Public masturbation- Fairfax criminal lawyer on the need to count acts rather than alleged victims for the number of counts prosecuted

Public masturbation (PM) is a jailable offense in Virginia.  As a Fairfax criminal lawyer, I know that the number of possible counts for that crime is totaled from the defendant’s alleged actions and not his or her number of victims. Samuel Harris was caught red-handed by two people in a park, seeing him vigorously stroking his penis while looking right at them. Harris v. Commonwealth of Virginia, ___ Va. App. ___ (Feb. 18, 2025). The statute involved says, in its entirety: “Any person who, while in any public place where others are present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372, engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor.” Virginia Code § 18.2-387.1 Without stating whether the Constitution’s Fifth Amendment’s Double Jeopardy bar provided Harris relief, Harris concludes from statutory construction that one act of PM cannot receive more than one convicted count, even when more than one person witnesses the activity.

Risks of unconstitutional overcharging extend to many possible Virginia crimes

Harris involves a public masturbation case, which most people will not have an interest in doing. Nonetheless, a key here is for all Virginia criminal defense lawyers to ensure that their accused clients are not risking two or more convictions for only one wrongdoing, even those that do not involve a person’s allegedly criminal, unclothed activities, whether for alleged indecent exposure or otherwise. For instance, if a person has a weak bladder and is urinating as discretely as possible into a bush, not only does the person not want a prosecution in the first place, but certainly does not want to be prosecuted for multiple counts merely because more than one person allegedly witnessed the alleged wrongdoing.

Exposing one’s genitals to a minor risks a felony conviction

Harris is fortunate that his convicted crime of public masturbation was only seen by adults, making that a misdemeanor. If the observer(s) had been under 18 years old, that would have made this (a flasher offense, for instance) a felony: “Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony: (1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person…” Virginia Code § 18.2-370(A).

What should I do if charged with public masturbation or another sex crime?

A conviction for public masturbation and many other sex crimes is a scarlet letter on one’s reputation. If charged with a Virginia sex offense, it is vital for you to obtain a lawyer who will pursue your best defense, will not judge you, will leave open the possibility that you did not commit the alleged crime, and will only defend you to the hilt. Fairfax criminal lawyer Jonathan Katz does not bat an eyelash at any alleged sex crime or other crime and instead gets right to business in relentlessly pursuing your best defense. Call 703-383-1100, email info@BeatTheProsecution.com or text 571-406-7268 for your free initial in-person confidential consultation with Jon Katz about your court-pending prosecution.