IV. Offenses Against Public Decency
Chapter 10.24
LEWD CONDUCT AND RELATED OFFENSES
Sections:
10.24.025 Facilitating lewd conduct.
10.24.030 Soliciting for a lewd act.
10.24.040 Indecent solicitation.
10.24.100 Prostitution—Acts designated— Exemptions.
10.24.110 Prostitution loitering—Acts designated.
10.24.120 Prostitution—Sex of parties immaterial—No defense.
10.24.130 Permitting prostitution.
10.24.140 Patronizing a prostitute.
10.24.150 Failure to register as sex offender or kidnapping offender—Refusal to provide DNA.
10.24.200 Urinating in public.
10.24.210 Stay out of areas of prostitution orders—Issuance—Form—Violation.
10.24.230 Prohibited areas—Additional administrative restrictions.
10.24.010 Definitions.
As used in this chapter, the following definitions shall apply:
A. A “lewd act” is:
1. An exposure or display of one’s genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast; or
2. An exposure of more than one-half of the part of the female breast located below the top of the areola; provided, that the covered area shall be covered by opaque material and coverage shall be contiguous to the areola. Body paint is not “opaque material”; or
3. The touching, caressing or fondling of the genitals or female breasts; or
4. Masturbation; or
5. Sexual conduct.
B. “Exposure” as used in the definition of “lewd conduct” occurs when the body part is not covered with opaque material that does not become transparent when exposed to water or light. Coverage by body paint or other nonmaterial substance designed to simulate uncovered body parts shall not qualify as opaque.
C. “Public place” means an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window.
D. “Sexual conduct” means sexual intercourse or any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party, whether such persons are the same or opposite sex.
E. For purposes of this chapter, any activity is obscene:
1. Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
2. Which explicitly depicts or describes patently offensive representations or descriptions of:
a. Ultimate sexual acts, normal or perverted, actual or simulated, or
b. Masturbation, fellatio, cunnilingus, bestiality, excretory functions or lewd exhibition of the genitals or genital area, or
c. Violent or destructive sexual acts including but not limited to human or animal mutilation, dismemberment, rape or torture; and
3. Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. For purposes of this chapter, an activity is dramatic if the activity is of, relating to, devoted to, or concerned specifically or professionally with current drama or the contemporary theater. (Ord. 3559-17 § 1, 2017: Ord. 3145-09 § 1, 2009: amended during 1/88 supplement; Ord. 1145-85 § 94, 1985)
10.24.020 Lewd conduct.
A. A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. The act of breastfeeding or expressing breast milk is not lewd conduct.
B. Lewd conduct is a misdemeanor.
C. This section shall not be construed to prohibit:
1. Plays, operas, musicals or other dramatic works which are not obscene;
2. Classes, seminars and lectures held for serious scientific or educational purposes;
3. Exhibitions, performances or dances which are not obscene;
4. Adult entertainment activities operating pursuant to Chapter 5.120 EMC; or
5. Adult cabaret activities operating pursuant to Chapter 5.128 EMC. (Ord. 3145-09 § 2, 2009: Ord. 2542-01 § 1, 2001: amended during 1/88 supplement; Ord. 1145-85 § 95, 1985)
10.24.025 Facilitating lewd conduct.
A. The owner, lessee, lessor, manager, operator, or other person in charge of a public place is guilty of facilitating lewd conduct if the person knowingly permits, encourages, or causes to be committed lewd conduct as prohibited in Section 10.24.020.
B. Facilitating lewd conduct is a gross misdemeanor. (Ord. 3559-17 § 2, 2017)
10.24.030 Soliciting for a lewd act.
Every person who solicits another to engage in a lewd act in a public place shall be guilty of a misdemeanor. (Amended during 1/88 supplement; Ord. 1145-85 § 96, 1985)
10.24.035 Indecent exposure.
RCW 9A.88.010, as now enacted or hereinafter amended, is hereby adopted by reference as if fully set forth herein, including penalties; except that conduct constituting a felony, as determined by the prosecutor, is excluded. (Ord. 3145-09 § 3, 2009)
10.24.040 Indecent solicitation.
A. A person commits the crime of indecent solicitation when he or she follows, pursues, ogles, accosts, or molests another person by or with the use of lewd or indecent solicitations or language in any public place in the city.
B. Indecent solicitation is a misdemeanor, and may be punished by a fine of not more than one thousand dollars. (Amended during 1/88 supplement; Ord. 1145-85 § 97, 1985)
10.24.100 Prostitution—Acts designated— Exemptions.
A. A person is guilty of “prostitution” if such person engages in or agrees or offers to engage in sexual conduct with another person in return for a fee.
