Can a Virginia jail inmate be criminally charged with indecent exposure or obscene sexual display for acts committed inside the jail?

Plain-English summary

The Norfolk Sheriff asked whether a jail can count as a "public place" under Virginia's indecent exposure statute (§ 18.2-387) and obscene sexual display statute (§ 18.2-387.1), so that an inmate could be charged with those offenses for acts committed inside the jail.

Attorney General Mark R. Herring concluded the answer was yes, in some circumstances. He pointed to two Court of Appeals decisions, Barnes v. Commonwealth, 61 Va. App. 495 (2013), and Cooper v. City of Va. Beach (unpublished 2013), that defined a "public place" for these statutes as a place or circumstance where the offender does not have a reasonable expectation of privacy "because of the foreseeability of a non-consenting public witness."

That definition pulls jail conduct into a fact-driven analysis. Some places inside a jail (a single-cell shower, perhaps, or an attorney-client interview room) might support a reasonable privacy expectation. Others (a day room with deputies and other inmates moving through, a holding cell visible to staff and visitors, a recreation area) won't, because a non-consenting witness is reasonably foreseeable. Where there is no such expectation of privacy, an inmate can be charged with violating § 18.2-387 or § 18.2-387.1, provided the other statutory elements are met.

The AG was careful to flag the limits of his role: AG opinions traditionally avoid resolving factual disputes, and the application of criminal-offense elements to particular facts belongs to the Commonwealth's Attorney, the grand jury, and the trier of fact. The opinion offered general legal guidance, not a charging decision.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The text of §§ 18.2-387 and 18.2-387.1 has been amended periodically in the years since this opinion, and Virginia case law on the "public place" element has continued to develop. Anyone evaluating a current charge or defense should re-check the current statutory text and case law.

Background and statutory framework

Section 18.2-387 makes it a Class 1 misdemeanor for any person to intentionally make an "obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present." Section 18.2-387.1 covers obscene sexual display, including masturbation, in a public place or where others are present.

The Supreme Court of Virginia had not addressed whether a jail qualifies as a public place under these statutes at the time of the opinion. The Virginia Court of Appeals had. In Barnes v. Commonwealth, 61 Va. App. 495, 500 (2013), and the unpublished Cooper v. City of Va. Beach (2013), both involving inmate conduct in jail, the court adopted a test focused on reasonable expectation of privacy. A "public place" is one where the offender does not have a reasonable expectation of privacy "because of the foreseeability of a non-consenting public witness."

That test is location- and circumstance-specific. Some areas of a jail genuinely afford a reasonable expectation of privacy, and some do not. The opinion expressly acknowledged that "[t]here may be certain places or circumstances within the jail setting in which an inmate has an expectation of privacy." Where that expectation is absent, charging is available so long as the other elements of the offense are present.

The AG declined to draw lines between specific jail locations or scenarios. He cited two prior AG opinions (most prominently 2008 Op. Va. Att'y Gen. 3, 5) for the long-standing principle that AGs avoid issuing opinions on fact-bound matters reserved to prosecutors, grand juries, and fact-finders. The opinion is general guidance on the legal standard, not a green light for any particular prosecution.

Common questions

Q: Can a Virginia inmate be prosecuted for indecent exposure for an act inside the jail?
A: The AG concluded yes, in some circumstances. A jail may be a "public place" under §§ 18.2-387 and 18.2-387.1 when the inmate has no reasonable expectation of privacy because a non-consenting public witness is reasonably foreseeable.

Q: Does that mean every jail location counts as a "public place"?
A: No. The opinion acknowledged that some places within a jail support a reasonable expectation of privacy. The test is fact-specific to the location and the surrounding circumstances.

Q: Who decides whether a particular jail location qualifies?
A: The Commonwealth's Attorney decides whether to charge; the grand jury or magistrate decides probable cause; the trial court or jury decides guilt. The AG opinion frames the legal standard but does not resolve specific factual disputes.

Q: What is the source of the "reasonable expectation of privacy" test for indecent exposure?
A: The Virginia Court of Appeals adopted it in Barnes v. Commonwealth, 61 Va. App. 495 (2013), and applied it in Cooper v. City of Va. Beach (unpublished 2013).

Q: What about exposure that is accidental or in a single occupancy cell at night?
A: Those facts would weigh in favor of a reasonable expectation of privacy, but the AG declined to draw bright lines. The opinion left specific scenarios to the prosecutor and fact-finder.

Q: Does the inmate need to know they were being watched?
A: The test focuses on reasonable foreseeability of a non-consenting witness, not actual knowledge. The mens rea required by §§ 18.2-387 and 18.2-387.1 is a separate question that the opinion does not address in detail.

Citations and references

Virginia statutes:

• Va. Code Ann. § 18.2-387 (indecent exposure)
• Va. Code Ann. § 18.2-387.1 (obscene sexual display)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Barnes v. Commonwealth, 61 Va. App. 495 (2013)
• Cooper v. City of Va. Beach, No. 2340-12-1, 2013 Va. App. LEXIS 388 (Dec. 17, 2013) (unpublished)

Prior AG opinions:

• 2008 Op. Va. Att'y Gen. 3 (declining factual determinations)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-025-McCabe---issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

November 10, 2016

The Honorable Robert J. McCabe
Sheriff, City of Norfolk
Norfolk Sheriff's Office
811 East City Hall Avenue
Norfolk, Virginia 23510

Dear Sheriff McCabe:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a jail is a "public place" for purposes of §§ 18.2-387 and 18.2-387.1 of the Code of Virginia, provisions prohibiting indecent exposure and obscene sexual display, respectively. Specifically, you ask whether an inmate may be charged with indecent exposure or obscene sexual display for certain acts that take place inside a jail.

Applicable Law and Discussion

Although the Supreme Court of Virginia has not addressed the issue you present, the Court of Appeals of Virginia has held in two cases addressing conduct occurring while an inmate was in jail that a "public place" as used in §§ 18.2-387 and 18.2-387.1 "comprises places and circumstances where the offender does not have a reasonable expectation of privacy, because of the foreseeability of a non-consenting public witness."[1]

There may be certain places or circumstances within the jail setting in which an inmate has an expectation of privacy. However, where there is no such expectation of privacy due to the foreseeability of a non-consenting public witness, an inmate may be charged with violating §§ 18.2-387 or 18.2-387.1, provided the other elements of the pertinent offense are present.[2]

Conclusion

Accordingly, it is my opinion that a jail may be a "public place" for purposes of §§ 18.2-387 and 18.2-387.1, provided the conduct in question occurs in an area of the jail or under circumstances where an inmate does not have a reasonable expectation of privacy due to the foreseeability of a non-consenting public witness.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Barnes v. Commonwealth, 61 Va. App. 495, 500 (2013); Cooper v. City of Va. Beach, No. 2340-12-1, 2013 Va. App. LEXIS 388, at *3 (Dec. 17, 2013) (unpublished decision).

[2] I note that Attorneys General have historically declined to issue opinions on matters requiring factual determination. See 2008 Op. Va. Att'y Gen. 3, 5. Further, "prior opinions of the Attorney General have concluded that the application of various elements of a criminal offense to a specific set of facts is a function properly reserved to the Commonwealth's Attorney, the grand jury, and the trier of fact . . . ." Id. Thus, this opinion is intended to provide general guidance only as to the current state of the law.