The question presented is whether private sexual conduct constitutes the offense of lewdness under the Code.
The defendant is charged with aggravated sexual assault and sexual assault. The defendant wishes the court to instruct the jury of the additional charge of lewdness.
The victim is a seven-year-old child. It is alleged that the defendant sexually assaulted her by touching her private parts. These acts were performed in a private setting and not observed by other persons.
The defendant contends that the acts in question constitute the offense of lewdness, a disorderly persons offense, and should be submitted to the jury as a lesser included offense.
The history of both the common law and early legislative definitions of lewdness sheds light on the scope of the offense under the Code.
Under the common law lewdness referred to acts committed in public. In State v. Brenner, 132 N.J.L. 607 (E. & A.1945), the Court of Errors and Appeals, commenting on the common law of lewdness, stated:
In that system, "lewdness" signifies open and public indecency and is punishable as a common nuisance, injurious to public morals; and it is therefore essential that the lewd act be committed in a public place, and be seen by persons lawfully in that place. Private or secret indecency is not criminal, since the common law does not deem such offensive to the public morality. Indecent exposure in the presence of but one person, although in a place of public resort, no others being able to see it at the time, has been held not to be a common
nuisance and therefore not an indictable offense at common law. [ Id. at 609-610; citations omitted].
Title 2A, the predecessor of the Code, broadened the common law offense of lewdness to include both acts committed in public as well as certain private acts not witnessed by third persons. Thus, Title 2A defined lewdness as follows:
N.J.S.A. 2A:115-1, Lewdness or indecency.
Any person who commits open lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to ...