Nearly one in two couples has already made love outdoors, according to figures from Catherine Troadec, sexologist, in the columns of In the backseat of a car, on the hot sand of a beach, in an elevator… Only here: sex in a public place can be heavily punished by law. What are you risking, exactly? What is allowed, and what is prohibited? Avi Bitton, a criminal lawyer, sheds light on the subject.

Avi Bitton. “The offense of sexual exhibition is an offense punishable by article 222-32 of the Penal Code which provides that ‘sexual exhibition imposed in the sight of others in a place accessible to the gaze of the public is punished by a one year’s imprisonment and a fine of 15,000 euros”. The penalty is increased to two years’ imprisonment and a fine of 30,000 euros when the acts have been committed to the detriment of a minor under the age of fifteen. Obviously, these are maximum penalties and the courts may moderate them according to the seriousness of the facts and the personality of the defendants (no criminal record, etc.).

The legal text imposes the meeting of three conditions for the offense to be constituted: an act of sexual exhibition, in a place accessible to the public gaze, with the desire to impose this spectacle on others.

How are these conditions assessed? Master Bitton takes stock.

Avi Bitton. “The act of sexual exhibition is an act of an immodest nature which consists of the exposure of one’s nudity, of a sexual part of the body or may even include the exhibition of sexual intercourse carried out in public, without the sexual parts of the protagonists are apparent.

(…) However, a reform recently came to specify that: ‘Even in the absence of exposure of a bare part of the body, sexual exhibition is constituted if it is imposed on the sight of others, in a place accessible to public view, the explicit commission of a sexual act, real or simulated’.

It should be noted that the act of sexual exhibition does not involve any physical contact between the author and the victim, namely the person who attends the scene (in the case where there is contact, we will speak of an attack sexual assault, sexual assault or rape)”.

In addition, there is an offense if the act is carried out in a place accessible to the gaze of the public…

Avi Bitton. “It can be a public place such as a street, a forest, a beach, a car park but also places accessible to the public, whether public buildings (such as hospitals, schools, administrations, prisons, etc. ), public transport (trains, planes, taxis, etc.) and even private places where the public can enter during certain hours (hotels, shops, theatres, cinemas, etc.), not to mention workplaces.

It was thus judged that the counter of a hotel hall, the toilets of a restaurant, a law office or a driving school vehicle were incriminated places. But also from a private place accessible to third parties (it is the publicity of the act that is repressed): house, apartment, bedroom, garden when these are accessible to third parties.

For example, it was judged concerning a woman who performed oral sex on a man in a car, that: ‘The sexual relationship took place in full view of all the people who could drive near this vehicle and in full sight of the residents, the the fact that the city light illuminated the interior of the car very clearly.

It is therefore enough for a single involuntary witness to the exhibition to constitute the offence”.

It is also necessary that the author of the exhibition has “the will to impose the act on others”…

Avi Bitton. “Sexual exhibition must be ‘imposed on the sight of others’. We deduce that it is not punishable when it is not imposed on the sight of others (swingers’ clubs, striptease cabaret …).

Thus, in a decision of December 13, 1994, the Court of Paris affirmed that ‘the fact of being in a vehicle parked in a car park, with all the doors closed, which due to the position of the persons concerned is not visible to the external, does not allow to say that the act was imposed in the sight of others’.

The fact that the person has taken all his precautions does not change the illegal nature of the act (note that the act in question must meet the three conditions mentioned above to constitute the offense of sexual exhibition)”.