The answer is typically yes. This Salt Lake City ordinance is typical of what many cities have: “It is unlawful for any person; while in a place open to public view, to willfully… [e]ngage in sexual conduct… [, or]… [m]ake an intentional exposure of his or her genitals.” Salt Lake City Code § 11.16.100.
However, if a person has to pee so badly that his bladder is about to burst, must he also pee his pants in public? Or, if a person has a really bad case of diarrhea and just cannot get to a bathroom, must he really be forced to poop his pants in public? So, the question is asked: at what point do we say, “Hey, sometimes when nature calls, you just gotta answer the phone!”? This is sometimes called the defense of private necessity. In other words, “Hey, I didn’t want to do what I did, but I really had no other choice! In essence, I was forced to do what I did.”
That being said, the case may not be as easy for the prosecutor as you may first think. Utah has a small population, which means that it simply does not have as many court decisions as other states. So, Utah judges will often look to courts of other states to see what they did with such issues, and the leading cases on going potty in public come from New York. New York law is often followed by the rest of the nation. One New York appellate court unanimously reversed such a conviction on the ground that “there was a reasonable doubt whether defendant’s conduct resulted from a momentary and unanticipatable lack of physical control. People v. Carter (N.Y. App. Div. 1961).
In other words, “It just hit me. I was not expecting it. I had no physical ability to stop the urge!”
Another New York Court said this: “The court emphasizes that a defendant cannot ordinarily be found guilty of disorderly conduct merely upon proof that he urinated in a public place. A persuasive defense of urgency, necessity or incontinence, at least when coupled with the unavailability of nearby restroom facilities and with reasonable efforts by the defendant to conceal his act, would negative some or all of the elements required for conviction.” People v Cooke, Rockland County. October 18, 1991
The Cooke case made it clear that an anti-urination law could not be be used as a “dragnet” to rid the streets of those “whose lifestyle the community may regard as undesirable.” However, the court said that particular defendant was guilty for peeing in public. It said, “the court concludes beyond a reasonable doubt that the defendant urinated in public and that his act of public urination served no legitimate purpose, since he had left a tavern where there was an available men’s room only a few moments before and he was still less than a block away, yet he chose to urinate in public view under a street lamp on a main thoroughfare without even making an effort to return to the tavern or to conceal himself.” Italics added.
Had the peeing by the defendant been some sort of “expression”, he may have had a chance, but the court said, “In the present case, there was no claim that the defendant’s conduct constituted even symbolic speech. In any event, such a form of expression could be barred. And the court was bothered by the fact that the defendant created a “physically offensive condition” in the “public glare, without legitimate purpose or necessity, and in the total absence of any attempt to conceal the act from public view.”
The court then said this: The court finds beyond a reasonable doubt . . . the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that the public would be annoyed and alarmed by his physically offensive act. The court also finds that the risk consciously disregarded by the defendant was of such nature and degree that his disregard thereof constituted a gross deviation from the standard of conduct that a reasonable person would have observed in the situation, since such a person would either have returned to the nearby tavern to urinate or at least would have attempted to shield his act from public view.
Greg Smith