Everything You Wanted to Know About Being Lewd (or not)

Leslie Farber

Despite the end (or not) of the sexual revolution of the 1960s, a person still cannot walk around naked or perform sexual acts in public. Of course we all know this and we all know there are laws prohibiting and penalizing this mostly victimless behavior (unless children are involved). But when law enforcement targets, discriminates against and profiles a certain minority group for enforce­­ment, there is cause for concern. This article takes a brief look at the use and misuse of lewdness statutes by law enforcement and the judiciary in state and federal courts in New Jersey.

NEW JERSEY LAW

In New Jersey, “[a] person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non­con­senting persons who would be affronted or alarmed.” However, if the actor

(1) . . . exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child[;]

or

(2) . . . exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor’s conduct[;]

then we are into indictable crimes territory where the potential penalties are much more severe. New Jersey’s lewdness statute does not specifically define what constitutes lewd behavior, but it includes exposing one’s “genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.” Public nudity alone can be enough to constitute a lewd act, without the actor touching his genitals. Therefore, the statute requires that the actor knows or reasonably expects that the public display can be observed by non-consenting persons who would be offended or alarmed. Naturally, conviction for the exposure of genitals where the actor knows or reasonably expects he is likely to be observed by a child under 13, where the actor is at least four years older than the child, does not require consent or that the child be offended or alarmed. Similarly, to prove fourth degree lewdness, the State need not prove that the underage victim actually saw the conduct.

FEDERAL LAW

Other than under military law, there is no federal lewdness statute, per se, but such behavior that occurs on certain federal property is subject to federal prosecution by incorporating state law definitions. For example, at Sandy Hook in Monmouth County, New Jersey, which is part of the federal Gateway National Recreation Area, federal regulations criminalize the behavior by incorporating New York’s definition of public lewdness:

§ 7.29 Gateway National Recreation Area.

* * *

(c) Public lewdness. Section 245.00 of the New York Penal Code is hereby adopted and incorporated into the regulations of this part. Section 245.00 provides that:

A person is guilty of public lewdness when he intentionally exposes the private and intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed.

In New York State courts, Section 245.00 lewdness is A Class B misdemeanor. In federal court, however, a conviction under this section may involve incarceration, but often is pled down to a disorderly conduct offense, which typically incurs a $500 fine and no incarceration. Without a presidential pardon, federal convictions cannot be expunged.

Numerous federal arrests for alleged lewdness have taken place, and continue to take place at Gunnison Beach (a permissibly nude beach) at Sandy Hook. The arrests have been not for merely being naked, but rather, for activities specifically involving touching genitalia. These arrests usually are made by uniformed park rangers, often observing beachgoer behavior with binoculars.

Sting Operations IN NEW JERSEY

News reports emerged in mid-2005 that the police force of Palisades Interstate Park in Alpine, New Jersey, had been running a sting operation, purportedly for lewdness crimes occurring in the park. (The New Jersey section of Palisades Interstate Park runs along the Palisades cliffs from Fort Lee, near the George Washington Bridge, Northward to the New York border in Alpine. This section of the park is operated by the Palisades Interstate Park Com­mis­sion, which maintains its own police force and court that operates like any other municipal court in Bergen County. For further information, see http://www.njpalisades.org

This sting had resulted in the arrests of dozens of gay men on lewdness charges so far that year. In one of the first news reports after a trial on June 2, 2005, of a gay man arrested and convicted of lewdness, it was reported that the municipal court judge, Steven Zaben, J.M.C., had concluded that because the defendant is gay, he must have gone to the park for a sexual encounter. Defense attorneys in these cases were claiming that gay men were being profiled entrapped and subject to selective prosecution because of their sexual orientation. In at least one case, the defendant claimed police brutality during his arrest. Whether or not there was police brutality during that arrest, the incident sent three people, including the defendant and two police officers, to the hospital. The arresting officer in all or most of these cases was Detective Thomas Rossi. More than ninety percent (90%) of Rossi’s over one hundred (100) lewdness arrests had been of gay men by that time. Judge Zaben’s typical sentence against gay men in these cases was a $1,000 fine, a 5-day suspended sentence, 2 years probation, a 2-year ban from the park (including use of the highway that runs through the park) and sometimes even psychiatric counseling. However, Judge Zaben sentenced a heterosexual couple for a lewdness conviction to only a $750 fine, no suspended sentence, no probation, and a 2-year ban from the park.

