Simulated masturbation prosecutions call for full defense, says Fairfax criminal defense lawyer (Contains Explicit Language)

Simulated masturbation (SM) prosecutions call for full defense in Virginia. As a Fairfax criminal defense lawyer, I am delighted that the Virginia Court of Appeals generally bars a single crotch grab, by itself, from being an SM crime. Hazelwood v. Commonwealth of Virginia, 87 Va.App. 823 (2026). What does the Virginia SM criminal statute say? “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 § 18.2-371 . What does § 18.2-372 say? The word “obscene” where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.” Virginia Code § 18.2-372. Of course, the only obscenity that can be criminalized is under the Supreme Court’s Miller v. California opinion, that includes consideration of community standards about whether the material is offensive. Miller v. California, 413 U.S. 15 (1973),; see also Barson v. Virginia,  58 Va. App. 451 (2011). Consequently, under Hazelwood, not SM was the Robert de Niro character’s clothed crotch grab on the sales floor in Analyze This, in response to the customer’s insistence to speak with a manager. 

How does the Virginia Supreme Court define clothed simulated masturbation?

Hazelwood says: “In determining whether that [§ 18.2-387.1] standard is met when the charged conduct involves clothed contact with the genital area, this Court considers the following objective indicia: (1) a sustained, repetitive, or stroking motion of the hand over or upon the genital area, as distinguished from a single grab, shake, or thrust; (2) verbal conduct, sounds, or facial expressions consistent with sexual arousal or solicitation rather than hostility or contempt; and/or (3) circumstances that foreclose a reasonably plausible nonprurient explanation, such as an established adversarial relationship between the defendant and the target.” Hazelwood, 87 Va. Ct. App. 823, 835. The rather explicit language from the foregoing test is what saved Hazelwood from a simulated masturbation conviction, but not from a protective order violation.

Aggressive crotch grabbing by itself is not criminal SM in Virginia

The simulated masturbation claim against Hazelwood mainly covered the following encounter with his alleged victim, Melody who saw the events as she stopped her car at a traffic signal, next to Hazelwood’s front porch: “'[A]s [she] looked over, he was waving with one hand, like gesturing as he yelled. And the other, he was touching his penis and shaking it up and down through his clothes. It was not visible.’  She testified that she was about 30 to 40 feet away from Hazelwood. Melody noticed Hazelwood ‘[b]ecause of him yelling and gesturing for [her].’ After hearing Hazelwood say ‘Hey, girl,’  Melody looked toward him ‘and saw what he was doing and [she] just looked away.’ When asked for more detail as to what Hazelwood was doing, Melody responded, ‘He was grabbing his genital area, clearly holding something through his pants, and shaking up and down aggressively’ while ‘[s]taring at me.’ Melody testified that when this was happening, she felt ‘[a]larmed,’ ‘[k]ind of scared,’ and ‘[f]reaked out.’ On cross examination, Melody testified that the car windows were down, and she did not have the radio on. She was not able to hear what Hazelwood said other than ‘Hey, girl,’  and she did not hear him make sexual statements to her. She stated that this incident occurred around noon. Melody did not recall other neighbors being out. Hazelwood did not place his hands inside of his pants, and he never physically exposed himself. She testified that she looked away ‘probably after about two seconds.'” Hazelwood, 87 Va. App. 838-39. All of that activity by Hazelwood was not SM. Hazelwood, 87 Va. App. at 867-68.

How do I challenge the obscenity element of the Virginia SM and indecent exposure law?

Obscenity is an element of both Virginia’s simulated masturbation and indecent exposure (Virginia Code § 18.2-387) criminal statutes. The “‘obscenity’ element of Code § 18.2-387 may be satisfied when: (1) the accused admits to possessing such intent…; (2) the defendant is visibly aroused… ; (3) the defendant engages in masturbatory behavior…; or (4) in other circumstances when the totality of the circumstances supports an inference that the accused had as his dominant purpose a prurient interest in sex.” Hazelwood, 87 Va. App. at 857 (citations omitted). Consequently, mooning — the sophomoric (at best) practice of revealing or sticking one’s unclothed buttocks to someone else — is not by itself obscene. Hazelwood, 87 Va. App.  at 858.

Fairfax criminal defense lawyer Jonathan Katz is a battle-test attorney relentlessly pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. A great start to your defense can begin with your free in-person strictly confidential in-person consultation with Jon Katz about your court-pending prosecution. Contact us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.