The annals of California legal history are full of cases where police have charged gay men and lesbians with indecent exposure, sometimes during Pride parades, where some of the parade participants often show boobs, butts, and, well, you know.

But what if no one sees the “exposure?” Is it still exposure?

According to a recent court case, yes. In this case, a woman, who was a cashier at a restaurant, saw a male customer doing what she believed to be masturbating at a table in the diner.

She wasn’t sure because he was apparently doing it under the table. But she could tell by the motion that he was masturbating, so she thought.

He apparently visited the diner a second time and she saw him doing it again. Another waitress watched this time, but she, too, didn’t actually see his organ.

After the man left, the two women called police, who arrived and noted that, underneath a newspaper located under the table where the man sat, there was a white substance. They believed it was semen, but they didn’t take a sample to confirm their suspicions.

Police arrested the man and charged him with indecent exposure.

California law makes it a crime to willfully and lewdly expose his person or private parts thereof, in any public place where there are present persons who would be offended or annoyed thereby. (CPC 314.1)

Enacted in 1872, the statute has historically been a tool used by police to arrest gay men and lesbians for such things as wearing shorts.

The law varies between males and females because men can display their bare chests in public, but women may not, unless, of course, they are breast-feeding (an infant).

Since 1872, California courts have assumed that the crime requires someone must see the proscribed body part and be offended by it. But in People v. Carbajal, a California appellate court held that one doesn’t need to see the offending body part.

At Carbajal’s trial, the two women testified that they were sure his penis was out of his shorts, though neither saw his penis. They said it was obscured by his t-shirt, the table and his shorts.

One woman said he was “moving his fist up and down in his crotch area, but wasn’t sure whether his hand was inside or outside of his shorts. Carbajal’s girlfriend testified that he had a rash on his testicles and that she frequently saw him reach his hand down inside his pants to scratch that area, but she never saw him do this in public. Carbajal used a white cream, about the consistency of a thick lotion, for his rash. But she had never seen him apply the cream in public before.

The jury convicted Carbajal of indecent exposure and lewd conduct.

On appeal, he contended that the evidence (the women’s testimony) did not support the conviction. In short, he argued that someone had to see the exposure of his penis for him to be convicted of the crime.

The appellate court, however, said that the actual exposure of the penis does not have to be seen by the “naked eye.” For example, the court cited cases where men dropped their pants, but their female victims covered their eyes and turned away. Those courts found an exposure occurred based upon the act of dropping one’s pants and the presumption that an exposed penis would be there.

One case even held that a man who mooned a woman could be convicted of indecent exposure because a jury could find that that his “genitals and anus were exposed as well.” But other courts have taken the view that the witness must actually see the genitals because the man could be wearing something to cover his genitals.

This Carbajal court, however, held that the prosecution can prove that exposure occurred by circumstantial evidence. Here, the court noted that it was enough that two witnesses saw him rubbing himself and that there was fluid on the floor.

The appellate court is wrong. The policy behind indecent exposure statutes is that the perpetrator is intentionally exposing himself to another for the purpose of sexually gratifying himself while creating a sexually hostile environment for the observers.

The California Supreme Court should reverse this lower court decision and the California legislature should re-write the indecent exposure statute so that the victim must actually see the body part exposed and be offended.

For males who wear loose-fitting and sagging shorts and pants, if they have a case of jock-itch, under this current rule, they are susceptible to a charge of indecent exposure if they scratch their crotch. This is because there’s a possibility that they might have their penis above the waistline. (Women will find this another advantage of not having a penis.)

In an era where both females and males are wearing thong underwear, the simple act of bending over today could land someone in jail as a registered sex offender.