B. Prostitution is a misdemeanor.
C. For purposes of this chapter, “prostitution” does not include sexual conduct engaged in as part of any stage performance, play or other entertainment open to the public. (Amended during 1/88 supplement; Ord. 1145-85 § 98, 1985)
10.24.110 Prostitution loitering—Acts designated.
A. A person commits the offense of “prostitution loitering” if he or she remains in a public place and intentionally solicits, induces, entices or procures another to prostitution. Among the circumstances which may be considered in determining whether a person intentionally solicits, induces, entices or procures another to commit prostitution are:
1. Repeatedly beckoning to, stopping, or attempting to stop or engage passersby in conversation; or
2. Repeatedly stopping or attempting to stop motor vehicle operators by hailing, waving of arms or other bodily gestures; or
3. Being a known prostitute or panderer. “Known prostitute or panderer” means a person who within one year previous of date of arrest for any violation hereof is known by the arresting officer to have been convicted of an offense involving prostitution; or
4. That the actor inquires whether a potential patron, procurer or prostitute is a police officer or requests the touching of genitals or female breasts or requests exposure of genitals or female breasts with the purpose of establishing that the person is not a police officer.
B. A person who violates this section is guilty of a gross misdemeanor. Upon the first such conviction, the person shall be punished by imprisonment for not less than ten days and a fine of not less than two hundred fifty dollars. Upon the second conviction, the person shall be punished by imprisonment for not less than ninety days and a fine of not less than five hundred dollars. Upon the third or subsequent conviction, the person shall be punished by imprisonment for not less than one hundred eighty days and a fine of not less than one thousand dollars. The minimum sentence of confinement and fine required shall not be suspended or deferred. (Ord. 2268-98 § 1, 1998: Ord. 2185-96 § 1, 1996; amended during 1/88 supplement; Ord. 1145-85 § 99, 1985)
10.24.120 Prostitution—Sex of parties immaterial—No defense.
In any prosecution for prostitution, the sex of the two parties or prospective parties to the sexual conduct engaged in, contemplated, or solicited is immaterial, and it is no defense that: (1) such persons were of the same sex; or (2) the person who received, agreed to receive, or solicited a fee was a male and the person who paid or agreed or offered to pay such fee was female. (Ord. 1567-89 § 1, 1989)
10.24.130 Permitting prostitution.
A. A person is guilty of permitting prostitution if, having possession or control of premises which he or she knows are being used for prostitution purposes, he or she fails to make reasonable effort to halt or abate such use.
B. Permitting prostitution is a misdemeanor. (Ord. 3551-17 § 1, 2017: Ord. 1567-89 § 2, 1989)
10.24.140 Patronizing a prostitute.
RCW 9A.88.110, as currently enacted or later amended, is adopted by reference as if set forth in full herein. (Ord. 3654-19 § 5, 2019: Ord. 3552-17 § 1, 2017: Ord. 1567-89 § 3, 1989)
10.24.150 Failure to register as sex offender or kidnapping offender—Refusal to provide DNA.
RCW 9A.44.132 as currently enacted or later amended is adopted by reference as if set forth in full herein. (Ord. 3654-19 § 6, 2019: Ord. 2316-98 § 1, 1998: Ord. 2267-98 § 1, 1998: Ord. 1825-91 § 1, 1991)
10.24.200 Urinating in public.
A. A person is guilty of urinating in public if he intentionally urinates or defecates in a public place other than a wash room or toilet room.
B. Urinating in public is a misdemeanor, and may be punished by a fine not to exceed one thousand dollars. (Amended during 1/88 supplement; Ord. 1145-85 § 100, 1985)
10.24.210 Stay out of areas of prostitution orders—Issuance—Form—Violation.
A. Any judge or judge pro tempore of the Everett municipal court may issue a written stay out of areas of prostitution order, hereinafter known as a SOAP order, to anyone charged with or convicted of prostitution, soliciting for a lewd act, prostitution loitering or patronizing a prostitute under this chapter as a condition of pretrial release or as a condition of suspension or deferral of their sentences.
B. SOAP orders must be substantially in the form described in this section.
C. The SOAP order shall contain the court’s directives and shall bear the legend:
WARNING: Violation of this Order is a criminal offense under Chapter 10.24 EMC and will subject a violator to arrest.