Sensing a pattern of illegal discrimination and profiling of gay men, in 2005, LGBT and civil rights organizations took their case to the press and government officials, asking for an investiga­tion into the targeting of gay men in the sting operations and into the apparent biased disparity in sentencing between gay and straight couples after lewdness guilty pleas or conviction after trial. No investigation was performed.

Then came the Appellate Division decision in State v. Mamone in 2006 and the proverbial cookies hit the fan. Mr. Mamone was arrested by then-Detective Thomas Rossi in plain clothes in daylight in June 2004 at the State Line Lookout alongside the Palisades Interstate Parkway in Alpine, New Jersey, which is part of Palisades Interstate Park, and charged with fourth degree lewdness. Although there were cars in the lookout’s parking lot at the time, both the arresting officer and the defendant were approxi­mately twenty-five (25) feet down the nearby trail at the time. The only people to testify at Mr. Mamone’s trial were Rossi and the defendant. Rossi testified that he arrested Mr. Mamone after the defendant unzipped his pants and began masturbating in front of him. The defendant admitted to exposing himself, but denied masturbating, and stated that Rossi had propositioned him.

On cross-examination, Rossi testified that, in 2004, he made over 50 arrests for lewdness, and since 2002, he had made over 100 arrests for lewdness. A small percentage of those arrested were women. Rossi also admitted that he did not see any other people in their vicinity when the defendant supposedly exposed his genitals and did not know if there were any other people on that path or on any subsidiary paths. The only people that were around at the time were Rossi and the defendant. Despite having previously been to “strip bars” and viewed pornography, Rossi asserted that he was somehow shocked at Mr. Mamone’s behavior.

Although the officer claimed that the facts supporting each lewdness arrest were different and that Mr. Mamone’s arrest report was unique, he admitted that ninety-nine percent (99%) of the people that he arrested for lewdness were masturbating at the time they were arrested, and when confronted with twenty-six (26) complaints he had signed for lewd behavior that had a virtually identical description of the behavior, he claimed that the behavior was identical in each such case.

At the conclusion of the trial, municipal court Judge Zaben found defendant Mamone guilty of lewdness disorderly persons charge and sentenced him to five days in jail (suspended, provided that the defendant refrained from going into the park for two years, except for commuting to work), and imposed various fines and fees. In making his decision, Judge Zaben made findings of fact, including that Rossi’s factual descriptions were reliable and that Rossi’s testimony was credible because he had no interest in the outcome and no reason to lie, whereas the defendant had more reason to lie because he wanted to avoid conviction.

In ruling on Mr. Mamone’s appeal to the Superior Court, Law Division, the Law Division judge affirmed the conviction, but made several legal errors recited in the Appellate Division decision. Notably, the Law Division judge also added the penalty that the defendant submit to drug and alcohol testing, even though there was no allegation in the record of drug or alcohol use. (In the New Jersey court system, appeals from most convictions in the municipal courts, as courts of limited criminal jurisdiction, are made to the Superior Court, Law Division, with the standard of review being “trial de novo on the record” below. Thus, the Law Division judge considering the appeal makes her own findings of fact, but gives due deference to witness credibility, and generally cannot expand the record below.)

In the subsequent Appellate Division decision, the court began its analysis by stating: “An abiding sense of wrongness pervades this conviction.” From a factual standpoint, the court was concerned that “[n]either the municipal court nor the Law Division discussed the evidence that impeached Rossi’s testimony.” Specifically,

Rossi testified that defendant used his right hand, but defendant is left-handed. On cross-examination, Rossi admitted that the recitation of the facts in twenty-six different complaints was virtually identical and admitted that ninety-nine percent of his hundred or so lewdness arrests involved males masturbating in front of him. Defendant presented a persuasive attack on Rossi’s credibility, raising serious doubts about whether it was believable that a police officer could have had almost a hundred men approach him, pull out their genitals and start masturbating without any enticement by the officer at all. In addition, Rossi’s testimony lacked the type of detail that one would expect from an officer who professed to be surprised and shocked, a claim that is difficult to credit from an officer who purportedly has had the same thing happen to him almost a hundred times. The record, in short, generates significant questions about the officer’s credibility that were not sufficiently considered.

