criminal act on a SEPTA train

An off-duty Septa Police Officer named Kevin Fant was caught masturbating on a Septa train in Philadelphia. He was prosecuted, found guilty, and sentenced. The question is what is the crime of masturbating in public and is it a Megan’s Law offense?

He was found guilty of two counts: M2 18 § 3127 §§A Indecent Exposure and  M3 18 § 5901 Open Lewdness. He are the statutes:

§ 3127. Indecent exposure. 

(a) Offense defined.–A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.

(b) Grading.–If the person knows or should have known that any of the persons present are less than 16 years of age, indecent exposure under subsection (a) is a misdemeanor of the first degree. Otherwise, indecent exposure under subsection (a) is a misdemeanor of the second degree.

§ 5901. Open lewdness.

A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.

In this case, there was a video of the act. There was a dispute over whether the video had been manipulated, but no dispute over the act in the video. I have no idea what the criminal defense attorney argued about the manipulation, but I would have argued that the video is not self-authenticating and that the commonwealth needs to bring in the person who took the video to authenticate it. Most likely, the judge who heard this case ruled the video speaks for itself. Not sure if this is the correct legal ruling or what actually happened.

Witnesses were called who positively identified Fant as the person seen in the video. Apparently, you can see Fant in the video doing the act and continuing to do the act even after he realized he was being filmed. The film was not shown in court and the judge did not review it in chambers. If Fant was identified and it is him in the video, I would guess the only question is whether he exposed his genitalia or if his genitalia remained in his shorts during the entire incident. If his genitalia were in his shorts the whole time, I think he would have been guilty of Open Lewdness and not guilty of Indecent Exposure.

While these are both sex crimes, Indecent Exposure, and Open Lewdness are not included in Pennsylvania’s Megan’s Law Statute in Pennsylvania. Open Lewdness can lead to being on Megan’s Law in Pennsylvania if the open lewdness is found in conjunction with a charge for Unlawful Contact with a Minor (18 Pa. C.S. § 6318), otherwise, Open Lewdness is not a Megan’s Law Offense.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.