal counsel and be hopeful that the trial judge is (a) male, (b) over 60, and (c) has an enlarged prostate.
Or, alternatively, seek suppression of the officer’s testimony on the grounds that his youth is a disqualifying condition.
Professor Michael Myers teaches Elder Law and Health Law & Policy at the University of South Dakota School of Law. The Elderlaw Forum is a public service of the University of South Dakota School of Law. Pro bono legal information and advice is available to persons 55 and older at 1-800-747-2895; mmyers@usd.edu. Opinions are solely those of the author and not the University of South Dakota School of Law.