The Appellate Division found that the court below used the wrong standard to adjudge witness credibility, and failed to assess the mental state of the person(s) present, that is, “whether under the circumstances, the conduct is offensive, or has the likelihood of being offensive, to the persons who are present.” In such a case, the focus is on the mens rea (mental state) of the offending actor and the defendant must have acted with the knowledge that he could be seen or the reasonable belief that his actions could be viewed by a non-consenting person who would be affronted or alarmed in order for a lewdness conviction.

Noting that Mr. Mamone exposed himself only to Detective Rossi and Rossi admitted that no one else was in the immediate area, that the exposure took place “well off the beaten path,” and that there was no one else present when the exposure took place, this indicated that the defendant intended to expose himself only to a consenting participant and did not think it reasonable that anyone else could see him. The Appellate Division held that, the mere fact that the conduct took place in a public park is insufficient by itself to prove the mens rea (state of mind) required by the statute. The court, therefore, reversed Mr. Mamone’s conviction. From this author’s conversations with ACLU attorneys, it was learned that the ACLU submitted a formal request to the Appellate Division Committee on Opinions for the Mamone decision to be published, which would have given it precedential value. The request was denied, so the case cannot be used for precedential value, but provides a good road map to the law in lewdness cases. The Mamone decision also has been useful in dealing with the court in Palisades Interstate Park in other lewdness cases there.

In light of the Appellate Division’s strong criticism in Mamone of both Detective Rossi and the munici­pal court’s factual findings and legal analysis in its decision, interested groups reiterated their request for an investiga­tion of alleged discriminatory police and judicial practices at the Palisades Interstate Park police department and municipal court. As far as we know, there was no investigation, but shortly after the Mamone decision, the Palisades Interstate Park municipal prosecutor began recommending and the same judge began accepting plea deals in lewdness cases wherein the defendant would plead guilty to a vague park regulation of being improperly attired and pay a small fine, with no criminal record, no probation, and no banning from the park. Despite protests from the LGBT and progressive communities, Judge Zaben was eventually promoted and appointed as a judge of workers compensation.

Fast forward to July 2010. For several years, the Essex County Sheriff’s Department had been running its own undercover sting operation in county parks (mostly in Branch Brook Park in Newark and South Mountain Reservation in Maplewood and Millburn) wherein many gay men were snagged in a similar fashion on lewdness charges. The modus operandi was similar to the undercover sting in the Palisades Interstate Park (Alpine) cases with plain clothes officers cruising the woods, purportedly looking for men engaging in or soliciting gay sex. In the Essex County cases (heard in local municipal courts when there is no indictment on a fourth degree or higher crime), sometimes defendants were able to plead guilty to local ordinances and sometimes not. But number of lewdness arrests in the Essex County sting was less than that of the ones in Alpine. However, something must more tragic happened in July 2010 in Branch Brook Park, which is an Essex County park in Newark.

Former Montclair, New Jersey, resident, DeFarra Gaymon, was a married, father of four, and a successful businessman, president and C.E.O. of Credit Union of Atlanta, Georgia. On July 16, 2010, Mr. Gaymon was returning to New Jersey for his 30^th high school reunion, of which he was an organizer. At Montclair High School, he had been in the Chess Club, the French Club, the Italian Club, and the student coalition at Montclair High School, but never made it to the reunion party on Friday night at the Crowne Plaza Meadowlands because he was dying from a gunshot wound by an undercover Essex County Sheriff’s Department officer in Branch Brook Park.

According to police, an undercover police officer had been on what is not usually a particularly dangerous assignment, scouring the park, in northern Newark, for men seeking sex. Supposedly, during an encounter between the officer and Mr. Gaymon, Gaymon propositioned the undercover officer, and then the officer showed Mr. Gaymon his badge. A struggle supposedly took place wherein Mr. Gaymon allegedly shoved the officer to the ground and ran, ignored the officer’s demands to stop, and repeatedly threatened to kill the officer if he approached. According to police and prosecutor statements, the officer cornered Mr. Gaymon beside a pond and tried to handcuff him. Mr. Gaymon resisted and supposedly lunged at the officer in an attempt to disarm him, where­upon the officer shot Mr. Gaymon, who died in the hospital a few hours later. There were no other witnesses to the incident, but people who knew Gaymon described him as a peaceful, non-violent man.