D. Whenever a police officer shall have probable cause to believe that a person is subject to a SOAP order, knows of the order, and in the officer’s presence is violating or failing to comply with any requirement or restriction imposed by the order, such officer may arrest the violator without warrant or other process and bring said person before the court issuing the order.
E. A person is deemed to have notice of the SOAP order when the signature of the person named in the order or their attorney is affixed to the bottom of the order, signifying that they have read the order and have knowledge of the contents of the order.
F. Whenever a SOAP order is issued under this section, and the person named in the order knows of the order, a violation of any of the provisions of the order is a gross misdemeanor. Upon the first such conviction, the person shall be punished by imprisonment for not less than ten days and a fine of not less than two hundred fifty dollars. Upon the second conviction, the person shall be punished by imprisonment for not less than ninety days and a fine of not less than five hundred dollars. Upon the third or subsequent conviction, the person shall be punished by imprisonment for not less than one hundred eighty days and a fine of not less than one thousand dollars. The minimum sentence of confinement and fine required shall not be suspended or deferred.
G. Nothing in any provision of this chapter related to SOAP orders shall be construed as prohibiting the subject of a SOAP order from participating in a scheduled court hearing or from attending a scheduled meeting with his/her legal counsel within a prohibited area. (Ord. 3047-07 § 1, 2007: Ord 2268-98 § 2, 1998: Ord. 2176-96 § 1, 1996: Ord. 2045-95 § 1, 1995: Ord. 1973-93 § 2, 1993)
10.24.220 Stay out of areas of prostitution orders—Prohibited areas—Designation—Modification and termination.
A. Whenever a SOAP order is issued under this chapter, the subject of the order shall be ordered to stay out of certain areas that are set forth therein. These areas will hereinafter be referred to as “prohibited areas.”
B. Prohibited areas that are set forth in SOAP orders shall be established by a resolution of the city council, at a minimum of every two years.
C. The police department shall provide information to the city council to support establishment and/or the elimination of prohibited areas in the form of one or more declarations and/or other sworn testimony. The declaration(s) and/or other sworn testimony shall:
1. Be by declarant(s) familiar with areas of the city that suffer a high incidence of prostitution;
2. Set forth the education, experience and other relevant qualifications of the declarant(s);
3. Set forth the basis for proposing prohibited areas, e.g., crime mapping data or other information;
4. Describe the proposed prohibited areas; and
5. Provide other information that supports the council’s review and determination of prohibited areas.
D. Upon request for modification or termination of a SOAP order, the municipal court shall consider the requested modification or termination by allowing for a process by which the subject of the order can provide relevant testimony or other evidence in support of his/her request.
E. Unless otherwise ordered by the court, a SOAP order shall have as its termination date two years from the date of its issuance.
F. Whenever a SOAP order is issued, modified or terminated under this chapter, the clerk of the court shall forward a copy of the order on or before the next judicial day to the Everett police department. Upon receipt of the copy of the order, the Everett police department shall enter the order until the expiration date specified on the order into any computer-based criminal intelligence information system(s) available to Everett police officers. Upon receipt of notice that an order has been terminated, the Everett police department shall remove the order from the computer-based criminal intelligence information system(s). (Ord. 3047-07 § 2, 2007)
10.24.230 Prohibited areas—Additional administrative restrictions.
If the traffic engineer or his designee, in consultation with the police chief or his designee, determines that the use of public rights-of-way for parking in a prohibited area contributes to prostitution crime in the area, he may designate the area a permit parking zone.
A. Any prohibited area may be designated a permit parking zone and, if so designated, permits shall be issued to property and business owners, employees and residents within the prohibited area.
B. The city clerk is authorized to issue permits for permit parking on public rights-of-way within the designated permit parking zone. Additionally, the city clerk is authorized to promulgate the rules and regulations to administer this program, including but not limited to rules governing eligibility for a permit, application process, permit fee, visitor’s permits and the revocation or surrender of a parking permit.
C. Vehicles parked in a designated permit parking zone as provided herein, without a valid permit or visitor’s permit which permit is properly displayed, are in violation of and subject to the provisions of Chapter 46.28.
D. Permit parking zones may be designated a tow-away zone. Vehicles parked in a permit parking zone, designated as provided herein, also posted a tow-away zone, without a valid permit or visitor’s permit are subject to impound by a private property owner in accordance with Chapter 46.55 RCW, or a police officer or parking enforcement officer in accordance with Chapter 46.10. (Ord. 3047-07 § 3, 2007)