Defense attorneys express concerns about DPD's enforcement of public lewdness

Posted on 26 Apr 2010 at 1:31pm

Pete Schulte, attorney for former WFAA anchor Brad Hawkins, isn’t talking to the media about the public lewdness charge his client faces after an incident last Monday night at Flagpole Hill Park near White Rock Lake. But I did manage to talk to some other criminal defense attorneys who frequently represent people charged with public lewdness.

I also talked to a representative from Southwest Airlines, Hawkins’ employer, who would only confirm that the company is aware of the charge and that Hawkins is still employed there. The Southwest representative wouldn’t say anything further, but I think this is a good sign for Hawkins. Since this is Hawkins’ first offense, even if he enters a plea to avoid a trial, he’s likely to receive 12-18 months probation and a deferred adjudication, according to the attorneys I spoke with. If Hawkins were to complete the probation successfully, the charges would be dropped and he could have them removed from his record.

But what about the other issues involved here? I’ve tried to address a few of them after the jump.

The attorneys I spoke with confirmed that touching of genital areas, even when it’s over the clothing as alleged by police in this case, meets the definition of public lewdness under Texas law. One said a Texas appellate court once ruled that public lewdness had to involve skin-to-skin contact, but the ruling was later overturned. In fact, the attorneys said a majority of public lewdness cases in Dallas now involve alleged over-the-clothing contact because undercover officers will halt the encounter before it progresses beyond that.

Also, regardless of how much enticement is involved on the part of undercover officers, the attorneys say entrapment typically isn’t a winning defense in these cases. First of all, to prove entrapment, the defendant must admit to the actual act. And second, the defendant must show that he was under so much pressure from police that he did what any reasonable person would have done. In other words, the judge or jury would have to be able to say to themselves, “Yeah, I would have grabbed the cop’s crotch, too.”  The attorneys suggested that a vice officer hitting on a suspect doesn’t meet this standard.

While vice officers’ actions may not constitute entrapment, the officers do frequently embellish the circumstances of these arrests, and fail to include in their reports the degree to which they entice suspects, according to the attorneys. It’s relatively rare for someone to be arrested for sexual contact with a non-officer in a public place. This raises the question of how much “public lewdness” would be happening were it not for the vice officers’ actions.

In this case, according to the report, Hawkins was shaking hands with the officer when he pulled the officer’s hand against his own erect penis. If this is what really happened, then Hawkins should have been charged with sexual assault, not public lewdness. But he wasn’t, which may be an indication that this isn’t really what happened, one of the attorneys said.

Unfortunately, few people are willing to fight public lewdness cases. Particularly if it’s their first offense, they’d rather plead out and avoid any publicity or embarrassment associated with a trial.

And, of course, anyone in the general public who questions public lewdness enforcement is perceived as advocating public sex. We all know public sex perpetuates negative stereotypes about the LGBT community, which doesn’t help in the fight for equality.

But does this mean there aren’t issues with the way DPD is enforcing public lewdness? According to the attorneys, the answer is no.

For one thing, given more serious crime problems in Dallas, the attorneys questioned whether the police department should be devoting so much time and energy to public lewdness enforcement.

Some of the attorneys also took issue with the police department’s practice of posting public lewdness suspects’ names and mug shots on its Web site, even though they haven’t been convicted and are presumed innocent. Dallas is the only major city I know of that does this with public lewdness cases, and the attorneys noted that DPD doesn’t post suspects charged with more serious offenses, such as sexual assault.

Another attorney suggested that DPD switch to a practice of charging first-time offenders with a class-C misdemeanor, punishable by a $500 fine but no jail time, instead of class-A misdemeanor public lewdness.

A class-A misdemeanor carries a maximum $4,000 fine and up to a year in jail. Judges can also require those convicted of public lewdness to register as sex offenders, though this rarely happens.

If someone exposes themselves in public but there is no sexual contact, the charge is indecent exposure, a class-B misdemeanor. Even though this is a less serious offense, a second indecent exposure conviction carries automatic sex-offender registration. This apparently is due to the fact that the indecent exposure statute was written with the intent of targeting flashers.

As you can see, these are some pretty serious consequences, so the safest bet is to stay the hell out of the parks and the bathrooms. Not only does this behavior tend to hurt the entire community, but there’s a good chance that special someone  you’ll meet is an undercover cop.

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