Immediately, there was a public outcry over what appeared to many to be a senseless shooting and death. The American Civil Liberties Union and Garden State Equality called for an investigation and an end to the undercover sting operation. No one will ever know exactly happened that tragic night of July 16, 2010, or whether or not Mr. Gaymon was gay.

However, one analysis of arrest records from the Essex County sting operation shows that almost ninety percent (90%) of the arrests in Branch Brook Park or South Mountain Reservation were for lewdness or criminal sexual contact of men who may have been cruising for sex or, in some cases, were allegedly observed having sex with other men. A consistent theme in the 130 reports by plainclothes officers involved in the Essex County sting was that they were walking through a park when a man, without any prompting from the officer, exposed himself or grabbed the officer’s crotch. Sixteen of those arrests, or twelve percent (12%) of the total, included aggravated assault or resisting arrest charges. Regardless, in the Gaymon case, as one person put it, “What we have here is a situation where an unarmed citizen ends up dead as a result of what would have been a minor crime.”

Soon after DeFarra Gaymon’s tragic death, the Essex County Sheriff’s Department suspended the undercover patrols designed to crackdown on gay men who allegedly use county parks for sexual activity. Yet LGBT groups remained incensed because this sting operation appeared to be yet another form of illegal discriminatory, racial-type profiling and called for state attorney general and FBI investigations. To the best of our knowledge, there has been no official investigation by the State or anyone at the federal level — yet.

OTHER STATES

New Jersey is not the only place where law enforcement has been relying on lewdness statutes to run undercover sting operations against gay men. Police continue to profile and target gay men in places like Dallas, Texas, Las Vegas, Nevada, Los Angeles, California, and Palm Springs, California.

CONCLUSION

It seems clear that gay men have been targeted by law enforcement in public parks. It also appears that when they were arrested, gay men were subjected to disparate treatment both in terms of the pleas they were offered and sentences they received. While this author does not condone public sexual encounters by anyone, regardless of their sexual orientation, all offenders must be treated equally, and law enforcement must refrain from using discriminatory entrapment tactics against men who are or who are perceived to be gay.

Post-script

As to former Palisades Interstate Park Police Detective Thomas Rossi, now just Officer Rossi, he no longer is a detective, but, to the best of this author’s knowledge, is still a member of the Palisades Interstate Park Police Department and has been out of work on disability since June 2010. Most or all “Rossi” lewdness cases pending at the Palisades Interstate Park municipal have been dismissed since the officer refuses to travel (as of August 20, 2010) to Alpine from his home in the Toms River area to testify because of a disability from a knee injury he suffered on the job earlier in 2010.

© 2011 Leslie A. Farber

Online Resources used in this Article:

For a brief history and discussion of the use of public lewdness laws to prosecute gay men, see George E. Haggerty, Gay Histories and Cultures: An Encyclopedia, 537-538, 830-831 (2000) available at

http://books.google.com/books?id=406CCTn4AAQC&printsec=frontcover&dq=GEORGE+E.+HAGGERTY,+GAY+HISTORIES+AND+CULTURES:++AN+ENCYCLOPEDIA&source=bl&ots=1HzChU4KQZ&sig=aMhRS7kbQgb6hOpTENTjfhlWKno&hl=en&ei=y0JlTbmZAoGC8gaEv8ytBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBYQ6AEwAA#v=onepage&q&f=false

Duncan Osborn, You’re Gay, You’re Guilty, GayCityNews.com Archives (June 9-15, 2005), http://204.2.109.187/gcn_423/youregayyoureguilty.html

Duncan Osborn, Cops on the Lookout: Attorneys Charge Gay Men Entrapped in Palisades Park, GayCityNews.com Archives (May 26 – June 01, 2005), http://204.2.109.187/gcn_421/copsonthelookout.html

Duncan Osborne, Lewdness Raps Pleaded Out, GayCityNews.com Archives (Sep. 14-20, 2006), http://204.2.109.187/gcn_537/lewdnessrapspleaded.html

Duncan Osborn, Cops on the Lookout: Attorneys Charge Gay Men Entrapped in Palisades Park, GayCityNews.com Archives (May 26 – June 01, 2005), http://204.2.109.187/gcn_421/copsonthelookout.html

Duncan Osborn, Lewdness Arrestee Charges Brutality, GayCityNews.com Archives (Sept. 22 28, 2005), http://204.2.109.187/gcn_438/lewdnessarrestee.html

