UPDATES & ANALYSIS

Indecent exposure before two witnesses is two crimes, not one, Iowa Supreme Court holds

by Rox Laird | April 24, 2024

If two persons simultaneously witness another person masturbating in violation of Iowa’s indecent exposure statute, has that person committed two separate crimes or one crime under Iowa law?

According to the defendant who was convicted by a Story County jury on two counts of indecent exposure for exposing himself and masturbating near two women who witnessed the exposure at the same time, he should have been prosecuted and sentenced for only a single violation.

The Iowa Supreme Court, in a unanimous April 19 decision written by Chief Justice Susan Christensen, disagreed.

Christopher Wilson was arrested by Ames police officers after two women reported that Wilson had exposed himself and masturbated within the view of the car they occupied in an Ames parking lot. Wilson was convicted by Story County jury on two counts of indecent exposure, a serious misdemeanor under Iowa Code section 709.9.

The district court sentenced Wilson to two years in prison on each of the two counts to be served consecutively.

On appeal to the Iowa Supreme Court, Wilson argued that the “unit of prosecution” for indecent exposure is per exposure, not per viewer, and that the evidence was not sufficient to support his conviction on two counts. Thus, he argued, the sentence imposed by the trial court was illegal.

In affirming the district court, the Supreme Court said the Legislature in section 709.9 intended to criminalize three acts that constitute indecent exposure: when person exposes their genitals or pubic area to another who is not the person’s spouse with the intent to arouse or satisfy the sexual desires of either party; when a person commits a sex act in the presence or view of a third person with the intent to arouse or satisfy the sexual desires of either party; and when a person masturbates in the public presence of another.

“We note that for all versions of the crime, it consists of the defendant exposing themselves ‘to another’ or masturbating ‘in the presence of another,’” Chief Justice Christensen wrote. “Thus, we have previously held that indecent exposure is ‘essentially a visual assault crime,’ and to successfully convict a defendant, the state must produce a victim who saw the exposure.”

The unit of prosecution for this visual assault crime is the act of doing something “to another,” Chief Justice Christensen added, “not to ‘the world generally,’” indicating that each person who is the victim of the indecent exposure amounts to a separate offense.

Thus, the Court held, the unit of prosecution for indecent exposure under Iowa Code section 709.9(2)(a) is per viewer, not per exposure.

Tags: Iowa Supreme Court 2023-24