T.P.I. -- CRIM. 10.15

PUBLIC INDECENCY

            Any person who commits the offense of public indecency is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

            (1)  that the defendant was in a public place;

and

            (2)(a)  that the defendant engaged in sexual intercourse, masturbation,

                        sodomy, bestiality, oral copulation, flagellation, excretory functions

                        or other intimate sex acts;

or

                (b)  that the defendant appeared in a state of nudity;

or

                (c)  that the defendant fondled the genitals of [himself] [herself] or

                        another person;

and

            (3)  that the defendant acted knowingly or intentionally.

            "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 places" include, but are 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. Premises used solely as a private residence, whether permanent or temporary in nature, are not deemed to be a public place. "Public places" does not include enclosed single sex public restrooms, enclosed single sex functional showers, locker and/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 the state of Tennessee, 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 which has been formed as a family-oriented clothing optional facility, properly licensed by the state.²

            ["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.]³

            ["Sodomy" means a sex act accomplished by anal intercourse or a sex act between a person and an animal .]⁴

            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.⁵

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.⁶

            [It is an exception to this offense that the person made intentional and reasonable attempts to conceal [himself] [herself] from public view while performing an excretory function and the defendant performed such function in an unincorporated area of the state. If the defendant proves this exception by a preponderance of the evidence,⁷ you must find [him] [her] not guilty.]⁸

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-511(a)(1)(A).

  2.  Tenn. Code Ann. § 39-13-511(a)(2)(B).

  3.  Tenn. Code Ann. § 39-13-511(a)(2)(A).

  4.  This definition is derived from Black's Law Dictionary (5th Ed. 1979).

  5.  Tenn. Code Ann. § 39-11-106(a)(20).

  6.  Tenn. Code Ann. § 39-11-106(a)(18).

  7.  Tenn. Code Ann. § 39-11-202(b)(2).  The trial judge should utilize T.P.I. --

       CRIM. 42.01 (Preponderance of the Evidence).

  8.  Tenn. Code Ann. § 39-13-511(a)(1)(B).

COMMENTS

            1.  Public indecency is punishable as follows:  a first or second offense is a Class B misdemeanor punishable by a fine only of $500. A third or subsequent offense is a Class A misdemeanor; however, the fine is $1,500.  Tenn. Code Ann. § 39-13-511(a)(3).

            2.  The Committee is of the opinion that the language of Tenn. Code Ann. § 39-13-511(a)(1)(B) are words "of similar import" as the term is used in Tenn. Code Ann. § 39-11-202 (Exceptions).