Duncan Osborne, Disparate Results in New Jersey Lewdness Arrests, GayCityNews.com Archives (July 14, 2005), http://www.glapn.org/sodomylaws/usa/new_jersey/njnews002.htm

Letter from American Civil Liberties Union of New Jersey and Garden State Equality to New Jersey Acting Governor Richard J. Codey and Palisades Interstate Park Commission (July 27, 2005) (available at http://www.aclu-nj.org/downloads/CodeyLetter.pdf)

Jeff Gardner, Corzine on Judges: Racist? No way! Homophobic? Okay!, BlueJersey.com blog (Mar. 14, 2008), http://www.bluejersey.com/tag/Steven%20Zaben; Dunstan McNichol, Questions of bias delay judge’s promotion bid, NJ.com (May 15, 2008), http://www.nj.com/news/index.ssf/2008/05/bias_questions_delay_palisades.html

Duncan Osborne, Rejecting Marriage Equality, NJ Senate Advances Anti-Gay Judge, GayCityNews.com (Jan. 11, 2010), http://gaycitynews.com/articles/2010/01/11/gay_city_news/news/doc4b4b6146ebb54784095588.txt

Letter from American Civil Liberties Union of New Jersey and Garden State Equality to New Jersey Governor Jon S. Corzine and New Jersey Attorney General Zulima V. Farber (Aug. 15, 2006) (available at http://www.aclu-nj.org/downloads/081506ParkPoliceLetter.pdf )

After lewdness conviction is overturned, activists call for investigation of police, Advocate.com (Aug. 9, 2006), http://www.advocate.com/article.aspx?id=34960

ACLU, Gay Rights Groups Call for ‘thorough’ Investigation into Fatal Shooting of Atlanta CEO, NJ.com, July 22, 2010, http://www.nj.com/news/index.ssf/2010/07/aclu_gay_rights_groups_call_fo.html

ACLU-NJ, Garden State Equality Demand Investigation of Sting Operations, American Civil Liberties Union, http://www.aclu-nj.org/news/2006/08/15/aclu-nj-garden-state-equality-demand-investigation-of-sting-operations

Palisades Interstate Park Commission, Rules and Regulations, § 408.1(r) (2006) (available at http://www.njpalisades.org/pipc_regs.pdf )

Richard Pérez-Pe?a, Questions in Officer’s Killing of C.E.O. in Newark, New York Times, July 20, 2010, http://www.nytimes.com/2010/07/21/nyregion/21newark.html?_r=2

Duncan Osborne, Familiar Pattern in Newark Park Slay, GayCityNews.com (Jan. 19, 2011), http://gaycitynews.com/articles/2011/01/19/gay_city_news/news/doc4d124f1221b6f253511567.txt

Alexi Friedman, Undercover Branch Brook Park Patrol is Suspended after Fatal Shooting of Atlanta CEO, NJ.com (July 31, 2010), http://www.nj.com/news/index.ssf/2010/07/undercover_newark_park_patrol.html

Maria Karidis (Belleville Times), Essex Sheriff Suspends Undercover Efforts to Stop Sex Solicitation, NorthJersey.com (Aug. 3, 2010), http://www.northjersey.com/news/essex/essex_parks/99847454_Essex_sheriff_suspends_undercover_efforts_to_stop_sex_solicitation.html

Will Kohl, Club Dallas Gay Bathhouse Raided, 11 Arrested For Public Lewdness and Indecent Exposure, Back2Stonewall.com Blog (Oct. 18, 2010), http://www.back2stonewall.com/2010/10/club-dallas-gay-bathhouse-raided-11.html

Nevada Law of Open or Gross Lewdness; NRS 201.210, Las Vegas Defense Group,

http://www.shouselaw.com/nevada/open-lewdness.html

Shouse Law Group, Suspects Wrongfully Accused of Lewd Conduct at Elysian Park, California Criminal Defense Blog (Oct. 6, 2009)

http://www.californiacriminaldefenseblog.com/2009/10/suspects_wrongfully_accused_of_lewd_conduct.html

Kilian Melloy, Palm Springs Officer Apologizes for Sex Sting Slur, EdgeBoston.com

http://www.edgeboston.com/index.php?ch=news&sc=&sc3=&id=114596&pf=1

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